author: POSNER, Circuit Judge.

text:
    Daniel MEDICI, Dennis Leet, and John Kukielka, on behalf of themselves and all others similarly situated, Plaintiffs [Medici and Kukielka are also Appellants], v. CITY OF CHICAGO, Defendant-Appellee.
    No. 15-3610
    United States Court of Appeals, Seventh Circuit.
    Argued April 7, 2017
    Decided May 10, 2017

      Linda Debra Friedman, Senior Attorney, Stowell & Friedman, Ltd., Chicago, IL, for Daniel Medici and John Kukielka.
    Stephen G. Collins, Attorney, City of Chicago Law Department, Chicago, IL, for Defendant-Appellee.
    Before POSNER, RIPPLE, and SYKES, Circuit Judges.
   POSNER, Circuit Judge.

On July 2, 2015, the three plaintiffs filed this suit against the City of Chicago. Eventually they lost in the district court and two of them—Medici and Kukielka—have appealed.

The plaintiffs are military veterans currently employed as Chicago police officers. All three have tattoos relating to their military service and to their religion. Medici’s is a tattoo of a pair of wings with a halo, a symbol he displays to honor members of the U.S. military services killed in combat. Leet’s and Kukielka’s tattoos depict St. Michael, the archangel who is the patron saint of warriors, including (in modern times) police officers, paramedics, and firefighters.

The plaintiffs’ suit had been precipitated by an order issued by the Chicago Police Department on June 8, 2015 (slightly more than a month before the suit was filed), with no prior notice to, or discussion with, the plaintiffs or other tattooed police officers. The order required all police officers on duty or otherwise “representing” the police department (it’s not clear what is meant by “representing”) to cover all their tattoos, either with clothing, or on parts of the body not covered by clothing with either a bandage or what is called “cover-up tape.” The order was not limited to offensive tattoos, such as those conveying a racist or sexist message; all visible tattoos were outlawed. The announced reason for the order was to “promote uniformity and professionalism.”

.The plaintiffs complain that covering their tattoos with clothing causes overheating in warm weather and that cover-up tape irritates their skin. But these complaints are not the basis of the suit. Rather the basis is a claim that the police department’s order violates the plaintiffs’ right to free speech, which in the context of public employment means their right as citizens to communicate to the public their views on matters of public interest or concern, Pickering v. Board of Education of Township High School District 205, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), such as the heroism and suffering of members of the armed services. The complaint sought both a declaratory judgment that the order violates the plaintiffs’ First Amendment rights, and attorneys’ fees and costs, plus “such other legal and/or equitable relief as [the court] may deem proper.” The complaint also asked that the suit be converted to a class action on behalf of all Chicago police officers affected by and opposed to the department’s order.

Without reaching the issue of class certification and before any discovery, the district court dismissed the suit on the merits, basically on two grounds: that the wearing of the tattoos was a “personal expression” rather than an effort at communicating with the public on matters of public concern, and hence was not protected by the First Amendment, and that the challenged order would promote uniformity and professionalism and thus was a good thing—so good as not to be outweighed by the plaintiffs’ interest in communicating with the public by means of their tattoos.

Complicating the controversy—and in fact as we’ll see rendering the lawsuit moot—the police union filed a grievance against the City claiming that the tattoo order violated the union’s collective bargaining agreement with the City, which had issued the order without bargaining over the issue with the union as it should have done because the order affected the police officers’ working conditions. The grievance was referred to arbitration and the arbitrator ruled that the tattoo order violated the collective bargaining agreement because of the absence of any bargaining over the order, and the City would therefore have to revoke the order and compensate the officers for any costs incurred by them in complying with it. The City folded—and having done so moved our court to dismiss the plaintiffs’ appeal as moot on the ground that as a result of the arbitration the plaintiffs’ had obtained the relief they had sought.

Aside from seeking a declaratory judgment that would require the City to revoke its order, the plaintiffs’ complaint had sought attorneys’ fees, costs, and disbursements—but also “such other legal and/or equitable relief as [the court] may deem proper,” an umbrella term that could include damages, although damages were not mentioned specifically. After the arbitration the City agreed to reimburse its police officers for money they had spent to comply with the now-invalidated policy, so any direct financial loss the plaintiffs suffered has presumably been remedied. And remember that they had never asked the district court to award damages, and as a result there’s no mention of damages in that court’s opinion. Although “Rule 54(c) of the civil rules entitles a prevailing plaintiff to the relief proper to his claim even if he did not request that relief, ... there is ... an exception ... for eases in which a damages claim is added at the last minute in a desperate effort to stave off the dismissal of the case as moot.” Chicago United Industries, Ltd. v. City of Chicago, 445 F.3d 940, 948 (7th Cir. 2006); Arizonans for Official English v. Arizona, 520 U.S. 43, 71, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997). That’s this case.

So what should be done with the district judge’s grant of judgment in favor of the City? The answer is “vacatur [that is, erasing a judgment so that its legal effect is as if it had never been written, vacatur being Latin for “it is made void”] is in order when mootness occurs through ... the ‘unilateral action of the party who prevailed in the lower court.’ ” Arizonans for Official English v. Arizona, supra, 520 U.S. at 71-72, 117 S.Ct. 1055, citing U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U.S. 18, 23, 115 S.Ct. 386, 130 L.Ed.2d 233 (1994). That’s this case, the unilateral action of the City, which remember prevailed in the district court, having been its decision not to appeal the arbitration award obtained by the plaintiffs. Vacating a judgment when the appeal from it is moot (moot here because the plaintiffs prevailed as a result of the arbitration) saves the losers below (the plaintiffs, on the First Amendment issue in their complaint) from having a binding judgment against them on an issue they can no longer appeal because of mootness. The City, which would prefer to retain its favorable ruling on the law books, protests that the mootness came about through the plaintiffs’ act of filing the grievance, and was therefore not their own unilateral act, but it was the City that elected not to appeal the arbitration award.

The case is remanded to the district court with instructions to vacate its judgment as moot.


source: Caselaw Access Project

author: BENTON, Circuit Judge.

license: Public Domain

text:
    Michael SULLIVAN, Petitioner-Appellant v. ENDEAVOR AIR, INC., formerly known as Pinnacle Airlines, Inc., formerly known as Express Airlines, Inc., formerly known as NWA Airlink, Defendant-Appellee
    No. 16-1653
    United States Court of Appeals, Eighth Circuit.
    Submitted: March 8, 2017
    Filed: May 8, 2017

      Counsel who represented the appellant was Paul Egtvedt of Minneapolis, MN.
    Counsel who represented the appellee was Alec J. Beck, of Minneapolis, MN., and Nancy Van der Veer Holt of Washington, DC.
    Before BENTON, BEAM, and MURPHY, Circuit Judges.
   BENTON, Circuit Judge.

Michael Sullivan appeals the district court’s denial of his Amended Petition to Vacate Arbitration Award. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.

I.

The petition seeks to vacate an arbitration award issued by a System Board of Adjustment pursuant to the Railway Labor Act, 45 U.S.C. § 151, et seq. The RLA states: “If any employee ... is aggrieved by any of the terms of an award ... then such employee ... may file in any United States district court ... a petition for review. ... On such review, the findings and order [of the Board] shall be conclusive on the parties....” 45 U.S.C. § 153(q). See United Paperworkers Int’l Union, AFL-CIO v. Misco, Inc., 484 U.S. 29, 37-38, 108 S.Ct. 364, 98 L.Ed.2d 286 (1987) (“Because the parties have contracted to have disputes settled by an arbitrator chosen by them rather than by a judge, it is the arbitrator’s view of the facts and of the meaning of the contract that they have agreed to accept. Courts thus do not sit to hear claims of factual or legal error by an arbitrator.... To resolve disputes about the application of a collective-bargaining agreement, an arbitrator must find facts and a court may not reject those findings simply because it disagrees with them.”); Hunt v. Northwest Air., Inc., 600 F.2d 176, 179 (8th Cir.) (decisions of airline boards under section 184 have the same legal characteristics and effect as those of the railroad board under section 153), cert. denied, 444 U.S. 946, 100 S.Ct. 3083, 62 L.Ed.2d 315 (1979). Although Sullivan disputes some of the facts set forth in the award, they are “conclusive,” and are the basis for the following facts.

Sullivan was a pilot for a predecessor to Endeavor Air, Inc. from 2001 until his termination in December 2006. Endeavor’s pilots are represented by the Air Line Pilots Association, International. The ALPA and Endeavor have a collective bargaining agreement (CBA).

Before 2006, Sullivan received “nondisciplinary counselings about such things as being late for a flight, trying to change out times to avoid a recorded late departure, and appearance.” He was never disciplined formally. On October 17, 2006, Endeavor issued him two “Written Letters of Warning,” for missing a flight and failing to keep certifications current. He did not grieve either warning; pursuant to the CBA, they became binding. Two weeks later, Endeavor disciplined him for violating company dress code and arriving late to a flight. It scheduled a meeting to discuss these violations. He missed the meeting, but the parties met the next day.

On November 29, Endeavor gave Sullivan a “Final Written Letter of Warning” about his “overall duty performance,” including:

duty performance, poor decision-making causing delayed flights, late arrival to the aircraft for showtime, inappropriate use of the ACARS system, failure to remain contactable, failure to report for meetings with company management, unprofessionalism, and substandard uniform compliance.

The letter stated his appearance and conduct had “fallen below the standards expected of you” and cautioned that “any further infractions against company policies and procedures will result in additional disciplinary action up to and including termination.” He again did not grieve the warning. It became binding.

On December 10, Sullivan made at least two sexually explicit comments to a female flight attendant. On December 11, he showed up late for a flight. Two weeks later, Endeavor fired him. In the termination letter, Endeavor cited his late arrival to the December 11 flight and inappropriate comments to the flight attendant in violation of the company’s anti-harassment policy.

Sullivan grieved his termination to a three-member System Board of Adjustment under the CBA. Arguing his termination was without “just cause,” he contended: (1) his comments to the flight attendant were not unlawful or violative of the anti-harassment policy; (2) his conduct did not warrant termination; and (3) Endeavor terminated him in retaliation for complaints he made to the Federal Aviation Administration. The Board rejected the claims, finding “just cause to terminate him.”

Sullivan petitioned the district court to vacate the arbitration award for three reasons: (1) it violated his due process rights; (2) the Board exceeded its jurisdiction by not drawing the essence of the award from the CBA; and (3) the Board improperly ignored past practice that requires less serious disciplinary measures. The court denied the petition. He appeals.

II.

