source: Caselaw Access Project

author: ROGERS, Circuit Judge:

license: Public Domain

text:
    NCR CORPORATION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
    No. 15-1230
    Consolidated with 15-1248
    United States Court of Appeals, District of Columbia Circuit.
    Argued September 19, 2016
    Decided November 1, 2016

      Howard M. Bloom, Boston, MA, argued the cause and filed the briefs for petitioner.
    Kyle A. deCant, Attorney, National Labor Relations Board, argued the cause for respondent. With him on the brief was Richard F. Griffin, Jr,, General Counsel, John H. Ferguson, Associate General Counsel, Linda Dreeben, Deputy Associate General Counsel, and Robert J. Englehart, Supervisory Attorney.
    Before: ROGERS and TATEL, Circuit Judges, and EDWARDS, Senior Circuit Judge.
   ROGERS, Circuit Judge:

NCR Corporation (“NCR”) petitions for review of the decision and order of the National Labor Relations Board that it violated section 8(a)(5) and (1) of the National Labor Relations. Act (“Act”), 29 U.S.C. § 158(a)(5) & (1) (2012), when it refused to bargain with the Union after, a mail ballot election. NCR contends that the Board abused its discretion by refusing to consider seven late-received ballots because enforcement of its decision and order would result in the disenfranchisement of an outcome-determinative number of voters and negatively affect the integrity of the election, requiring NCR to recognize and bargain with a unit that may not represent a majority of employees who cast valid ballots. Board precedent, NCR maintains, establishes that where an election irregularity occurs resulting in possible disenfranchisement of a determinative number of votes, the election should be set aside and a re-run of the election conducted. NCR also contends that the Board “improperly exalted declaring the final result of the election over the Board policy to afford employees the broadest participation in election proceedings.” Pet’r’s Br. 11-12. For the following reasons, we deny the petition for review and grant the Board’s cross-application for enforcement.

I.

The facts are undisputed. On June 9, 2014, the International Brotherhood of Electrical Workers Local 2222 (“Union”) filed a petition for Board" certification as representative of certain NCR employees. Thereafter, NCR and the Union signed a Stipulated Election Agreement calling for a mail ballot election. Paragraph 4 of the Agreement stated:

The election will be conducted by mail.... Voters must return their mail ballots so that they will be received in the National Labor Relations Board, Region 01 office by close of business on August 4, 2014_ [Ballots] will be counted at the Region 01 office ... at 10:00 AM on August 5, 2014.

On July 9, 2014, a Notice of Election was mailed to forty-one employees whom NCR had determined were eligible to vote in the election. The Notice added the bold-faced text:

The election will be conducted by mail.... Voters must return their mail ballots so that they will be received in the National Labor Relations Board, Region 01 office by close of business on Monday, August 4, 2014.... [Ballots] will be counted at the Region 01 office ... at 10:00 AM on Tuesday, August 5, 2014.

The ballots were mailed on July 21, 2014.

By close of business on August 4, 2014, twenty-eight ballots had been delivered to the Region 01 office. It was agreed to delay commencement of the count from 10:00 AM to 11:00 AM on August 5, 2014 in order to consider any additional ballots arriving with that day’s mail. Three more ballots arrived on August 5, and the count began at 11:00 AM. The Union won the election by a vote of seventeen to fourteen. All thirty-one ballots were found to be valid; none was challenged. Two workdays later, on August 7, 2014, seven additional ballots were delivered to the Region 01 office. Five were postmarked from Providence, Rhode Island on July 31; one from Brockton, Massachusetts on August 1; and one from Boston, Massachusetts on August 4.

On August 8, 2014, NCR requested that Region 01’s Acting Regional Director open and count the seven late-received ballots. The Union objected. The Acting Director denied NCR’s request, and NCR filed objections to the conduct of the election. The Regional Director recommended that the Board overrule NCR’s objections because “the, conduct of the election was in accord with established election mechanics; no employee was misled as to the balloting requirements; and ... a deviation from the established procedure would place an unusually high burden on the election process in general and prevent a prompt conclusion to representation .proceedings.” Reg. Dir. Decision 1 (Sept. 9, 2014) (“Reg. Dir.”). NCR filed exceptions. On April 2, 2015, the Board adopted the Regional Director’s findings and recommendations and certified the Union as the collective bargaining representative for the bargaining unit at NCR. NCR Corp. & Int’l Bhd. of Elec. Workers, Local 222, 01-RC-130289 (Apr. 2, 2015) (“Bd. Dec.”).

When NCR refused to bargain, the Union filed an unfair labor practice charge, and a complaint and notice of hearing alleged that NCR violated section 8(a)(5) and (l) of the Act by refusing to recognize and bargain with the Union. Upon the filing of NCR’s answer admitting its refusal to bargain and claiming the Board improperly certified the Union, the General Counsel moved for summary judgment in this “straightforward test of certification case.” Mem. in Supp. of Mot. for Summ. J. & for Issuance of Bd. Decision & Order 1 (May 14, 2015). Following NCR’s reply to an order to show cause, the Board granted summary judgment and found NCR had violated section 8(a)(5) and (l) of the Act. The Board concluded that all of the representation issues were or could have been litigated in the representation proceedings and that NCR neither offered to adduce newly discovered evidence nor alleged any special circumstances that would require the Board to reexamine the Regional Director’s decision. NCR Corp. & Int’l Bhd. of Elec. Workers, Local 222, 362 NLRB No. 146 (July 13, 2015). NCR petitions for review.

II.