This court reviews the district court’s “findings of law de novo and its factual findings on a clearly erroneous standard.” Brotherhood of Maint. of Way Emps. v. Soo Line R.R., 266 F.3d 907, 909 (8th Cir. 2001). “Judicial review of a labor-arbitration decision ... is very limited. Courts are not authorized to review the arbitrator’s decision on the merits despite allegations that the decision rests on factual errors or misinterprets the parties’ agreement.” Id., quoting Major League Baseball Players Ass’n v. Garvey, 532 U.S. 504, 509, 121 S.Ct. 1724, 149 L.Ed.2d 740 (2001).

Under the Railway Labor Act, “a Board’s decision may be set aside only for (1) failure to comply with RLA requirements, (2) failure to confíne itself to matters within its jurisdiction, or (3) fraud or corruption by a Board member.” Golf v. Dakota, Minn. & E. R.R. Corp., 276 F.3d 992, 996 (8th Cir. 2002), citing 45 U.S.C. § 153 First (q); Union Pac. R.R. Co. v. Sheehan, 439 U.S. 89, 93, 99 S.Ct. 399, 58 L.Ed.2d 354 (1978). See Ozark Air Lines, Inc. v. Air Line Pilots Ass’n, Int’l, 744 F.2d 1347, 1350 (8th Cir. 1984) (applying standard to decision of airline system board). “In addition to the statutorily created parameters of review, courts have recognized that ... arbitration decisions are reviewable for possible due process violations,” Goff, 276 F.3d at 997, and violations of “well-defined and dominant public policies.” Union Pac. R.R. Co. v. United Transp. Union, 3 F.3d 255, 258 (8th Cir. 1993).

III.

Sullivan claims a violation of “industrial due process,” arguing “[t]he Award allows Endeavor to terminate Sullivan without proper notice as to the quality of conduct for which he could be subject to termination.” Although “arbitration decisions are reviewable for possible due process violations,” review is limited to the procedural due process afforded by the arbitration itself, not alleged due process in the underlying action challenged. Goff, 276 F.3d at 997 (holding “due process requires that: (1) the Board be presented with a ‘full statement of the facts and all supporting data bearing upon the disputes,’ ... and (2) the ‘[p]arties may be heard either in person, by counsel, or by other representatives ... and the ... Board shall give due notice of all hearings to the employee’ ”), quoting 45 U.S.C. § 153 First (i), (j) (citation omitted). Sullivan does not allege any procedural deficiencies in the arbitration process. His procedural due process claim is without merit.

Alternatively, Sullivan says the award violates public policy because the “[provision of due process to airline employees is a dominant and well-defined part of public policy.” Courts may vacate arbitration awards that violate “well-defined and dominant” public policies only if those policies “can be ascertained by reference to the laws and legal precedents and not from general considerations of supposed public interests.” United Transp. Union, 3 F.3d at 258, 260-261, quoting W.R. Grace & Co. v. Local Union 759, Int’l Union of United Rubber, Cork, Linoleum & Plastic Workers of Am., 461 U.S. 757, 766, 103 S.Ct. 2177, 76 L.Ed.2d 298 (1983) (internal quotation marks omitted).

Sullivan does not explain how the award violates public policy. Rather, he contends the award affirms an action (his termination) that violates public policy (his due process rights). But this is not a valid reason to set aside an award. See generally id. at 261 (holding that reinstatement of the grievant, a railroad employee terminated for drug and alcohol use, violated the “well-defined and dominant public policy against a railroad’s employment of individuals whose impaired judgment due to the use of drugs or alcohol could seriously threaten public safety” and placed the railroad at risk of violating the Federal Railroad Administration regulations). Instead, it is an improper attempt to have this court decide the merits. of the Board’s decision. See Chauffeurs, Teamsters and Helpers Local Union No. 878 v. Coca-Cola Bottling Co., 613 F.2d 716, 717 (8th Cir. 1980) (“It is not within the scope of [this court’s] review to pass upon the merits of a grievance.”), quoting Kewanee Mach. v. Local U. No. 21, Int’l Bro., 593 F.2d 314, 316-317 (8th Cir. 1979). Courts are not “free to overturn any award with which they disagree.” United Transp. Union, 3 F.3d at 260. As the district court said, “it was the province of the [Board] to decide whether Sullivan’s termination was conducted with the necessary procedural due process,” and “the [Board] concluded that no violation occurred.” See generally Chauffeurs, 613 F.2d at 720-21 (upholding an arbitration award reinstating an employee because the arbitrator concluded that the lack of due process in the investigation meant that the employer did not have “just cause” to terminate). Sullivan’s disagreement with the Board’s determination that Endeavor did not violate his due process rights is not a reason to reverse the award. Id. at 720 (“While our interpretation of ‘just cause’ may differ from that of the arbitrator in this case, such disagreement is irrelevant to our review. We are not to review the merits.”).

IV.

Sullivan believes “the Award exceeded its jurisdiction and fails to draw its essence from the contract at issue because it fails to apply the plain policy language on which the termination was based.” Stated differently, he thinks Endeavor’s anti-harassment policy prohibits only unlawful harassment, making his comments to the flight attendant outside its scope.

A Board award is “enforceable as within the scope of the board’s jurisdiction unless the award is ‘without foundation in reason or fact.’ ” International Ass’n of Machinists & Aerospace Workers, AFL-CIO v. Northwest Air., Inc., 858 F.2d 427, 430 (8th Cir. 1988), quoting Brotherhood of Ry., Airline & S.S. Clerks v. Kansas City Terminal Ry. Co., 587 F.2d 908, 906 (8th Cir. 1978). “To merit judicial enforcement, an award must have a basis that is at least rationally inferable, if not obviously drawn, from the letter or purpose of the collective bargaining agreement.” Kansas City Terminal Ry. Co., 587 F.2d at 906, quoting Brotherhood of R.R. Trainmen v. Central of Ga. Ry. Co., 415 F.2d 403, 411-12 (5th Cir. 1969). “The test of the board’s jurisdiction is not whether [this court] agree[s] with the board’s interpretation of the agreement, but ‘whether the remedy fashioned by the Board is rationally explainable as a logical means of furthering the aims of that contract.’ ” International Ass’n of Machinists & Aerospace Workers, 858 F.2d at 430, quoting Kansas City Terminal Ry. Co., 587 F.2d at 906-07. “Stated another way, the award must draw its essence from the collective bargaining agreement.” Id. If it does, “a court is bound to enforce the award and is not entitled to review the merits of the contract dispute.” W.R. Grace & Co., 461 U.S. at 764, 103 S.Ct. 2177.

The CBA prohibited Endeavor from disciplining employees without just cause. The Board was tasked with determining whether Endeavor terminated Sullivan’s employment for just cause. This determination required interpreting the anti-harassment policy. The Board said:

[Sullivan] emphasizes that the Company’s anti-harassment policy prohibited only “unlawful harassment.” The implication is that his conduct did not on its own meet the judicial standard for Title VII cases. Although [Sullivan’s] brief did not cite the relevant case law, judicial interpretations of Title VII hold that an employer would be liable for an employee’s harassment only if the offensive conduct were “severe or pervasive” enough to interfere with an employee’s ability to perform her job.
The scope of an employer’s liability under Title VII has nothing to do with its right to discipline an employee for offensive conduct that, on its own, would not make the employer liable. Applying [Sullivan’s] interpretation of the Anti-Harassment policy as prohibiting only employee conduct that would make the employer legally liable would mean that an employee could not be disciplined for offensive and harassing conduct until it crossed some line and became “severe” or “pervasive.”
That is an unrealistic and cramped reading of the Company’s Anti-Harassment policy. We find that the use of the term “unlawful” in that policy refers to offensive and harassing conduct and words that would tend, if tolerated by the employer, [to] create legal problems and potential liability. The Company has the right to prohibit all such conduct; it has no obligation to let it continue.

Sullivan' disagrees with the Board’s determination that his conduct violated the anti-harassment policy, and, therefore, Endeavor had just cause to ter-mínate him. However, this court may not review the merits of the Board’s determination. See Gas Aggregation Servs., Inc. v. Howard Avista Energy, LLC., 319 F.3d 1060, 1064 (8th Cir. 2003). Because the determination is not contrary to the plain language of the CBA, this argument has no merit. See Bureau of Engraving, Inc. v. Graphic Commc’ns Int’l Union, Local 1B, 164 F.3d 427, 429 (8th Cir. 1999) (reversing an arbitration award where the award was “contrary to the plain language of the [CBA] ”).

V.

Sullivan argues the award further fails to draw its essence from the contract by allowing Endeavor to “ignore past practice [of progressive discipline] and bypass suspension,” moving directly to termination.

“The essence of the CBA is derived not only from its express provisions, but also from the industrial common law.” Id. “The industrial common law includes the past practices of the industry and the shop.” Id. Where a CBA’s contractual provisions are silent, courts must consider the parties’ intent, which may include past practices. Id.

Sullivan relies on Bureau of Engraving, Inc. v. Graphic Communications International Union, Local 1B, 164 F.3d 427, 429 (8th Cir. 1999). But here, the CBA is not silent on the issue of discipline. It states: “Discipline is defined as a written warning, suspension and discharge.” As the Board found, nothing in the CBA requires any progression through these disciplinary measures: “The Company might have chosen some other form of discipline like a suspension, but nothing in the [CBA] required it to do so.” Still, the Board found Endeavor progressively disciplined him:

On October 17, 2006, it issued [Sullivan] two Written Letters of Warning, the first step in the progressive discipline system.
About two weeks later, on November 29, 2006, the Company issued [Sullivan] a Final Written Letter of Warning, the next step in its progressive discipline procedure.

The Board concluded that Sullivan had notice that additional infractions may result in termination: “As of December 10, 2006, therefore, he had two Written Letters of Warning and one Final Written Letter of Warning. The last letter specifically warned that further infractions would result in discipline up to termination.”

The Board also considered whether termination was an appropriate punishment:

[Sullivan’s] brief suggested that termination was too severe a penalty. It might have been too severe if the events of December 10-11 stood alone. They do not. They were the culmination of a long series of behavioral problems that included repeated informal counselings, two letters of warning, and a final letter of warning.... In light of his overall performance record, we cannot find that termination for those events was unjust.
The Board properly applied the CBA.
⅜ ⅜ ⅜ ⅜ ⅜ ⅜ ⅜

The judgment is affirmed.

      . The Honorable Susan R. Nelson, United States District Judge for the District of Minnesota.

      . As the district court recognized, “there was a dispute between the parties about exactly when Endeavor decided to terminate Sullivan and which termination letter it sent him. The portion of the termination letters addressing Sullivan’s remarks to the flight attendant 'differ in potentially significant ways.' However, as discussed below, the [Board] ultimately found this discrepancy immaterial to deciding Sullivan’s grievance.’’

      . In December 2006, the anti-harassment policy stated that Endeavor does not and will not permit employees to engage in unlawful discriminatory practices, or harassment based on any factor prohibited by law: including sexual harassment. Specifically, unlawful harassment whether committed by supervisory or non-supervisory personnel, is prohibited as unlawful and against stated Company policy. Unlawful harassment involves ... (c) verbal or physical conduct of a sexual nature; ... (e) creating an intimidating, offensive or hostile working environment by such conduct.


text:
    Lisa JONES, Plaintiff-Appellant v. AETNA LIFE INSURANCE COMPANY; The Boeing Company Employee Health and Welfare Benefit Plan; Employee Benefit Plans Committee of The Boeing Company; The Boeing Company, Defendants-Appellees
    No. 16-1714
    United States Court of Appeals, Eighth Circuit.
    Submitted: December 13, 2016
    Filed: May 8, 2017
    Rehearing and Rehearing En Banc Denied July 17, 2017

      Counsel who presented argument on behalf of the appellant was David C. Knier-iem, of Saint Louis, MO.
    Counsel who presented argument on behalf of the appellee was Eric P. Mathisen, of Valparaiso, IN. The following attorney(s) appeared on the appellee brief; Kimberly Jones, of Chicago, IL.
    Before WOLLMAN, SMITH, and BENTON, Circuit Judges.

       Judge Loken and Judge Colloton would grant the petition for rehearing en banc. Judge Kelly did not participate in the consideration or decision of this matter.

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

   BENTON, Circuit Judge.

Lisa E. Jones submitted a claim for disability benefits. Her plan administrator denied it. She sued under the Employee Retirement Income Security Act (ERISA) for denial of benefits and breach of fiduciary duty. The district court dismissed the fiduciary claim as “duplicative” of the denial-of-benefits claim. It then granted summary judgment against Jones on the denial-of-benefits claim. Having jurisdiction under 28 U.S.C. § 1291, this court affirms in part, reverses in part, and remands.

I.

Jones worked for The Boeing Company as a business and planning analyst. She was covered by Boeing’s employee welfare benefit plan. The plan provided short-term (up-to-26-weeks) disability benefits funded by Boeing and administered by Aetna Life Insurance Company. It also provided long-term disability benefits funded and administered by Aetna.

On October 16, 2013, Jones stopped working and submitted a claim for short-term benefits. On October 21, rheumatologist Dr. Francisco J. Garriga submitted an “Attending Physician Statement” with a primary diagnosis of “ankylosing spondyli-tis” (inflammatory arthritis primarily affecting the spine), and a secondary diagnosis of “migraines.” Dr. Garriga first stated that Jones could not work through November 4. On October 23, Aetna approved her claim for short-term benefits effective October 24. Dr. Garriga then extended Jones’s unable-to-work dates many times. Aetna extended her benefits and required updates from Dr. Garriga. On January 30, 2014, Aetna made what would be its final extension—through February 17.

On February 26, Dr. Garriga extended Jones’s unable-to-work date to April 28. At Aetna’s request, he submitted a “Capabilities and Limitations” worksheet on March 17. It was mostly blank because “no formal testing has been done—would need PT appointment to accurately assess.” On April 11, chiropractor Dr. Brian Dent submitted a “Capabilities and Limitations” worksheet stating that Jones was limited to working two to four hours per day pending flare-ups.

On April 16, Aetna told Jones that her submitted information did not sufficiently document a level of impairment preventing her from working. Aetna requested more information. Aetna then sent Jones’s file to Dr. Kia Swan-Moore for review. Dr. Swan-Moore reviewed the medical records and spoke to Dr. Garriga, who said “there is no physical clinical reason [Jones] cannot work however [Jones] continues to tell him that the pain is so intense she could not concentrate.” Dr. Swan-Moore also tried, unsuccessfully, to contact Dr. Ma-hendra Gunapooti, a pain management specialist who Jones said had treated her. On April 24, Dr. Swan-Moore concluded, based on the medical records, Jones could work an eight-hour day for the period of February 17 through May 30 (with unlimited sitting, standing, and walking, and with some limits on pushing, pulling, and carrying). On April 28, Aetna essentially restated Dr. Swan-Moore’s conclusions and told Jones her benefits were terminated effective February 17. The same day, Dr. Gunapooti sent records to Aetna. Those records showed that Jones reported chronic pain, was on numerous medications (including painkillers), and received epidurals. In light of Dr. Gunapooti’s records, Dr. Swan-Moore reviewed her determination and tried to contact him (but was again unsuccessful). Dr. Swan-Moore reaffirmed her determination. Aetna reaffirmed its denial.

On July 8, Jones submitted to a functional capacity evaluation by physical therapist Kevin J. Wilhite. He said Jones “demonstrated lifting performance that would place her in the Sedentary Physical Demand Category,” but he was “ultimately Unable to Classify her ability of work over an 8 hour work day due to her inability to complete the aerobic capacity testing” (which he did not conduct “due to safety concerns of using a treadmill with her gait performance and use of the cane”). He said, based on her self-reported pain, he “would not expect her to tolerate any activity over 2 hours,” and noted that “Productive Sedentary work for an 8 hour work day would not be expected based on this date’s performance.” Wilhite did say that Jones “demonstrated inconsistent performance,” including “movement and muscle recruitment patterns that were inconsistent when aware and unaware of observation.” Aetna concluded that Wilhite’s report did not support a disability finding, especially due to Jones’s reported inconsistent performance.

On July 17, Jones appealed the denial of benefits. She submitted Wilhite’s report and a newer “Attending Physician Statement” from Dr. Garriga saying that her inability to work was “ongoing” and she “cannot remain standing for over 2 hrs.” Aetna sent Jones’s medical documentation to Dr. Daniel Gerstenblitt to see if Jones qualified as disabled between February 18 and April 16. Dr. Gerstenblitt tried to call Dr. Garriga seven times, leaving messages that were not returned. Dr. Gerstenblitt stated that Jones “appears to have chronic neck and back pain,” determined that her “functional capacity evaluation was an invalid study and self-limited,” and concluded that “there is absolutely no reason that she is incapable for performing in at least a sedentary position.” Aetna denied Jones’s appeal on October 8. On January 19, 2015, Jones asked Aetna to place in her file a letter from the Social Security Administration granting her disability benefits.

In February 2015, Jones sued Aetna, the “Boeing Employee Health and Welfare Plan,” and the “Employee Benefit Plans Committee, the Boeing Company.” Her amended complaint had two counts. Count I alleged that Aetna denied her short-and long-term disability benefits in violation of 29 U.S.C. § 1132(a)(1)(B). Count II alleged Aetna breached its fiduciary duty to her as a participant by (among other things) failing to obtain medical records, failing to tell her where to send evidence of disability, and using claims examiners with conflicts of interest, all in violation of § 1132(a)(3). The district court dismissed Count II as “duplicative” 'of Count I, and denied Jones’s motion for discovery on the fiduciary-duty claim. It then granted summary judgment to Aetna on Count I, determining Aetna did not abuse its discretion in denying Jones’s claim. It also granted Aet-na’s motion to strike documents Jones attached to her memorandum opposing summary judgment.

II.

Jones argues that the district court erred in dismissing Count II. This court reviews the district court’s dismissal de novo. Wilson v. Ark. Dep’t of Human Servs., 850 F.3d 368, 371 (8th Cir. 2017).

Two of ERISA’s theories of recovery are relevant here. First, under § 1132(a)(1)(B), a plan participant or beneficiary may sue “to recover benefits due to him under the terms of his plan.” Second, under § 1132(a)(3), a participant or beneficiary may sue “to obtain other appropriate equitable relief ... to enforce any provisions of this subchapter”—including provisions of the subchapter that impose liability on fiduciaries that breach their statutory duty to exercise a “prudent man standard of care.” See §§ 1104(a), 1109(a); Varity Corp. v. Howe, 516 U.S. 489, 507-15, 116 S.Ct. 1065, 134 L.Ed.2d 130 (1996).

A.

This court’s cases conflict about whether a participant or beneficiary bringing a § 1132(a)(1)(B) claim “to recover benefits due to him under the terms of his plan” may also bring a § 1132(a)(3) claim to obtain benefits (as “other appropriate equitable relief’ for a breach of fiduciary duty by a plan administrator).

In Conley v. Pitney Bowes, 176 F.3d 1044 (8th Cir. 1999), a beneficiary sued under (a)(1)(B) for benefits. He also sued under (a)(3) for breach of fiduciary duty. He “described the alleged fiduciary violations as failure to provide him with proper notice of his opportunity to appeal, failure to maintain a complete administrative record, and failure to conduct a full and impartial investigation of his condition.” Id. at 1047. He “sought equitable relief in the form of a restoration to him of past and future additional long-term disability benefits.” Id. The district court dismissed the (a)(3) claim. This court affirmed, explaining that “where a plaintiff is provided adequate relief by the right to bring a claim for benefits under § 1132(a)(1)(B), the plaintiff does not have a cause of action to seek the same remedy under § 1132(a)(3)(B).” Id. (internal quotation marks omitted). It held that the beneficiary “has a claim for benefits under § 1132(a)(1)(B) and therefore may not seek the same benefits in the form of equitable relief under § 1132(a)(3)(B).” Id.

More recently, in Silva v. Metropolitan Life Insurance Co., 762 F.3d 711 (8th Cir. 2014), a beneficiary sued under (a)(1)(B) for benefits from a valid insurance policy. He also sued under (a)(3), arguing that even if the policy was never validly approved (and thus never took effect), the employer and insurer still owed benefits because of fiduciary misconduct in failing to obtain approval. Id. at 727-28. Both counts sought the same relief—“payment of benefits that were seemingly owed under the Plan [in the amount of] $429,000.” See id. at 724, 728 n.12. The court refused to dismiss the (a)(3) claim, holding the beneficiary “is allowed to assert liability under the two subsections of 29 U.S.C. § 1132 at issue in this case.” Id. at 728.

Silva acknowledged that earlier Eighth Circuit cases suggest that a plan beneficiary cannot bring both (a)(1)(B) and (a)(3) claims. Id. at 726, citing Pilger v. Sweeney, 725 F.3d 922, 927 (8th Cir. 2013). The earlier cases rely on the Supreme Court’s 1996 Varity decision—specifically, its statement that “where Congress elsewhere provided adequate relief for a beneficiary’s injury, there will likely be no need for further equitable relief, in which case such relief normally would not be ‘appropriate.’” 516 U.S. at 515, 116 S.Ct. 1065. Silva determined that Varity and the earlier Eighth Circuit cases do not “stand for the proposition that [a beneficiary] may only plead one cause of action.” Silva, 762 F.3d at 726. Instead, Varity and the earlier Eighth Circuit cases more narrowly “prohibit duplicate recoveries when a more specific section of the statute, such as § 1132(a)(1)(B), provides a remedy similar to what the plaintiff seeks under the equitable catchall provision, § 1132(a)(3).” Silva, 762 F.3d at 726.