NCR contends that the Board abused its discretion in overruling the objections to the conduct of the mail ballot election where late-received ballots were not opened and counted. Specifically, NCR maintains that the Board failed to decide whether the seven voters who mailed their ballots in accordance with the Notice of Election were possibly disenfranchised, and in so doing, arbitrarily sacrificed voter enfranchisement to administrative expediency. The voting instructions were, NCR continues, “certain to confuse voters, and thus, constituted an election irregularity.” Pet’r’s Br. 17. So, the election should be set aside in accordance with existing Board precedent, Garda World Security Corp., 356 NLRB 594 (2011), and Wolverine Dispatch, Inc., 321 NLRB 796 (1996).

Our review of the Board’s decision and order is limited, and especially so in regard to representative elections where “Congress has entrusted the Board with a wide degree of discretion in establishing procedure and safeguards necessary to insure the fair and free choice of bargaining representatives by employees.” NLRB v. A.J. Tower Co., 329 U.S. 324, 330, 67 S.Ct. 324, 91 L.Ed. 322 (1946); see Durham School Servs., LP v. NLRB, 821 F.3d 52,

58 (D.C. Cir. 2016); Serv. Corp. Int’l v. NLRB, 495 F.3d 681, 684 (D.C. Cir. 2007). The Board’s interpretation of the Act will be upheld unless it “is not ‘reasonable and consistent with applicable precedent.’ ” Serv. Corp. Int’l, 495 F.3d at 684 (quoting Fashion Valley Mall, LLC v. NLRB, 451 F.3d 241, 243 (D.C. Cir. 2006)). The Board’s findings of fact are conclusive so long as “supported by substantial evidence. ...” 29 U.S.C. § 160(e), (f) (2012). Because NCR “admit[ted] it refused to bargain with the union, if the union was properly certified, then the Board’s order is supported by substantial evidence.” NLRB v. Pinkerton’s Inc., 621 F.2d 1322, 1325 (6th Cir. 1980).

A.

NCR agreed to a mail ballot election and voluntarily entered into a Stipulated Agreement setting forth the terms for the conduct of the election. The Agreement provided, and the accompanying Notice to employees stated, that the Board would mail ballots to employees on July 21, 2014 and that “[vjoters must return their mail ballots so that they will be received in the [ ] Board Region 01 office by close of business” on August 4, 2014. Both the Agreement and Notice specified: “The mail ballots will be counted at the Region 01 office” at 10:00 AM on August 5, 2014. Consistent with the Agreement, the Board Agent opened and counted the thirty-one ballots received by the time of the count. Nonetheless, NCR contends the Regional Director should have counted the seven additional ballots that arrived two days later because the postmark dates show employees sent them in sufficient time for them to have been received by August 4 even if they did not arrive until two days after the count. NCR maintains that because the Agreement and Notice stated only that ballots must be mailed so that they will be received by August 4, not that they had- to arrive by that date, all that was required of employees was to mail their ballots “early enough, in their reasonable estimation, to be received at the [Region 01 office] by August 4.” Pet’r’s Br. 17.

The Board did not abuse its discretion in rejecting NCR’s objections to the conduct of the election. First, the Board concluded that the phrase “so that they will be received” by August 4 was not misleading. It noted that sentence has been used in Board notices for many years and makes clear that the ballots must be received in the Region 01 office by the date set in order to be counted. Second, NCR ignores the following sentence, in both the Agreement and the Notice, that explicitly stated ballots would be counted on August 5, “clearing] up any possible confusion as to when the voters had to have their ballots arrive in order to be counted.” Bd. Dec. 1 (see Reg.' Dir. 4). Third, Board precedent shows that while it has sometimes counted ballots that arrive after a due date, it has consistently refused to count ballots that arrived after the count, See Watkins Constr. Co., Inc., 332 NLRB 828 (2000); Am. Driver Serv., Inc., 300 NLRB 754 (1990); Kerrville Bus. Co., 257 NLRB 176 (1981). Likewise the NLRB Representative Casehandling Manual, section 11336.5(c), is to the same effect, and NCR bound itself to the Board’s post-election procedures in the Stipulated Election Agreement, which states that “[a]ll procedures after the ballots are counted shall conform with the Board’s Rules and Regulations.”

NCR’s objections to the election stem, then, from a misreading of the Agreement and Notice, and from a-disagreement with the Board’s policy on handling late-received ballots. To the extent NCR maintains that voters compared the text of the 2014 notice to notices sent in 2008 and 2010 and determined that the difference in wording was meaningful, NCR proffered no evidence of confusion and its view is facially unpersuasive. The Board = points out that many notices cited by NCR contain identical text or simply state the same requirements in different terms and would prevent counting late-received ballots.

As regards the Board’s precedent, NCR contends that the cases cited by the Board, as well as the Board’s subsequent decision in Classic Valet Parking, Inc., 363 NLRB No. 23 (2015), are distinguishable because they did not involve an election irregularity. NCR instead points to the Board’s unpublished decision in MCS Consultants, Inc., 29-RC-11339 (Sept. 25, 2006), where “[i]n light of the unique circumstances,” when only two votes of a potential six total were timely received, the Board ordered the opening and counting of ballots received after votes had been tallied, so long as the ballots were timely mailed. MCS Consultants, Inc., 29-RC-11339 at *2. In Classic Valet, however, the Board explained that MCS Consultants “is neither precedential nor consistent with the Board’s established rule on late-arriving mail ballots.” Classic Valet Parking, Inc., 363 NLRB at *1 n.2 (2015).