Silva buttressed its interpretation of Varity and the earlier Eighth Circuit cases with “further support” from CIGNA Corp. v. Amara, 563 U.S. 421, 131 S.Ct. 1866, 179 L.Ed.2d 843 (2011). Silva, 762 F.3d at 726. Amara reviewed an order for plan reformation under (a)(1)(B). The Court held that (a)(1)(B) does not authorize that type of relief, but a different statutory basis— (a)(3), which the district court had considered and rejected—does authorize that relief. Amara, 563 U.S. at 438, 442, 131 S.Ct. 1866. According to Silva, the Amara “Court addressed the issue in terms of available relief and did not say that plaintiffs would be barred from initially bringing a claim under the § 1132(a)(3) catchall provision simply because they had already brought a claim under the more specific portion of the statute, § 1132(a)(1)(B).” Silva, 762 F.3d at 727.

Silva acknowledged that “this interpretation of Varity may seem to be at odds with earlier Eighth Circuit cases,” but distinguished those earlier cases “based on the stage of litigation the court was reviewing.” Silva, 762 F.3d at 727. The earlier Eighth Circuit cases, Silva said, were all summary judgments, where “a court is better equipped to assess the likelihood for duplicate recovery, analyze the overlap between claims, and determine whether one claim alone will provide the plaintiff with ‘adequate relief.’ ” Id. Silva, on the other hand, was a motion-to-dismiss case, where “it is difficult for a court to discern the intricacies of the plaintiffs claims to determine if the claims are indeed duplicative, rather than alternative, and determine if one or both could provide adequate relief.” Id.

Silva’s attempt to distinguish previous cases based on the stage of litigation falters because Conley dismissed a § 1132(a)(3) claim on a motion to dismiss, not at summary judgment. Silva did not cite Conley. Neither Silva nor any other case from this court explicitly holds that Conley is no longer good law.

This court must resolve the intra-circuit conflict between Conley’s rule—an (a)(1)(B) claimant may not seek relief under (a)(3)—and Silva’s rule—an (a)(1)(B) claimant may seek relief under (a)(3). Generally, in the case of an intracircuit conflict, the earliest opinion controls. Mader v. United States, 654 F.3d 794, 800 (8th Cir. 2011) (en banc); T.L. ex rel. Ingram v. United States, 443 F.3d 956, 960 (8th Cir. 2006). However, “a panel may depart from circuit precedent based on an intervening opinion of the Supreme Court that undermines the prior precedent.” T.L. ex rel. Ingram, 443 F.3d at 960. The Silva panel’s departure from prior precedent followed the intervening Amara opinion that undermined the prior panels’ interpretations of Varity. Indeed, Amara implicitly determined that seeking relief under (a)(1)(B) does not preclude seeking relief under (a)(3). See Amara, 563 U.S. at 438, 131 S.Ct. 1866; Moyle v. Liberty Mut. Ret. Benefit Plan, 823 F.3d 948, 960-62 (9th Cir. 2016) (agreeing with Silva’s interpretation of Amara). Although Silva did not recognize Conley, it did properly depart from it based on Amara. Silva controls.

B.

Aetna tries to distinguish Silva by limiting it to its. facts, essentially arguing it applies only where the (a)(3) claim asserts that a plan was never validly approved. But Silva’s rule is broader than that: so long as two claims “assert different theories of liability,” plan beneficiaries “may plead both.” Silva, 762 F.3d at 728 & n.12.

Here, Jones asserts different theories of liability. Like Silva, the two counts seek functionally identical relief—“an amount in excess of one million dollars,” the benefits Jones says Aetna denied her. But despite the similarity of the relief, Counts I and II allege distinct theories of liability. Count I asserts that Aetna denied her benefits due under the plan. Count II asserts that Aet-na, among other things, used claims examiners with conflicts of interest and denied short-term benefits solely to disqualify long-term claims. Count II’s theory of liability is that Aetna used a claims-handling process that breached its fiduciary duties, not that Aetna denied her benefits due. True, Jones argues that this process caused her to be denied benefits she was due. But Aetna’s alleged liability under (a)(3) flows from the process, not the denial of benefits itself. A plan administrator is not liable under (a)(1)(B) for administering a claims process contrary to its fiduciary obligation to carry out its duties solely for participants and, beneficiaries. Even if an administrator made a decision with procedural irregularities that “serious[ly] breach” its duties to its beneficiary, it is not necessarily liable under (a)(1)(B); instead, the serious breach prompts more searching review of the denial-of-benefits claim. See Ingram v. Terminal R.R. Ass’n of St. Louis Pension Plan for Nonschedule Emps., 812 F.3d 628, 631 (8th Cir. 2016); Waldoch v. Medtronic, Inc., 757 F.3d 822, 830 (8th Cir. 2014) (explaining that a “serious breach of the plan trustee’s fiduciary duty to the plan beneficiary” will either “alter the standard of review or affect our review under the abuse-of-discretion standard”).

Despite Aetna’s attempts to characterize the two claims as duplicative because both allege “improper claims processing,” the two claims assert different theories of liability. The district court erred in dismissing Jones’s Count II (a)(3) claim on that basis. Its dismissal of Count II is reversed.

III.

Jones contends that the district court erred in granting summary judgment on her Count I (a)(1)(B) denial-of-benefits claim. According to her, she is entitled to both short-term and long-term disability benefits under the plan. The parties agree that the Summary Plan Description gives Aetna discretionary authority to interpret the plan. “When a plan grants an administrator this type of discretion, the district court reviews the administrator’s construction of the plan terms for an abuse of discretion.” Silva, 762 F.3d at 717 (internal quotation mark omitted). Under abuse-of-discretion review, “[a]n administrator’s decision is upheld if it is reasonable, that is, supported by substantial evidence”—meaning “more than a scintilla but less than a preponderance.” Id. See also King v. Hartford Life & Accident Ins. Co., 414 F.3d 994, 998-1000 (8th Cir. 2005) (en banc); Tillery v. Hoffman Enclosures, Inc., 280 F.3d 1192, 1199 (8th Cir. 2002). If an administrator also funds the benefits it administers—like Aetna does for Jones’s long-term benefits—the district court “should consider that conflict as a factor” in determining whether the administrator abused its discretion. Silva, 762 F.3d at 718. See also Whitley v. Standard Ins. Co., 815 F.3d 1134, 1140 (8th Cir. 2016). This court reviews de novo the grant of summary judgment, viewing the evidence most favorably to Jones. Silva, 762 F.3d at 718.

A.

In her “Statement of the Issues,” Jones frames her challenge to the district court’s summary judgment grant narrowly: “Whether the trial court erred in granting summary judgment because the trial court failed to consider the administrative record in that Aetna’s own doctor found Jones had a functional impairment in evaluating her disability.” Taking the issue as defined by Jones, she does not show that Aetna’s decision was unreasonable. Yes, Aetna’s reviewing doctor, Dr. Swan-Moore, found that “functional impairment is supported” for February 17 through May 20, 2014. But the functional impairment found by Dr. Swan-Moore was limited: “Based on an 8 hour day; sitting, standing, and walking would be unlimited. She could push, pull, and carry no more than 10 pounds at any time. There are no restrictions to emotional control, focus or concentration as well as cognition.” By the “disabled” definition in the Summary Plan Description, you are not disabled due to a “functional impairment”; rather, you are disabled if an illness “prevents you from performing the material duties of your own occupation or other appropriate work the Company makes available.” Dr. Swan-Moore’s determination that Jones had some functional impairment does not render Aetna’s no-disability determination unreasonable.

B.

Jones makes other arguments, none of which shows that Aetna’s denial of benefits was unreasonable. First, she asserts that Dr. Swan-Moore never considered she suffered from migraines. Jones is incorrect. Dr. Swan-Moore’s review noted twice that Dr. Garriga diagnosed her as suffering from migraines. Dr. Swan-Moore also discussed Jones’s condition with Dr. Garriga, who said “there is no physical clinical reason [Jones] cannot work.” Aetna reasonably relied on Dr. Swan-Moore’s review, which “accurately represented] [Jones’s] medical record and adequately address[ed] the evidence supporting her claim for disability.” Midgett v. Washington Grp. Int’l Long Term Disability Plan, 561 F.3d 887, 898 (8th Cir. 2009). Second, she argues that Aetna’s Summary Plan Description (which the district court used to determine her benefits) has two flaws: (1) it was not authenticated, and (2) there is no way to know whether the underlying plan contradicts the Summary Plan Description. The first premise fails because the plan was authenticated by affidavit. Her second premise fails because courts frequently look to summary plan descriptions in determining benefits. See generally Jobe v. Med. Life Ins. Co., 598 F.3d 478, 481-86 (8th Cir. 2010). It is true that since the summary plan description states that the plan governs in cases of a conflict between the summary and the plan, the plan governs if there is a conflict. See id. at 485-86. But the underlying plan matters only if there is a conflict. Jones presents no evidence of a conflict and does not argue that she requested discovery of the underlying plan. Third, she contends—without citing any evidence—that Aetna denied her short-term benefits in order to avoid having to later pay long-term benefits. Even considering this potential conflict in determining whether Aetna abused its discretion, Jones has not shown that Aetna’s determination was unreasonable.

C.

Jones contends that the district court erred in striking evidence she submitted to oppose summary judgment. “Determinations as to the admissibility of evidence he within the sound discretion of the district court, and we review those determinations under an abuse of discretion standard, even at summary judgment.” Brunsting v. Lutsen Mountains Carp., 601 F.3d 813, 818 (8th Cir. 2010). Jones submitted a “Supplemental Administrative Record,” which included a letter from the Social Security Administration granting disability benefits, a letter from Jones to Aetna asking for inclusion of the SSA letter in the administrative record, and a letter from Aetna acknowledging receipt. Jones sent the letter to Aetna on January 19, 2015—-over three months after Aetna denied her appeal.

When applying abuse-of-discretion review, a court reviewing a denial of benefits should not consider information that was not before the plan administrator: “Review of a plan administrator’s discretionary decision must be limited to the administrative record.... ” Ingram, 812 F.3d at 634. Since the “Supplemental Administrative Record” materials were not before the plan administrator when it made its discretionary determination, the district court correctly struck those materials.

D.

In her reply brief, Jones makes additional arguments for reversal of summary judgment. This court generally does not consider arguments raised for the first time in a reply brief, although it may if the new arguments supplement those raised in an initial brief. Barham v. Reliance Standard Life Ins. Co., 441 F.3d 581, 584 (8th Cir. 2006). These arguments assert errors not raised in the initial brief. Jones offers no reason for not raising them sooner. This court declines to consider the new arguments. The district court’s grant of summary judgment on Count I is affirmed.

⅜ ⅜: ⅜{ ⅜ ⅜ ⅜ ⅜

The judgment of the district court is affirmed in part, reversed in part, and the case remanded for proceedings consistent with this opinion.