The Board’s adherence to the parties’ stipulated agreements as to phrasing of the instructions and the ballot count date does not constitute an election irregularity. See Kirsch Drapery Hardware, 299 NLRB 363, 364 (1990). Party stipulations governing representation proceedings are binding “absent a showing of ‘changed or unusual-circumstances.’” Comput. Assoc. Int’l v. NLRB, 282 F.3d 849, 852 (D.C. Cir. 2002) (quoting Micro Pac. Dev. Inc. v. NLRB, 178 F.3d 1325, 1335 (D.C. Cir. 1999)). Moreover, the Board need not find an election by mail invalid “whenever a potentially decisive number of votes, no matter how small, is lost through the vagaries of mail delivery.” J. Ray McDermott & Co., Inc. v. NLRB, 571 F.2d 850, 855 (5th Cir. 1978). Such an approach “might unduly deter the use of mail balloting in cases like this in which a mail election .,. might prove more representative of, and fairer to, the voting employees.” Id. Here, the Board counted thirty-one ballots of forty-one eligible voters, a 76% participation rate. This is a higher percentage than in Antelope Valley Bus Co., where the court concluded the petitioner had failed to show an election was invalid when some voters claimed not to have received their mail ballots, but 66% of the eligible voters successfully voted. Antelope Valley Bus Co. v. NLRB, 275 F.3d 1089, 1095-96 (D.C. Cir. 2002). Absent some evidence of misconduct, NCR fails to meet its “heavy burden” of showing that the election was improper. Id. at 1096 (quoting Pinkerton’s Inc., 621 F.2d at 1324).

The Board, further, was under no obligation to discuss the decisions on which NCR relies where “the grounds for distinction are readily apparent.” Id. at 1092. In Garda World Security Corp., the Board found an election irregularity where a Board agent closed the first of two polling sessions early and potentially disenfranchised voters who had arrived during the scheduled polling hours but left without voting when the agent told them their ballots would be subject to challenge. Garda World Sec. Corp., 356 NLRB 594, 594 (2011). In Wolverine Dispatch, Inc., polls were temporarily closed in the middle of a scheduled polling session. Wolverine Dispatch, Inc., 321 NLRB 796, 796 (1996). Finding that an outcome determinative number of voters could have been disenfranchised by this unscheduled closing, the Board set aside the election. Id. at 797. Of course, election irregularities are not limited to unscheduled closings of the polls. But here the Board counted all of the ballots that were received by the Notice deadline, and counted those ballots received the following day pursuant to the agreement of the parties. Absent an election irregularity resulting from the Board’s conduct of the election, the Board’s disenfranchisement precedent is inapplicable.

B.

NCR’s challenge to the content of the Agreement and Notice reflects, in effect, a disagreement with the Board’s policy on late-received mailed ballots. Although the Agreement approved by the Regional Director did not use the specific, phrasing proposed by NCR, NCR never objected either to the changes or to the return or ballot count dates prior to filing its petition for review with this court. See NLRA § 10(e), 29 U.S.C. § 160(e). Because pre-election agreements promote the prompt and certain completion of representation proceedings, the Board, with court approval, declines to entertain challenges to the parties’ chosen election date after the fact. See Cmty. Care Sys. Inc., 284 NLRB 1147, 1147 (1987); NLRB v. Hood Furniture Mfg. Co., 941 F.2d 325, 330-31 (5th Cir. 1991); Van Leer Containers,. Inc. v. NLRB, 841 F.2d 779, 787-88 (7th Cir. 1988). The Board’s long-established policy is based on the view that “otherwise an election could be converted from a definitive resolution of preference into a protracted resolution of objections disregarded or suppressed against the contingency of an adverse result.” A.J. Tower, 329 U.S. at 330, 67 S.Ct. 324; see Reg. Dir. 6 (Sept. 9, 2014).

The heart of NCR’s argument thus appears to be that the Board arbitrarily declined to permit the late-received, determinative mailed ballots to be counted because only two days had elapsed after the votes were counted and postmarks showed these ballots were mailed prior to the August 5 date when the ballots were to be counted. The Board’s failure to explain why counting these seven ballots would have interfered with the prompt completion of the election, NCR contends, was an abuse of discretion. NCR notes that the Board accommodates postal delays in other circumstances, accepting objections to election results postmarked no later than the day before the due date regardless of when the objections are actually delivered. See 29 C.F.R. § 102.111(b). NCR adds that the Board generally asks that eligible voters wait a week from the mailing' date before contacting it about missing ballots to allow the Postal Service adequate time to make deliveries, acknowledging the potential for postal delays with respect to the initial delivery of ballots that therefore necessitated a longer window to return ballots than was allowed for here.

The Board’s policy of having a final ballot count at the time the ballots are counted is long established and well supported by the policy considerations recounted in A.J. Tower, 329 U.S. at 331, 67 S.Ct. 324. These other policies simply highlight that the Board has taken into consideration timing issues in different circumstances, as distinct from showing that the Board was unreasonable in not considering a material factor, particularly when the Notice of Election was not ambiguous about the return or ballot count dates. NCR initially could have requested a later date for the ballot count. See Bd. Dec. 1 (see Reg. Dir. 6). Additionally, NCR’s interpretation would require ballots to be counted regardless of when they were actually received, even if weeks or months after the scheduled date of the count had passed. And “individualized determination[s]” of whether ballots were mailed reasonably far enough in advance “would prove time-consuming and potentially lead to extensive post-election litigation.” NLRB v. Cedar Tree Press, Inc., 169 F.3d 794, 797 (3d Cir. 1999).

The Board’s interpretation, based on the balancing of conflicting interests in affording employees the broadest participation-in election proceedings .while still protecting against “delay and uncertainty,” see Abbott Ambulance of Ill. v. NLRB, 522 F.3d 447, 461 (D.C. Cir. 2008), is consistent with its precedent. It furthers an election process that allows the parties potentially to begin collective bargaining the day after the ballots are counted. See Monte Vista Disposal Co., 307 NLRB 631, 533 (1992). NCR’s interpretation could shift the balance of interests chosen by the Board. Whether the Board’s finality concerns might be mitigated under a mail ballot procedure providing a single drop-dead date of the start of the ballot count, see Oneida Cty. Cmty. Action Agency, Inc., 317 NLRB 852, 852-53 (1995) (Member Truesdale, concurring), remains to be seen. That determination is for the Board, not the court. See Antelope Valley Bus Co., 275 F.3d at 1095.