      . ERISA defines fiduciaries to include any person exercising “discretionary authority or discretionary control respecting management of [a] plan” and any person with “discretionary authority or discretionary responsibility in the administration of [a] plan.” 29 U.S.C. § 1002(21) (A).

      . Before the district court, Jones moved for discovery to support her Count II claim. The district court denied that motion "in light of its dismissal of Count II.” Since this court reverses the basis for the denial, on remand the district court should reconsider the discovery motion.


author: LOKEN, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee v. Kevin Allen DALASTA, Defendant-Appellant
    No. 16-1818
    United States Court of Appeals, Eighth Circuit.
    Submitted: January 13, 2017
    Filed: May 8, 2017

      Counsel who presented argument on behalf of the appellant was Alfredo G. Parrish, of Des Moines, IA. The following attorney(s) appeared on the appellant brief; Andrew J Dunn, of Des Moines, IA.
    Counsel who presented argument on behalf of the appellee was Clifford D. Wen-del, AUSA, of Des Moines, IA.
    Before LOKEN, BEAM, and BENTON, Circuit Judges.
   LOKEN, Circuit Judge.

Kevin Dalasta, who suffers from depression, anxiety, and medically intractable epilepsy, became upset and held a gun to his chin following an argument with his father. Police officers were called to the parents’ residence in Polk County, Iowa, and removed four firearms. Dalasta was indicted for being a prohibited person in possession of the firearms in violation of 18 U.S.C. §§ 922(g)(4) and 924(a)(2). He was released into his father’s custody.

The government moved for a hearing to determine Dalasta’s competency to stand trial. See 18 U.S.C. § 4241(a). Dr. Eric Barlow conducted an outpatient evaluation and reported that “it would not be possible to restore Kevin to a level of competency to stand trial.” See § 4241(b). After hearings in December 2015 and March 2016, see § 4241(c), the district court found by a preponderance of the evidence that Dalasta was not competent to stand trial. Pursuant to § 4241(d), the court committed him to the custody of the United States Bureau of Prisons (“BOP”) to determine whether his competency could be restored. Dalasta appeals the commitment order, arguing (i) the district court erred in construing § 4241(d) as requiring commitment when uncontested facts establish that treatment cannot restore his competency to stand trial; (ii) a strict interpretation of § 4241(d) is unconstitutional as applied to him; and (iii) the district court erred in neglecting alternate means of accomplishing the statute’s purpose. We have jurisdiction to review this interlocutory order under the collateral order doctrine. See United States v. Henriques, 698 F.3d 673, 673 (8th Cir. 2012), cert. denied, — U.S. -, 133 S.Ct. 1513, 185 L.Ed.2d 564 (2013). Reviewing issues of law de novo, we affirm.

I.

Dalasta underwent a temporal lobecto-my to remedy worsening seizures in March 2012. At the time, he was facing a charge of vehicular homicide in Polk County District Court. Based on an evaluation by psychiatrist Michael Taylor, the state court suspended the proceedings indefinitely, see Iowa Code § 812.5(2), and granted the State’s request for additional medical examination to determine if Dalas-ta could be restored to competency. In July 2012, Dr. Taylor reported to the state court: “Mr. Dalasta is Not Competent to stand trial, and most-likely never will be.” Dr. Barlow reported in August 2012: “I am providing Mr. Dalasta with ... biological treatment for his PTSD and depression/anxiety. ... It is impossible for Mr. Dalasta to be restored to competency, as his cognitive problems ... are the result of the removal of the [left temporal lobe] of his brain. These are not reversible changes.” Dr. Robert Jones opined in March 2013 that Dalasta would never regain competency to stand trial. After a hearing, the state court found in May 2013 there was .no substantial probability that Dalasta’s competency could be restored in a reasonable amount of time and dismissed the state court prosecution without prejudice.

In his initial report to the district court in this case, Dr. Barlow stated: “My report on [Dalasta’s] status is essentially the same as it was in August 2012 when I felt clearly, and still do, that it would not be possible to restore Kevin to a level of competency to understand the nature and consequences of the proceedings against him or to even begin to assist himself in his own defense.” Dr. Barlow concluded that these problems “are never going to change.” The district court recognized at the December 2015 hearing that it could find by clear and convincing evidence that Dalasta cannot be restored to competency because part of his brain is “simply missing. That’s not going to change, based on our evaluation.” The court requested briefing to determine whether § 4241(d) required that Dalasta be committed to the Attorney General’s custody, or permitted the court other options.

At the March 2016 hearing, defense counsel argued against mandatory commitment, relying on years of medical records, the state court’s prior ruling, and a recent report from Dr. Barlow stating: “To transfer Kevin to the Bureau of Prisons is a waste of resources [and] will not provide any new meaningful information to this case. Kevin has had literally brain surgery in the form of a temporal lobectomy to eliminate his seizure disorder. This has resulted in cognitive and memory deficits that will not improve with time.” A questionnaire asked whether there is “any length of inpatient treatment that can be provided to Kevin to allow him to gain a level of competency that would permit him to proceed with his federal case.” Dr. Barlow replied, “absolutely not.” Counsel argued that commitment to the BOP would be potentially harmful, removing Dalasta from his family, who administer his medication “like clockwork,” to a BOP facility where he may receive generic drugs.

Defense counsel urged the court to proceed immediately to a dangerousness hearing under 18 U.S.C. § 4246(d), which determines whether a defendant whose competence to stand trial cannot be restored “is presently suffering from a mental disease or defect as a result of which his release would create a substantial risk of bodily injury to another person or serious damage to property of another.” The government argued that the plain language of § 4241(d) and governing Eighth Circuit precedent mandated that Dalasta first be committed to the custody of the Attorney General to complete an assessment of whether he could regain the competence to stand trial, and if not, an initial evaluation of the § 4246 dangerousness determination.

The district court noted the unique fact that “[t]here’s no fix” to the missing part of Dalasta’s brain. Nonetheless, the court concluded, § 4241(d) mandates commitment of a defendant found incompetent to the custody of the Attorney General: “[T]he statute says ‘shall’ ... [a]nd the cases follow that same analysis.” The court stated that “the next stage we’re going to reach pretty clearly is the dangerousness assessment [under § 4246], and [the BOP] may be able to help us in that assessment with their observations of him.” Because Dalasta must rely on his elderly parents as care-givers, the court noted that a BOP assessment would be useful in determining “how he will do in a structured environment whe[n] his parents aren’t an option and whether or not that has to be in a custodial situation or whether he might do well in a residential facility of some kind.... The BOP are experts at that kind of analysis.” Consistent with § 4241(d), the court entered a sealed Order committing Dalasta to the BOP for no longer than four months to complete the restoration-of-competency assessment. The court permitted him to self-report to the designated BOP facility, requested that the BOP expedite its competency evaluation, and stayed its Order pending this appeal.

II.

A. On appeal, Dalasta argues the district court erred in interpreting § 4241(d), because requiring commitment to BOP custody when there is “no probability that Dalasta will attain the capacity to permit the trial to proceed” is “completely futile” and produces an absurd result that is contrary to the purpose of the statute. As relevant here, § 4241(d) provides, with emphasis added:

(d) Determination and disposition.— If, after the hearing, the court finds by a preponderance of the evidence that the defendant is presently suffering from a mental disease or defect rendering him mentally incompetent to the extent that he is unable to understand the nature and consequences of the proceedings against him or to assist properly in this defense, the court shall commit the defendant to the custody of the Attorney General. The Attorney General shall hospitalize the defendant for treatment in a suitable facility ... for such a reasonable period of time, not to exceed four months, as is necessary to determine whether there is a substantial probability that in the foreseeable future he will attain the capacity to permit the proceedings to go forward....
If, at the end of the time period specified, it is determined that the defendant’s mental condition has not so improved as to permit the proceedings to go forward, the defendant is subject to the provisions of sections 4246 and 4248.

In United States v. Shawar, 865 F.2d 856, 860 (7th Cir. 1989), the Seventh Circuit concluded: “The plain meaning of this phrase [shall commit] is, and we hold it to be, that once a defendant is found incompetent to stand trial, a district judge has no discretion in whether or not to commit him.” In three cases, this court has agreed that § 4241(d) imposes a mandatory duty to commit a defendant who is found incompetent to the custody of the Attorney General, even if there is undisputed medical evidence that the defendant cannot be restored to competency. See Henriques, 698 F.3d at 675; United States v. Millard-Grasshorn, 603 F.3d 492, 494 (8th Cir.), cert. denied, 562 U.S. 938, 131 S.Ct. 348, 178 L.Ed.2d 225 (2010); United States v. Ferro, 321 F.3d 756, 761 (8th Cir.), cert. denied, 540 U.S. 878, 124 S.Ct. 296, 157 L.Ed.2d 142 (2003); accord United States v. Magassouba, 544 F.3d 387, 404-05 (2d Cir. 2008) (collecting cases). The statute’s legislative history confirms its plain meaning: “If the court makes a finding of incompetency, it must then commit the defendant to the custody of the Attorney General.” S. Rep. No. 98-225, at 236 (1983). Dalasta suggests that our prior cases construing “shall” as mandatory are “antiquated,” but of course they are nonetheless binding on our panel.

Though we are bound in any event to follow the statute’s plain meaning and our prior decisions, we do not agree that commitment to the custody of the Attorney General is absurd if it is apparent the defendant’s competency to stand trial cannot be restored. First, in most cases, whether treatment authorized by § 4241(d) will improve the defendant’s mental condition sufficiently to permit the criminal proceedings to go forward is an uncertain issue Congress committed initially to medical professionals, before the court finally decides whether trial must be postponed indefinitely. See Ferro, 321 F.3d at 762 and cases cited. Second, even when the medical evidence suggests no chance that competency can be restored, as in this ease, commitment under § 4241(d) provides the Attorney General’s medical experts an opportunity to evaluate the defendant’s dangerousness if he were released from custody after a § 4246(a) hearing. Indeed, before a § 4246(a) hearing, the statute permits the district court to commit the defendant to the Attorney General’s custody for a psychiatric or psychological examination. See 18 U.S.C. §§ 4246(b), 4247(b). Here, as the district court noted, Dalasta’s firearms offense and need for constant care by aging parents strongly indicated that the assistance of BOP experts would be needed in the § 4246 analysis. See Shawar, 865 F.2d at 861-62; Ferro, 321 F.3d at 762.

B. Dalasta further argues that “forcing [his] commitment to the BOP, far from home, for invasive evaluations, for up to four months, when physicians say it would be detrimental to his health (and completely futile)” violates his liberty interest under the Due Process Clause. We disagree. “[Commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection.” Revels v. Sanders, 519 F.3d 734, 740 (8th Cir. 2008) (quotation omitted). However, Congress “has authority under its police power to protect the community from the dangerous tendencies of some who are mentally ill.” Addington v. Texas, 441 U.S. 418, 426, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979). In 18 U.S.C. § 4241, Congress crafted a three-step process for determining a defendant’s competency to stand trial. See United States v. Deters, 143 F.3d 577, 579-80 (10th Cir. 1998). In completing the first step, the district court may commit the defendant for a mental health examination. Only after the court has found the defendant to be incompetent to stand trial at step two, does § 4241(d) mandate a limited commitment to the Attorney General prior to a final determination at step three, either that the criminal trial may proceed, or that the incompetent defendant must be found dangerous or be released. The limited commitment mandated by § 4241(d) complies with due process limitations outlined in Jackson v. Indiana, 406 U.S. 715, 738, 92 S.Ct. 1845, 32 L.Ed.2d 435 (1972); see Ferro, 321 F.3d at 762; United States v. Filippi, 211 F.3d 649, 651-52 (1st Cir. 2000).

C. Finally, Dalasta argues that, even if § 4241(d) mandated his commitment, the district court erred in not ordering a noncustodial alternative, such as sending his medical records to be reviewed by a medical examiner of the Attorney General’s choosing, relying on a local expert to conduct the analysis the BOP would perform at its facilities, or ordering an examination by BOP at a suitable facility located in the Des Moines area. This is a discretionary decision Congress has delegated to the Attorney General, not to the district court.

Section 4241(d) provides that the Attorney General “shall hospitalize the defendant for treatment in a suitable facility.” Thus, the first alternative suggested by Dalasta, review of medical records, is foreclosed by the statute. However, Congress has granted the Attorney General discretion in choosing a “suitable facility” for the hospitalization of “a person committed to his custody pursuant to this chapter.” 18 U.S.C. §§ 4247(a)(2), 4247®; see S. Rep. No. 98-225, at 236.

At oral argument, we expressed concern that the district court’s Order committed Dalasta to the custody of the BOP, not the Attorney General, as § 4241(d) mandates. The district court record includes a copy of the BOP’s December 2004 Guidelines for Forensic Evaluations, which includes the statement, “§ 4241(d) is an inpatient evaluation, and must be done in a BOP Psychiatric Referral Center with an inpatient unit.” If that statement reflects an inflexible BOP policy, the BOP may be unduly restricting the Attorney General’s statutory discretion to choose a “suitable facility” if circumstances in an unusual case warranted, for example, hospitalization in a local facility accessible to BOP medical experts and less harmful to the defendant.

Dalasta did not raise this issue in the district court. The Attorney General’s regulations expressly authorize the Director of BOP to perform “the functions of the Attorney General under the provisions of ... 18 U.S.C. 4241-4247,” 28 C.F.R. § 0.96(j), and prior cases have committed defendants directly to the custody of BOP as the Attorney General’s authorized des-ignee. See, e.g., Magassouba, 544 F.3d at 395. Thus, the district court’s form of order was not plain error. But consistent with the district court’s Order requesting the BOP to expedite its “testing and evaluations” of Dalasta, and without addressing whether this exercise of the Attorney General’s discretion would be subject to judicial review in another case, we encourage the BOP not to inflexibly restrict its exercise of discretion in carrying out the Attorney General’s § 4241(d) mandate.

The district court’s Order Filed Under Seal dated March 28, 2016 is affirmed.

      . The Honorable Stephanie M. Rose, United States District Judge for the Southern District of Iowa.


text:
    UNITED STATES of America, Plaintiff-Appellee v. Nathan Leland MINARD, Defendant-Appellant
    No. 16-2574
    United States Court of Appeals, Eighth Circuit.
    Submitted: April 3, 2017
    Filed: May 8, 2017

      Counsel who represented the appellant was Sean Patrick Spellman of West Des Moines, IA.
    Counsel who represented the appellee was John E. Beamer, AUSA, of Des Moines, IA.
    Before WOLLMAN, LOKÉN, and RILEY, Circuit Judges.
   LOKEN, Circuit Judge.

A Knoxville, Iowa citizen reported an encounter with a suspicious person who knocked on his door, then struck a vehicle while driving away. A dispatched Marion County Deputy located and approached the reported vehicle parked on a dead-end road. The vehicle’s armed driver was Nathan Minard, and the vehicle was full of firearms and other items taken in recent local burglaries. Minard was charged and pleaded guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). The Presentence Investigation Report calculated an advisory guidelines range of 120 to 150 months in prison; the statutory maximum sentence was 10 years.

At sentencing, Ryan McCarthy, one of Minard’s burglary victims, addressed the court, explaining the impact the burglary of their residence had on McCarthy, his wife, and their two young children. “My wife, you know, she’ll hear something after I’ve left for work in the morning, you know, she’s never going to get by what’s happened to us because of his irresponsible actions.” When McCarthy completed his statement, the district court stated: “I understand exactly what you’re saying. It happened to me, too, when my kids were little, so I know exactly what you’re talking about.” The prosecutor then stated the government’s sentencing position, asking the court to impose the statutory maximum of 120 months, based on Minard’s extensive criminal history and the events leading to his arrest in a vehicle full of stolen items and firearms. The district court discussed in detail its consideration of the 18 U.S.C. § 3553(a) sentencing factors and imposed a 120-month sentence.

Minard filed a timely motion under Rule 35 of the Federal Rules of Criminal Procedure, alleging that the district court’s statement to the crime victim at sentencing “might have caused the Court to lack impartiality resulting in a harsher sentence,” and seeking “re-sentencing to occur before a different Judicial Officer.” The district court denied the motion without a hearing, explaining that its statement to the victim “had nothing to do with the sentence imposed.... [It was] an expression of empathy, nothing more.” Minard appeals, arguing the district court erred in denying his Rule 35 motion because the statement reflected a bias or partiality which required the judge to recuse, sua sponte, pursuant to 28 U.S.C. § 455(a). We conclude this contention is without merit for multiple reasons and therefore affirm.

First, as Minard did not object or move for recusal at sentencing, the issue was not timely raised and our review is for plain error. See, e.g., United States v. Burnette, 518 F.3d 942, 945 (8th Cir. 2008). Rule 35 provides, “Within 14 days after sentencing, the court may correct a sentence that resulted from arithmetical, technical, or other clear error.” Minard cites no case, and we have found none, in which Rule 35 relief was granted because the sentencing judge failed to recuse sua sponte. Minard seeks to bring his motion within the purview of Rule 35 by arguing the district court committed “clear error.” But clear error is not plain error.

Second, “a judge is presumed to be impartial and the party seeking disqualification bears the substantial burden of proving otherwise.” United States v. Ali, 799 F.3d 1008, 1017 (8th Cir. 2015) (quotation omitted). Opinions based on facts or events occurring in a judicial proceeding “do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible.” Liteky v. United States, 510 U.S. 540, 555, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994). Here, the district court’s spontaneous expression of empathy for a crime victim’s impact statement reflected no deep-seated antagonism, and its statement of reasons for imposing a 120-month sentence reflected thorough and proper consideration of the statutory sentencing factors.

Finally, Congress has given crime victims the statutory rights “to be reasonably heard at any public proceeding in the district court involving ... sentencing,” and “to be treated with fairness and with respect for the victim’s dignity and privacy.” 18 U.S.C. § 3771(a)(4) and (8). Rather than reflect bias or antagonism to Minard, the district court’s single statement—directed to the crime victim at the end of the victim’s stressful appearance—furthered the congressional policy of encouraging crime victim participation in the criminal justice process.

The judgment of the district court is affirmed.

      . The Honorable John A. Jarvey, Chief Judge of the United States District Court for the Southern District of Iowa.


text:
    DNA PRO VENTURES, INC. EMPLOYEE STOCK OWNERSHIP PLAN, Petitioner-Appellant v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee
    No. 16-1168
    United States Court of Appeals, Eighth Circuit.
    Submitted: December 12, 2016
    Filed: May 9, 2017

      Counsel who represented the petitioner was Valerie Ann Cramer of Des Moines, IA.
    Counsel who represented the appellee was Joan I. Oppenheimer, of Washington, DC., Randolph Lyons Hutter of Washington, DC.
    Before LOKEN, MURPHY, and KELLY, Circuit Judges.
   LOKEN, Circuit Judge.

Dr. Daniel Prohaska and his wife formed DNA Pro Ventures, Inc. (“DNA”), and established the DNA Pro Ventures, Inc. Employee Stock Ownership Plan (“ESOP”) in November 2008. After an investigation, the Internal Revenue Service (“IRS”) issued a Notice of Deficiency to the ESOP’s Trust based on a final determination that the Trust was not part of a qualified pension, profit-sharing, or stock bonus plan under 26 U.S.C. (“I.R.C.”) § 401, and therefore the Trust’s income was not exempt from taxation under I.R.C. § 501(a) in calendar years 2008-2011. The ESOP petitioned the United States Tax Court for a declaratory judgment that the ESOP was qualified under § 401(a) during the 2008-2010 tax years, and therefore the Trust was tax exempt under § 501(a). See I.R.C. § 7476(a)(1). Ruling without a trial on a stipulated fact record, see Tax Court Rule. 122, the Tax Court sustained the IRS determination. The ESOP appeals. Reviewing the Tax Court’s legal conclusions de novo and factual findings for clear error, we affirm. See Transp. Labor Contract/Leasing, Inc. v. Comm’r, 461 F.3d 1030, 1032 (8th Cir. 2006) (standard of review); I.R.C. § 7482(a)(1).

A. An employee stock ownership plan is a retirement plan that “invests primarily in qualifying employer securities, typically stock of the employer creating the plan.” Martin v. Feilen, 965 F.2d 660, 664 (8th Cir. 1992) (quotations omitted). A trust associated. with a qualified plan is exempt from taxation, I.R.C. § 501(a), and plan participants are not taxed on contributions until plan benefits are distributed, I.R.C. § 402(a). For a trust to qualify for the § 501(a) exemption, the plan must meet the requirements in I.R.C. § 401(a). A plan may be disqualified for operational failures, which occur if a plan fails to operate in accordance with § 401(a) statutory requirements, see Martin Fireproofing Profit Sharing Plan & Tr. v. Comm’r, 92 T.C. 1178, 1179-80 (1989), or fails to follow the terms of the plan document, see Michael C. Hollen, D.D.S., P.C. v. Comm’r, T.C. Memo 2011-2, 2011 WL 13637, at *4, aff'd per curiam, 437 Fed.Appx. 525 (8th Cir. 2011).

One statutory requirement is that an ESOP trust does not qualify for tax-exempt status if the ESOP makes annual contributions for a plan participant in excess of the lesser of either a specific dollar amount or the participant’s annual compensation. I.R.C. §§ 401(a)(16), 415(c); see Van Roekel Farms, Inc. v. Comm’r, T.C. Memo. 2000-171, 2000 WL 669975, at *3, aff'd per curiam, 12 Fed.Appx. 439 (8th Cir. 2001). If an employer transfers property other than cash for less than the property’s fair market value, this constitutes an annual contribution in the amount of the property’s fair market value. See Treas. Reg. § 1.415(c)-l(b)(5).