Accordingly, we deny the petition for review and grant the Board’s cross-application for enforcement of its Order.


author: TATEL, Circuit Judge:

text:
    UNITED STATES of America, United States Department of Justice, et al., Appellees v. PHILIP MORRIS USA INC., Formerly known as Philip Morris Incorporated, Appellee R.J. Reynolds Tobacco Company, Appellant Brown & Williamson Tobacco Corporation, Directly and as successor by merger to American Tobacco Company, et al., Appellees
    No. 15-5210
    United States Court of Appeals, District of Columbia Circuit.
    Argued September 13, 2016
    Decided November 1, 2016

      Jeffrey A. Mandell argued the cause for appellant. With him on the briefs were Noel Francisco and Peter J. Biersteker, Washington, DC. David M. Bernick, New York, NY, entered an appearance.
    Lewis S. Yelin, Attorney, U.S. Department of Justice, argued the cause for ap-pellee United States of America. With him on the brief were Benjamin C. Mizer, Principal Deputy Assistant Attorney General, and Mark B. Stern and Alisa B. Klein, Attorneys, Washington, DC. Melissa N. Patterson, Attorney, entered an appearance.
    Howard M. Crystal and Katherine A, Meyer, Washington, DC, were on the brief for plaintiff-intervenors-appellees Tobacco-Free Kids Action Fund, et al.
    Before: TATEL, Circuit Judge, and EDWARDS and SENTELLE, Senior Circuit Judges.
   TATEL, Circuit Judge:

This is the latest appeal in the government’s long-running RICO case against the nation’s major cigarette manufacturers. Ten years ago, the district court issued a comprehensive remedial order, which included a requirement that defendants and their successors televise “corrective statements” about the dangers of smoking. Eight years later, one defendant, R.J. Reynolds Tobacco Company (RJR), sought to dissolve that order as void under Federal Rule of Civil Procedure 60(b)(4) and unjust under Rule 60(b)(6). The district court denied RJR’s motion, and we affirm. As the Supreme Court made clear in United Student Aid Funds, Inc. v. Espinosa, relief under Rule 60(b)(4) is available “only in the rare instance where a judgment is premised either on a certain type of jurisdictional error or on a violation of due process.” 559 U.S. 260, 271, 130 S.Ct, 1367, 176 L.Ed.2d 158 (2010). None of those defects exists here. And although RJR could have challenged its remedial obligations under Rule 60(b)(6), its failure to do so in a timely manner dooms its motion now.

I.

In 1999, the United States sued RJR, Brown & Williamson Tobacco Corporation, and several other cigarette manufacturers under the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. §§ 1961-68, alleging a conspiracy to deceive the American public about the dangers of cigarettes. The history of this case is described in our many prior decisions. See, e.g., United States v. Philip Morris USA, Inc., 566 F.3d 1095, 1105-10 (D.C. Cir. 2009) (Remedial Opinion) (affirming most aspects of the district court’s liability finding and remedial order); United States v. Philip Morris USA Inc., 801 F.3d 250, 252-56 (D.C. Cir. 2015) (Corrective Statements Opinion) (largely upholding the content of the corrective statements). For purposes of this appeal, the relevant facts are as follows.

Prior to trial, Brown & Williamson merged its domestic tobacco operations with RJR and reconstituted itself into a passive holding company called Brown & Williamson Holdings (BWH). The district court then conducted a nine-month bench trial followed by a two-week remedial hearing. In 2006, the court found defendants liable and ordered a complex set of remedies, including a prohibition on the use. of misleading terms such as “ultra light” and “low tar,” a ban on deceptive statements .about the addictiveness of cigarettes, and the remedy at issue here: a requirement that each defendant televise corrective, advertisements about the health consequences of smoking. United States v. Philip Morris USA Inc., 449 F.Supp.2d 1, 938-45 (D.D.C. 2006). The remedial order required the ads to be run in primetime on one of “three major television networks” at least once a week for a year. Id. at 941. Central to this case, the order expressly stated that the injunction applied to “each of the Defendants, except [three], and to each of their ... successors.” Id. at 937.

The tobacco manufacturers appealed, challenging many aspects of the order, including the corrective statements remedy and its application to BWH. Relying on an earlier opinion in which we held that RICO’s remedial provision, 18 U.S.C. § 1964(a), authorizes only forward-looking remedies aimed at preventing future violations of the Act, the manufacturers argued that the district court lacked authority to require corrective statements. They also argued that the district court had no basis for subjecting BWH to the remedial order given its status as a passive holding company. In 2009, we upheld the corrective statements remedy and remanded for fact finding on “the extent of BWH’s control over tobacco operations” and its “current capabilities” to “commit future RICO violations.” Remedial Opinion, 566 F.3d at 1135, 1140. On remand, the parties agreed that BWH was not a defendant and thus not subject to the injunction, including the obligation to televise corrective ads. See United States v. Philip Morris USA, Inc., No. 99-2496, ECF No. 5846 (D.D.C. Dec. 22, 2010) (approving the parties’ agreement concerning BWH).

Two years later, the district court issued an order setting forth the final text of the corrective statements, which the manufacturers appealed. See United States v. Philip Morris USA, Inc., 907 F.Supp.2d 1, 27 (D.D.C. 2012). While that appeal was pending, the parties began to negotiate how the statements would be disseminated. Although they agreed on most issues, they disagreed about whether RJR had to televise two sets of ads, one as an original defendant and another in its capacity as Brown & Williamson’s successor. In RJR’s view, requiring it to run two sets of ads exceeded the court’s remedial authority. For its part, the government insisted that double ads were required because the injunction, by its plain terms, applies to “each of the Defendants ,.. and to each of their ... successors.” See Philip Morris, 449 F.Supp.2d at 937. In June 2014, the district court entered a consent order outlining the implementation plan and explaining that by agreeing to the order RJR had not “waiv[ed] [its] ... challenge to the requirement that it publish Corrective Statements on television in its capacity as successor to Brown & Williamson.” United States v. Philip Morris USA, Inc., No. 99-2496, 2014 WL 2506611, at *10 (D.D.C. June 2, 2014).

Shortly after entry of the consent order, RJR filed a Rule 60 motion seeking “relief from those provisions of [the remedial order] ... that require corrective statements on behalf of [Brown & Williamson].” Philip Morris, No. 99-2496, ECF No. 6103, at 1 (D.D.C. June 11, 2014). Specifically, RJR invoked Rule 60(b)(4), which allows courts to reopen final orders that are “void,” and Rule 60(b)(6), which allows courts to revisit final orders for “any other reason that justifies relief.” See Fed. R. Civ. P. 60. In other words, RJR sought to modify the injunction so that it would have to run only one set of ads. In May 2015, we largely upheld the order specifying the text of the corrective statements. Corrective Statements Opinion, 801 F.3d at 252-62. A week later, the district court denied RJR’s Rule' 60 motion, prompting this appeal.

RJR argues, as it did in the district court, that the order requiring it to run ads as Brown & Williamson’s successor is void under Rule 60(b)(4) because it is punitive rather than preventive, and thus exceeds the district court’s RICO authority. RJR also argues that the double-ad requirement is unjust under Rule 60(b)(6).

II.

We begin, as we must, with our jurisdiction. Steel Co. v. Citizens for Better Environment, 523 U.S. 83, 94, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (“On every writ of error of appeal, the first and fundamental question is that of jurisdiction.... ” (quoting Great Southern Fire Proof Hotel Co. v. Jones, 177 U.S. 449, 453, 20 S.Ct. 690, 44 L.Ed. 842 (1900))). Invoking 28 U.S.C. § 1292(a), which authorizes review of orders “refusing to dissolve or modify injunctions,” RJR argues that we may hear this appeal because the district court denied its request to eliminate the double-ad requirement. Although the government agrees, intervenors, a group of six public health organizations, question our jurisdiction on the ground that the district court’s denial of RJR’s Rule 60 motion “did not change [RJR’s] relationship” to the injunction. Intervenors’ Br. 18 n.7.

Section 1292(a) creates an exception to the general rule that appellate courts may review only “final decisions.” Salazar ex rel. Salazar v. District of Columbia, 671 F.3d 1258, 1261 (D.C. Cir. 2012) (quoting Carson v. American Brands, Inc., 450 U.S. 79, 83, 101 S.Ct. 993, 67 L.Ed.2d 59 (1981)). This circuit construes section 1292(a) narrowly in order to avoid the “debilitating” problems engendered by piecemeal appeals. Id. (quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 471, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978)). As we explained in a 2012 decision in this very case, section 1292(a) jurisdiction exists in only two circumstances: where the district court order “clearly grants or denies a specific request for injunctive relief,” such as a request to dissolve an injunction; or, if the order does not clearly grant or deny such relief, where the appellant can show that it has the “practical effect” of doing so. United States v. Philip Morris USA Inc., 686 F.3d 839, 844 (D.C. Cir. 2012); see also Salazar, 671 F.3d at 1261-62. In the latter situation, the appellant must show that the order “might have a serious, perhaps irreparable, consequence” and can be “effectually challenged only by immediate appeal.” Philip Morris, 686 F.3d at 844 (quoting Salazar, 671 F.3d at 1262) (internal quotation marks omitted). An order that “merely clarifies” an injunction fails this test and is therefore unreviewable. Washington Metropolitan Area Transit Commission v. Reliable Limousine Service, LLC, 776 F.3d 1, 9 (D.C. Cir. 2015).

Intervenors contend that the district court’s Rule 60 order merely clarified RJR’s existing obligations and thus lacks the practical effect required for appellate jurisdiction. But this argument overlooks the first step of section 1292(a) analysis. Although it is true that the denial of RJR’s Rule 60 motion left its remedial obligations intact, an order’s “practical effect” comes into play only .if it is unclear whether the order denied a specific request for injunc-tive relief. Philip Morris, 686 F.3d at 844. Here, the remedial order expressly applies to “each of the Defendants ... and to each of their ... successors,” Philip Morris, 449 F.Supp.2d at 937, RJR sought to dissolve its successor obligations, and the district court refused to do so. Because the district court clearly denied “a specific request to dissolve an injunction,” Salazar, 671 F.3d at 1261, we have section 1292(a) jurisdiction.

III.

Rule 60(b)(4) authorizes relief from a final order if “the judgment is void.” Fed. R. Civ. P. 60(b)(4). We review a district court’s Rule 60(b)(4) decision de novo. Bell Helicopter Textron, Inc. v. Islamic Republic of Iran, 734 F.3d 1175, 1179 (D.C. Cir. 2013).

The Supreme Court addressed Rule 60(b)(4)’s scope in United Student Aid Funds, Inc. v. Espinosa, 559 U.S. at 260, 130 S.Ct. 1367. That case concerned a provision of the Bankruptcy Code that permits discharge of student loan debts only after the bankruptcy court finds that failure to discharge the debt would impose “undue hardship on the debtor and his dependents.” Id.. at 263, 130 S.Ct. 1367 (citing 11 U.S.C. §§ 523(a)(8), 1328). In Espinosa, the , bankruptcy court discharged a student debt without making the requisite “undue hardship” finding. Id. at 265,130 S.Ct. 1367. Holding that this error did not render the confirmation order void, the Supreme Court explained that Rule 60(b)(4) applies “only in the rare instance where a judgment is premised either on a certain type of jurisdictional error or on a violation of due process that deprives a party of notice or- the opportunity to be heard.” Id. at 271, 130 S.Ct. 1367. Although the Court did not specify which types of jurisdictional infirmities make a judgment void, it did cite a First Circuit case and two treatises limiting voidness to defects in personal jurisdiction, subject matter jurisdiction, and due process. Id. None of those defects is present here. As RJR concedes, “the district court had subject matter jurisdiction in this action,” Appellant’s Br. 1, and RJR neither challenges personal jurisdiction nor asserts a due process violation.