B. Dr. Prohaska is an orthopaedic surgeon. During the 2008-2010 tax years, he was employed by Advanced Orthopaedics, P.A., and deferred the maximum income allowable to its 401(k) retirement plan. When DNA was formed as a separate corporation in 2008, it created the ESOP and a trust fund for the benefit of its employees. On the day of incorporation, DNA issued fifty shares of Class A common stock, with a par value of $10 per share, to Dr. Prohaska and fifty shares to his wife, in exchange for $500 contributions. DNA as employer was administrator and sponsor of the ESOP. The Plan directed the Plan Trustee to determine the fair market value of the Trust Fund assets on .each Valuation Date. Dr. Prohaska was the Plan Trustee.

In September 2011, the IRS informed DNA and Dr. Prohaska that it would examine whether the ESOP had adhered to qualification requirements for tax-exempt status beginning in 2008. The IRS requested documents including the ESOP’s participant allocation schedules, employee census reports, and participant account statements. DNA never provided these documents. On November 13, 2012, the IRS notified DNA by certified mail that the ESOP did not meet three § 401(a) requirements and advised DNA of its right to appeal the proposed disqualification. The IRS attached an Explanation of Items that explained the three issues in detail, which an IRS agent sent to Dr. Prohaska on December 31, 2012.

The IRS issued a final non-qualification letter on June 6, 2014, explaining that the ESOP was disqualified (i) for two failures to comply with the terms of its plan document, and (ii) for failure to comply with I.R.C. § 415 by making contributions to Dr. and Mrs. Prohaska in 2008 that substantially exceeded their compensation.

C. Deciding the case on a stipulated record that included the IRS Explanation of Items, the Tax Court concluded that the IRS did not abuse its discretion in disqualifying the ESOP because (1) it exceeded the I.R.C. § 415 contribution limit by allocating class B shares to Dr. Prohas-ka’s ESOP account in 2008, a year when he received no compensation from DNA; and (2) violated its plan document by failing to have the value of DNA stock annually appraised in 2008 and later years. Either ground is a sufficient basis to uphold the Commissioner’s decision to disqualify the ESOP, which denies the Trust tax-exempt status. Although the ESOP challenges both grounds on appeal, we will limit our review to the violation of the I.R.C. § 415 contribution limitation in 2008. “As the party challenging the Commissioner’s determination, the taxpayer ha[s] the burden of proof.” Howard E. Clendenen, Inc. v. Comm’r, 207 F.3d 1071, 1073 (8th Cir. 2000).

D. In upholding the ESOP’s disqualification for exceeding the I.R.C. § 415 contribution limit, the Tax Court found that DNA issued 1,150 shares,of its class B common stock to the Trust and the shares were allocated to Dr. Prohaska’s ESOP account in 2008. The shares had a par value of $10 per share, so the allocation of this stock to his ESOP account was an employer contribution. As Dr. Prohaska received no compensation as an officer or employee of DNA that year, the limit on Dr. Prohaska’s “annual addition” was exceeded in 2008. See I.R.C. § 415(c)(1), (2); Treas. Reg. § 1.415(c)-l(b)(5).

On appeal, the ESOP argues the Tax Court erred in upholding disqualification for a violation of the § 415 contribution limit because “the Court got the facts wrong.” The ESOP explains that it purchased the shares from DNA on the day of its incorporation with a loan. Nothing in the record shows a contribution by Dr. Prohaska to the ESOP or an allocation to his ESOP account in the Trust in 2008. In fact, the ESOP repaid the loan and allocated the shares to Dr. Prohaska in 2009. In support of these assertions, the ESOP cites documents included in its Appendix that were not part of the parties’ stipulated administrative record in the Tax Court. Therefore, these documents are not part of the record we may consider on appeal to this court. See Anuforo v. Comm’r, 614 F.3d 799, 807 (8th Cir. 2010).

The ESOP cites nothing in the stipulated Tax Court record supporting its contention that the ESOP acquired the class-B shares it contributed to the Trust with a loan, and that the contribution was not allocated to Dr. Prohaska’s ESOP account in 2008. To the contrary, the stipulated record includes the IRS November 2012 Explanation of Items, which as to this issue stated:

Stock certificate B-l shows 1,150 shares of Class B common stock were issued to the ESOP on December 31, 2008. The books of the DNA reflect that the shares were valued at $10.00 per share. The total value of DNA stock is reported to be $11,500. Daniel Prohaska was the sole employee of DNA in 2008 but received no compensation in 2008. All 1,150 shares of stock were allocated to his account in 2008. His IRC section 415 annual additions in 2008 are equal to $11,500. His IRC section 415 limit in 2008 is $0.

The ESOP is not a leveraged ESOP as there was no exempt loan issued.

The ESOP filed its petition to the Tax Court in September 2014, and the Tax Court issued its decisión on a stipulated record in October 2015. At no time did the ESOP submit evidence to the Tax Court refuting the above-quoted facts in the Explanation of Items. Nor did the ESOP seek to have those facts determined in the Tax Court by an evidentiary hearing or trial. The ESOP was the party in control of the relevant documents, and it had failed to submit those documents in response to the IRS’s request at the start of its investigation. In these circumstances, the Tax Court did not clearly err in basing its findings of fact on the IRS’s uncontested Explanation of Items. Those facts established that DNA’s 2008 contribution to Dr. Prohaska’s ESOP account substantially exceeded the § 415 contribution limit for that year. Thus, the ESOP was not a § 401(a) qualified plan. See I.R.C. § 401(a)(16).

“[W]hen a plan is disqualified under section 415, the disqualification continues until remedial action is taken.” Clendenen v. Comm’r, T.C. Memo 2003-32, 2003 WL 299032, at *4, aff'd, 345 F.3d 568 (8th Cir. 2003); see Martin Fireproofing, 92 T.C. at 1184-89. Here, there is no evidence DNA or the ESOP took corrective action. Cf. Hull v. I.R.S., 656 F.3d 1174, 1184 (10th Cir. 2011). Accordingly, the Commissioner did not abuse his discretion in disqualifying the ESOP for 2008 and the subsequent plan years in question.

The decision of the Tax Court is affirmed.


author: SMITH, Circuit Judge.

text:
    ENTERGY OPERATIONS, INC., Plaintiff-Appellant v. UNITED GOVERNMENT SECURITY OFFICERS OF AMERICA INTERNATIONAL UNION; United Government Security Officers of America Local 23, Defendants-Appellees
    No. 16-1219
    United States Court of Appeals, Eighth Circuit.
    Submitted: December 13, 2016
    Filed: May 9, 2017

      Counsel who presented argument on behalf of the appellant was Benjamin Hayden Banta, of New Orleans, LA. The following attorney(s) appeared on the appellant brief; Benjamin Hayden Banta, of New Orleans, LA, Laura E. Ogden, of Boston, MA, Keith B. Muntyan, of Boston, MA.
    Counsel who presented argument on behalf of the appellee was Robert B. Kapitan, of E. Wareham, MA. The following attorney(s) appeared on the appellee brief; Steve Rauls, of Little Rock, AR, Robert B. Kapitan, of E. Wareham, MA.
    Before WOLLMAN, SMITH, and BENTON, Circuit Judges.

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

   SMITH, Circuit Judge.

Entergy Operations, Inc. (“Entergy”) terminated Michael Phillips—a security officer at a nuclear power plant—because it thought he could not satisfy a job requirement that he pass a “fit test” for a full-face gas mask. Phillips’s job requires him to be ready, in coordination with others, to repel an armed chemical attack on the plant while wearing the mask. But Phillips has chronic folliculitis. If he shaves too often, his hair follicles become infected or inflamed. Entergy thought this would keep Phillips from shaving often enough to properly wear the mask. An arbitrator ordered Phillips reinstated, largely because Entergy never fit-tested Phillips with facial hair before concluding that it disqualified him from the position. Because Entergy could have reassigned Phillips to a position that did not require a gas mask, and because the arbitrator arguably applied Entergy’s collective bargaining agreement, we affirm the district court’s decision to uphold the arbitration award.

I. Background

Arkansas Nuclear One near Russellville, Arkansas, is subject to numerous federal regulations intended to protect nuclear power plants from “[rjadiological sabotage” carried out by “[w]ell-trained ... and dedicated individuals, willing to kill or be killed” and involving “incapacitating agents and explosives for use as tools of entry.” 10 C.F.R. § 73.1(a)(l)(i)(A),(D). The Nuclear Regulatory Commission promulgates these regulations. The Commission sets broad guidelines and tasks' each nuclear-power-plant licensee with developing a plant-specific protection plan. See 10 C.F.R. § 73.55(b)(1). Entergy is the licensee for Arkansas Nuclear One.

Entergy signed a collective bargaining agreement with the United Government Security Officers of America, Local 23 (“Union”), to provide guard services. The agreement covers a single category of worker: nuclear security officer. Phillips was such an officer. After a year on the job, Phillips was ordered to report to the training department for respirator fit-testing on November 13, 2012. At the time, Phillips had what Entergy describes as a “full goatee.” Senior Technical Training Instructor David Rasmussen, relying on federal regulations, told Phillips that he could not be fit-tested with facial hair.

A week later, Phillips’s doctor diagnosed him with chronic folliculitis. Phillips saw an Entergy doctor, Dr. Andrew Monfee, in December. Dr. Monfee confirmed the diagnosis. He told Entergy that Phillips’s condition could be avoided by not shaving his upper lip and chin, though he could shave often enough to limit his facial hair in these areas to 3-4mm. Dr. Monfee also opined that these areas of facial hair would not be in the sealing area of the respirator that Phillips was required to wear. Days later, Dr. Monfee updated his letter, noting that after speaking with Entergy security personnel, he now understood that the “inner chin cup” of the respirator is part of the seal, and that Phillips would not be allowed to have any hair in that area.

Entergy temporarily reassigned Phillips to train new recruits while it tried to find him an alternative respirator or position. By late January 2013, Entergy had found neither, and it terminated Phillips.

Phillips filed a grievance and the dispute went to arbitration. In March 2015, an arbitrator found that Entergy lacked just cause to terminate Phillips. The arbitrator’s decision turned on two principal facts. First, Entergy never fit-tested Phillips with 3-4mm of facial hair to see whether he could pass. The arbitrator noted that Entergy “refused to provide empirical tests by the application of the mask to [Phillipsj’s face.... The only manner to determine if [Phillips] can obtain a positive seal is by an actual fit-test.” Thus, the arbitrator said, Phillips “should be allowed to undergo a fit-test to lay to rest any argument as to whether or not his condition can be accommodated through the use of any currently available respirator.” Second, the arbitrator pointed out that “[t]here are Post assignments at [Arkansas Nuclear One] that do not require the use of a respirator/mask.” So “[t]he Company position that obtaining a proper face to facepiece seal on a respirator is an essential function of all [Arkansas Nuclear One] Nuclear Security Officers is not supported by the record.” This finding relied on Security Manager Josh Toben’s testimony that officers assigned to two particular posts, the Sally Port and the SOCA Port, are not required to wear a respirator. To-ben also testified that the officers assigned to those posts do not routinely rotate between other posts.