Instead, RJR contends that the injunction is void because it exceeds the district court’s “remedial jurisdiction.” Appellant’s Br. 26. In support, RJR notes that both RICO’s remedial provision, 18 U.S.C. § 1964(a), and our prior opinions speak in terms of the district court’s “jurisdiction” to.prevent RICO violations, see, e.g., Corrective Statements Opinion, 801 F.3d at 256. RJR also points out that the Court in Espinosa nowhere limited “jurisdictional error[s]” under Rule 60(b)(4) to subject matter and personal jurisdiction. 559 U.S. at 271, 130 S.Ct. 1367. This is true. Indeed, Espinosa contains a footnote in which the Court declined to decide whether other errors—specifically, .the discharge of certain tax and child support debts, which the Bankruptcy Code prohibits—might also render a judgment “void” for Rule 60(b)(4) purposes. Id. at 273 n.10, 130 S.Ct. 1367. Espinosa thus left the exact boundaries of voidness uncharted.

In our view, however, mere use of the word “jurisdiction” is insufficient to turn a remedial error into a basis for Rule 60(b)(4) relief. As the Supreme Court has made clear, jurisdiction is “a word of many, too many, meanings,” Steel Co., 523 U.S. at 90, 118 S.Ct. 1003—a proposition all too evident in this case. In section 1964, the term “jurisdiction” i’efers to a court’s authority to impose certain remedies. 18 U.S.C. § 1964(a). That authority is fundamentally different from a court’s subject matter jurisdiction over a case'and from its personal jurisdiction over, the parties, both of which concern the power to proceed with a case at all.

Extending Rule 60(b)(4) relief beyond such “fundamental infirmit[ies],” Espinosa, 559 U.S. at 270, 130 S.Ct. 1367, would raise serious finality concerns. Because remedial authority is by nature broad, allowing Rule 60(b)(4) challenges to allegedly unauthorized remedies could produce an endless series of interlocutory appeals, especially in complex, long-running cases. Under RICO, for example, even though district court remedial authority is limited to “preventing and restraining” violations of the statute, courts nonetheless retain expansive power to craft remedies within that stricture, as the comprehensive injunction in this case well illustrates.

This finality problem, moreover, is not limited to RICO cases. The Sherman Act, like RICO, grants district courts “jurisdiction to prevent and restrain violations” of the Act. 15 U.S.C. § 4. Under RJR’s conception of voidness, litigants could upend complex remedial orders in any antitrust case years or even decades after those orders became final. The same holds true for litigation arising under any statute that grants courts remedial “jurisdiction.” See, e.g., 15 U.S.C. § 378(a) (granting “jurisdiction to prevent and restrain violations” of cigarette tax laws); 31 U.S.C. § 5365(a) (granting “jurisdiction to prevent and restrain” internet gambling violations). And if remedial overreach renders an order void, a statute need not even say “jurisdiction” for remedial errors to trigger Rule 60(b)(4) relief. Complex remedial schemes in voting rights, securities fraud, affirmative action, prison conditions, and scores of other cases could all be challenged on the ground that the remedies imposed were, in one litigant’s view, unauthorized by the statute at issue.

This is precisely the outcome the Supreme Court in Espinosa warned us to avoid. Although the Court never delineated the precise limits of voidness, it did make clear that the list of defects that render a judgment void must be “exceedingly short,” lest “Rule 60(b)(4)’s exception to finality ... swallow the rule.” 559 U.S. at 270, 130 S.Ct. 1367. Heeding that guidance, we hold that Rule 60(b)(4) does not permit relief where a court has exceeded its remedial authority. Cf. United States v. Boch Oldsmobile, Inc., 909 F.2d 657, 662 (1st Cir. 1990) (“Consent decrees that run afoul of the applicable statutes lead to an erroneous judgment, not to a void one.”). Such errors are simply not the type of fundamental defects the Court had in mind in Espinosa.

Nothing in our prior opinions forecloses this understanding of Rule 60(b)(4). Invoking law of the case, RJR points out that our rulings in this case establish that RICO “constrains the district court’s remedial jurisdiction.” Appellant’s Br. 26. But as we have just explained, remedial jurisdiction differs significantly from subject matter and personal jurisdiction. Although we have confined district court remedial jurisdiction to remedies that “prevent and restrain” violations of the Act, see Corrective Statements Opinion, 801 F.3d at 256, we have never held that an order exceeding the court’s section 1964 authority falls within Rule 60(b)(4).

RJR also leans on Karsner v. Lothian, 532 F.3d 876 (D.C. Cir. 2008). In that case, the district court denied a state Securities Commissioner’s motion to intervene in an action to'confirm an arbitration proceeding. Id. at 879. On appeal, the Commissioner asserted that if the case were remanded to the district -court she would “move under Rule'60(b)(4) to void” the confirmation order on the ground that the district court had confirmed an arbitrator’s “recommendation” when the statute authorized it to confirm only arbitration “award[sj.” Id. at 886. In response, we observed that “before a judgment may be deemed void ... it must be determined that the rendering court was powerless to enter it.” Id. (quoting Combs v. Nick Garin Trucking, 825 F.2d 437, 442 (D.C. Cir. 1987)). We also noted that if “the Commissioner successfully move[d] under Rule 60(b)(4) to void the district court’s confirmation order,” the court would need to identify a source of authority for its revised order. Id. at 887. Seizing on this dicta, RJR contends that voidness applies any time a court has “acted outside of its authority,” Appellant’s Br. 18. Karsner concerned the erroneous denial of a motion to intervene. Although the court discussed Rule 60(b)(4) and even implied that such relief might be available, it never held that Rule 60(b)(4) relief was warranted on remand. In any event, Kars-ner preceded Espinosa by two years.

Our conclusion, which flows from Espi-nosa’s instruction that voidness is “rare,” 559 U.S. at 271, 130 S.Ct. 1367, does not leave parties unable to challenge remedies that exceed a district court’s remedial authority. They may do so by filing a motion to alter or amend the judgment under Rule 59(e) and they can appeal pursuant to 28 U.S.C. § 1291 (authorizing direct appeal of final decisions). See Fed. R. Civ. P. 59(e). They may also seek relief under Rule 60(b)(6)—the issue we address next.

IV.

Rule 60(b)(6) “grants federal courts broad authority to relieve a party from a final judgment upon such terms as are just.” Salazar ex rel Salazar v. District of Columbia, 633 F.3d 1110, 1116 (D.C. Cir. 2011) (quoting Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 863, 108 S.Ct. 2194, 100 L.Ed.2d 855 (1988)). To obtain relief under this provision, a .party must file its motion within a “reasonable time” and demonstrate “extraordinary circumstances justifying the reopening of a final judgment.” Id. (quoting Gonzalez v. Crosby, 545 U.S. 524, 534, 125 S.Ct. 2641, 162 L.Ed.2d 480 (2005)). In this case, the district court determined that RJR failed on both counts. We review its decision for abuse of discretion. Id. at 1119.

Although this circuit has rejected a strict limit to the reasonable time requirement, id. at 1118-19, we have held that in “a long-running institutional reform case ... it would be an abuse of discretion to' rule that a Rule 60(b)(6) motion is not filed within a reasonable time without finding that the movant’s delay has prejudiced the non-moving party,” id. at 1119. The district court made no such finding in this long-running, complex case. That, however, does not end the mattér, as the district court also denied the motion on the ground that the “circumstances presented in [RJR’s] Motion [were] not extraordinary.” Philip Morris, No. 99-2496, ECF No. 6147, at 3 (D.D.C. May 28, 2015); see also Salazar, 633 F.3d at 1122 (affirming the denial of a Rule 60(b)(6) motion for lack of “extraordinary circumstances” notwithstanding the district court’s failure to address prejudice).

“Extraordinary circumstances” is a high bar. We explained in Kramer v. Gates that Rule 60(b)(6) cannot be used “to rescue a litigant from strategic choices that later turn out to be improvident.” 481 F.3d 788, 792 (D.C. Cir. 2007) (quoting Good Luck Nursing Home, Inc. v. Harris, 636 F.2d 572, 577 (D.C. Cir. 1980)). As the district court in this case observed, RJR failed to raise the double-ad issue in its 2006 appeal of the remedial order. Moreover, when appealing the order specifying the text of the corrective statements, RJR chose not to challenge the double-ad requirement; instead it merely mentioned its Rule 60 motion in a footnote. Under our precedent, failure to raise a ripe issue precludes a finding of extraordinary circumstances unless that failure was essentially “involuntary.” Salazar, 633 F.3d at 1121 (quoting Twelve John Does v. District of Columbia, 841 F.2d 1133, 1141 (D.C. Cir. 1988)).

RJR believes it meets this standard. It argues that the earliest opportunity to challenge its successor obligations came in 2014 when, during the parties’ negotiations over how to disseminate the corrective ads, the government took the position that the injunction required RJR to run double ads. This argument suffers from a fatal flaw.

Recall that we have section 1292(a) jurisdiction because the district court denied RJR’s request to dissolve—rather than clarifyrr-part of the injunction. See supra Part II. Indeed, RJR conceded in its Rule 60 motion that the 2006 remedial order requires it to run two sets of ads. See Mot. for Relief, Philip Morris, No. 99-2496, ECF No. 6103, at 1 (D.D.C. June 11, 2014) (asserting that RJR, “in its capacity as successor to Brown and Williamson,” sought to dissolve “those provisions [of the remedial order] ... that require corrective statements on behalf of [Brown & Williamson] ... in addition to publication of the corrective statements by [RJR]”). Given the standard for appellate jurisdiction, supra Part II, this was a wise concession. But it undercuts RJR’s assertion that its remedial obligations were unclear until 2014 and undermines its argument for Rule 60(b)(6) relief. Simply put, RJR cannot have it both ways. Either the remedial order imposes a double-ad requirement, in which case we have appellate jurisdiction but RJR has no excuse for its untimeliness, or the order is unclear, in which case we would lack jurisdiction to entertain this appeal.

Having failed to challenge its successor obligation at any earlier stage of this litigation, RJR now finds itself trapped between this circuit’s narrow construction of section 1292(a), which prevents piecemeal appeals, and the high bar for Rule 60(b)(6) relief, which protects the finality of judgments. Together, these settled principles compel the conclusion that RJR’s challenge to the double-ad requirement comes too late.

V.

For the foregoing reasons, we affirm.