The arbitrator ordered Phillips reinstated with backpay. It also ordered Entergy, “upon successful completion of respirator fit-testing, [Arkansas Nuclear One] Tactical Qualification Course and a review of [Phillips’s] diagnosed medical condition,” to provide Phillips with an acceptable respirator or a reasonable accommodation. The arbitrator was clear, though, that Phillips had to meet basic requirements: “[Phillips] should not view this decision as approval to continuously remain unshaven. He is reminded herein that he must meet the annual respirator fit-testing and Tactical Qualification Course requirements.”

Entergy sued to vacate the award on the grounds that it violated public policy and that the arbitrator exceeded his authority. The district court granted summary judgment to the Union, which represents Phillips in this litigation. The district court concluded that it could not rule in Enter-gy’s favor “without some evidence to show Mr. Phillips’s medical condition prevents him from properly wearing his respirator.” Because Entergy did not fit-test Phillips, the court could not find any regulatory violation, and therefore it could not find that the award violated public policy. The court mentioned, but did not address in detail, Entergy’s alternative argument that the arbitrator exceeded his authority.

II. Discussion

A. Public Policy

We review de novo the district court’s decision to uphold the arbitrator’s award. Homestake Mining Co. v. United Steelworkers of Am., 153 F.3d 678, 680 (8th Cir. 1998). We accept the facts as found by the arbitrator, but we review his legal conclusions de novo to determine whether the award violates public policy. Iowa Elec. Light & Power Co. v. Local Union 204 of the Int’l Brotherhood of Elec. Workers, 834 F.2d 1424, 1427 (8th Cir. 1987). Only a “well defined and dominant” public policy arising from “laws and legal precedents” will trump an arbitration award—“general considerations of supposed public interests” are not enough. W.R. Grace & Co. v. Local Union 759, Int’l Union of the United Rubber, Cork, Linoleum & Plastic Workers, 461 U.S. 757, 766, 103 S.Ct. 2177, 76 L.Ed.2d 298 (1983) (quoting Muschany v. United States, 324 U.S. 49, 66, 65 S.Ct. 442, 89 L.Ed. 744 (1945)). And in employment cases, the question is not whether the employee’s underlying actions violated public policy, but whether his reinstatement will. E. Associated Coal Corp. v. United Mine Workers, 531 U.S. 57, 62-63, 121 S.Ct. 462, 148 L.Ed.2d 354 (2000).

Entergy contends that federal nuclear powerplant regulations establish public policy governing facial hair and respirator use. The following is an overview of the relevant regulations. One covers general interference with a respirator’s seal:

The licensee shall ensure that no objects, materials or substances, such as facial hair, or any conditions that interfere with the face—facepiece seal or valve function, and that are under the control of the respirator wearer, are present between the skin of the wearer’s face and the sealing surface of a tight-fitting respirator facepiece.

10 C.F.R. § 20.1703(h) (2012). Another speaks more clearly to facial hair:

The employer shall not permit respirators with tight-fitting facepieces to be worn by employees who have ... [fjacial hair that comes between the sealing surface of the facepiece and the face or that interferes with valve function....

29 C.F.R. § 1910.134(g)(1)(A) (2012). An appendix to that regulation specifies how fit-tests are to be done—or rather are not to be done:

The test shall not be conducted if there is any hair growth between the skin and the facepiece sealing surface, such as stubble beard growth, beard, mustache or sideburns which cross that respirator sealing surface.

29 C.F.R. § 1910.134, App. A, Pt. I A.9. And one of the Commissions’s regulatory guides—which is non-binding but nonetheless gives the Commission’s view—is even more direct:

Anything in the face-to-facepiece seal area of a tight-fitting respirator that is under the control of the respirator user is prohibited by 10 CFR 20.1703(h).... The list of prohibited materials includes (but is not necessarily limited to) facial hair of any kind in the seal area (the worker must be clean-shaven)....

Nuclear Regulatory Commission, Regulatory Guide 8.15, § 6.2 (1999).

Entergy argues that these regulations prohibit fit-testing Phillips with 3-4mm of facial hair on his chin. We need not decide whether fit-testing Phillips with facial hair would violate federal law. If Entergy may employ Phillips in a post that does not legally require a respirator, then the respirator/facial hair conflict disappears. The arbitrator found such a post: “[Ojfficers assigned to the Sally Port or the SOCA Port are not required to wear a respirator.” The officers assigned to these posts are serving not as an “armed responder,” but as an “armed security officer.” According to the arbitrator’s findings, if the plant were attacked, “those officers assigned to either the Sally Port or the SOCA Port would remain at the respective Port Post.” The officers at these posts do not routinely rotate among other posts.

Entergy contends that these two non-respirator posts are too intertwined with the armed-responder posts for this to be a workable solution. There are two problems with this argument. The first is that to adopt Entergy’s position, we would have to review and overturn the arbitrator’s fact findings, which we may not do. See Iowa Elec. Light & Power Co., 834 F.2d at 1427. The arbitration testimony, moreover, supports the arbitrator’s conclusions. Security Manager Toben testified as follows:

Q. Are there duties that security officers do that do not require an armed response?
A. There are armed security officers and armed responders. I’ll be fairly general....
So in general armed responders are responsible to stay on site, which is in the protected area, and are required to have a gas mask. Armed security officers are another portion of our strategy that can be outside of the protected area and don’t have to always have a gas mask. They need to have one readily available.
We have people working, like I’m sure you know, in the sally port that don’t have to have a gas mask.

Asked whether an officer working at the Sally Port or the SOCA Port would stay there during an attack, Toben answered: “They would stay there.” The reason, To-ben made clear, is that “the guys at the sally port aren’t necessarily part of the integral [response] strategy necessary to implement.” (Toben seems to have been referring to the written response strategy that Entergy is required to submit to the Commission.) It is true that Toben said there would be institutional pressure to join the fight, but that is not the same as a legal pressure, which is the concern of public policy.

The second problem with Entergy’s argument is that the difficulties it asserts are not matters of federal law, but of Entergy practice. Entergy has not argued that its own practice—that is, not requiring officers at the Sally and SOCA ports to have respirators—violates federal law. And at oral argument, Entergy conceded that the alleged need for all officers to be interchangeable rather than assigned to particular posts arises from the parties’ bargaining agreement, not from federal law. Asked whether there is a federal regulation that requires all of Entergy’s security officers to have essentially the same respirator requirements, counsel for Entergy answered: “I don’t believe there’s anything that specific; it’s just the manner in which we’re set up.” Entergy noted that it could, consistent with federal law, have light-duty positions that do not require a respirator.

Entergy also seizes on the arbitrator’s apparently contradictory findings about the respirator requirement. Before finding that certain posts did not require a respirator, the arbitrator found that all nuclear security officers at the plant must be given respirators, must be able to quickly put them on, and must be able to provide an armed response while wearing them. This finding, however, does not contradict the arbitrator’s alternative-post finding. The arbitrator made this finding in the background section of his opinion, while discussing the training required of all officers. All Entergy officers undergo the’ same training, but they do not carry out the same duties. Phillips, as the arbitrator found, can shave for a fit-test, and presumably can meet the non-respirator training requirements (no one argues otherwise). Phillips’s facial hair becomes a problem if continued respirator use is required. But if there is a post that Phillips can man without continued use of a tight-fitting respirator—and on this record we must conclude that there is—then Entergy will not violate federal law by placing Phillips in that post. This might not be Entergy’s preference, but it agreed to have an arbitrator resolve this issue, and it has not persuaded us that its own staffing practices violate federal law.'

B. Arbitrator’s Authority

Entergy also argues that the arbitrator exceeded his authority. A party making this argument bears a heavy burden. Oxford Health Plans LLC v. Sutter, — U.S. -, 133 S.Ct. 2064, 2068, 186 L.Ed.2d 113 (2013). Entergy bargained for the arbitrator’s interpretation of its contract. If the arbitrator even arguably interpreted and applied the agreement, then we must uphold the award. Id. The narrow exception to this rule is when the arbitrator “ ‘act[s] outside the scope of his contractually delegated authority’—issuing an award that ‘simply reflects] [his] own notions of [economic] justice’ rather than ‘drawing] its essence from the contract.’ ” Id. (alterations original) (quoting E. Associated Coal Corp., 531 U.S. at 62, 121 S.Ct. 462)). To put it another way, the arbitrator cannot ignore or amend the parties’ agreement. Excel Corp. v. United Food & Commercial Workers Int’l Union, 102 F.3d 1464, 1468 (8th Cir. 1996).

Entergy first contends that the arbitrator exceeded his authority by requiring Entergy to violate federal regulations. But as we noted above, the arbitrator did not do so. Next Entergy argues that the' arbitrator required Entergy to disregard the bargaining agreement’s testing-and-training provision. This provision, according to Entergy, allows Entergy to require industry-standard—and legally-required—testing and training. The agreement, though, speaks of testing and training only in general, and Entergy has not shown that respirator testing and training are required for all positions, particularly when not relevant to the position. Entergy also argues that the arbitrator ordered Phillips reinstated to a position that does not exist. Yet this argument contradicts the arbitrator’s finding that an alternative position did exist, and we must accept that finding.

Entergy’s remaining arguments focus on the alleged divergence between the bargaining agreement’s single job category and the arbitrator’s findings about multiple, different posts. According to Entergy, the agreement does not contemplate permanent placement in the Sally or SOCA ports, and the arbitrator’s award therefore forces Entergy to create a new position. Entergy correctly points out that the bargaining agreement envisions one broad job category, but Entergy’s actual practice established differences between various posts. The arbitrator did not alter or contradict the bargaining agreement by relying on Entergy’s actual practice in staffing the posts. (Entergy does not argue that its own practice is inconsistent with the agreement.) Also, the arbitrator was discussing the implications of placing Phillips at the Sally or SOCA ports in the context of the bargaining agreement’s accommodation provision. The arbitrator therefore did not stray outside his authority to interpret and apply the contract. The award was within the range of possibilities that Eh-tergy bargained for.

III. Conclusion

Accordingly, we affirm the district . court’s judgment.

      . The Honorable Joe J. Volpe, United States Magistrate Judge for the Eastern District of Arkansas, to whom the case was referred for final disposition by consent of the parties under 28 U.S.C. § 636(c).