So ordered.


author: KAREN LeCRAFT HENDERSON, Circuit Judge:

text:
    Charles W. RAMSEY, Jr., Appellant v. UNITED STATES PAROLE COMMISSION, Appellee
    No. 15-5121
    United States Court of Appeals, District of Columbia Circuit.
    Argued September 22, 2016
    Decided November 4, 2016

      Beverly 6. Dyer, Assistant Federal Public Defender, argued the cause for the appellant. A. J. Kramer, Federal Public Defender, was with her on the briefs.
    Daniel J. Lenerz, Assistant • United States Attorney, argued the cause for the appellee. Elizabeth Trosman and John P. Mannarino, Assistant United States Attorneys, were with him on the brief.
    Before: HENDERSON and MILLETT, Circuit Judges, and SENTELLE, Senior Circuit Judge.
   KAREN LeCRAFT HENDERSON, Circuit Judge:

“The essence of parole is release from prison, before the completion of sentence, on the condition that the prisoner abide by certain rules during the balance of the sentence.” Morrissey v. Brewer, 408 U.S. 471, 477, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). But what if the parolee breaks the rules? More specifically, what happens if he commits a new offense? In the federal system, the United States Parole Commission (Commission) can revoke the offender’s parole and order that he serve all or some of the remaining sentence in prison. The Commission can also retrospectively deny him credit for the time he has served on parole—his “street time”—so that his remaining sentence is the same as it was when he was released on parole.

These general principles guide our resolution of Charles Ramsey’s appeal. In the 1970s, Ramsey was convicted of drug and firearm offenses for which he was sentenced to a total of 32 years in federal prison. In the 1980s, he was paroled and released from prison. In the 1990s, he violated the conditions of his parole by committing a new drug offense. He pleaded guilty to the 1990s offense pursuant to a plea agreement that said nothing about his past offenses, parole or street time. In this case, he filed a habeas corpus petition in which he argued that the plea agreement, as construed by the Southern District of West Virginia, terminated his. parole or at least prohibited the Commission from using his 1990s offense to deny him credit for street time or for other parole-related purposes. Unpersuaded, the district court denied his habeas petition. 82 F.Supp.3d 293 (D.D.C. 2015). We, too, reject his reading of the plea agreement and accordingly uphold the denial of his petition.

I. BACKGROUND

A. The Federal Parole System

The Congress abolished parole for federal offenders in 1984, effective November 1, 1987. Sentencing Reform Act of 1984, Pub. L. No. 98-473, §§ 218(a)(5), 235(a)(1), 98 Stat. 1987, 2027, 2031 (Oct. 12, 1984); Sentencing Reform Amendments Act of 1985, Pub. L. No. 99-217, § 4, 99 Stat. 1728, 1728 (Dec. 26, 1985); see Gozlon-Peretz v. United States, 498 U.S. 395, 400 n.4, 111 S.Ct. 840, 112 L.Ed.2d 919 (1991). Remnants linger, however, because repeal did not affect offenders convicted before November 1987. Sentencing Reform Act § 235(b)(1)(A), 98 Stat. at 2032. Chapter 311 of title 18 continues to govern parole for such offenders. 18 U.S.C. §§ 4201-4218; see United States Parole Commission Extension Act of 2013, Pub. L. No. 113-47, § 2, 127 Stat. 572, 572 (Oct. 81, 2013) (extending parole system through October 2018).

As relevant here, section 4203 gives the Commission the power to “grant or deny an application or recommendation to parole any eligible prisoner!,]” 18 'U.S.C. § 4203(b)(1), and to “modify or revoke an order paroling any eligible prisoner!,]” id. § 4203(b)(3). Section 4209 provides that, “[i]n every case, the Commission shall impose as conditions of parole .that the parolee not commit another Federal, State, or local crime [and] that the parolee not' possess illegal controlled substances_” Id. § 4209(a). Section 4210(b)(2) applies to an offender who, having been released on parole, is “convicted of any criminal offense ... punishable by a term of imprisonment, detention or incarceration in any penal facility—” Id. § 4210(b)(2). In such a case, “the Commission shall determine ... whether all or any part of the unexpired term being served at the time of parole shall run concurrently or consecutively with the sentence imposed for the new offense..-,,” Id. Section 4211 gives the Commission authority to grant “[e]arly termination of parole” but only “[u]pon its own motion or upon request of the parolee— ” Id. § 4211(a). Section 4213 provides that “[i]f any parolee is alleged to have violated his parole, the Commission may” summon him to appear at a revocation hearing or “issue a warrant and retake” him. Id. § 4213(a)(l)-(2). Section 4214(d) provides, that when a parolee is summoned or .retaken and the Commission finds that he has violated a condition of his parole, the Commission may “restore the parolee to supervision,” “reprimand” him, “modify” the conditions of his parole, “refer [him] to a residential community treatment center,” “release” him “as if on parole” or “formally revoke parole.” Id. § 4214(d).

The Commission’s regulations are codified in 28 C.F.R. Part 2. Section 2.20 establishes guidelines that “indicate the customary range of time to be served [in prison] before release for various combinations of offense (severity) and. offender (parole prognosis) characteristics.” 28 C.F.R. § 2.20(b). Section 2.20’s table of ranges is akin to the sentencing table of the United States Sentencing Guidelines. See U.S. SENTENCING COMM’N, U.S. SENTENCING Guidelines Manual ch. 5, pt. A (2015). The vertical axis in section 2.20 is divided into eight categories based on “Offense characteristics: Severity of offense behavior.” 28 C.F.R. § 2.20. The horizontal axis is divided into four categories based on “Offender characteristics: Parole prognosis,” also known as the offender’s “salient factor score.” Id. The shortest guideline range, stated in months, is “<4.” Id. The longest is “180 + .” Id. Pursuant to section 2.21, the guidelines in section 2.20 apply when the Commission considers reparoling an offender whose parole has been revoked. Id. § 2.21(b). Section 2.21 makes clear that the guidelines are just that: non-binding recommendations. Id. § 2.21(d) (“The above are merely guidelines. A decision outside these guidelines (either above or below) may be made when circumstances warrant.”).

Finally, section 2.52 governs the Commission’s “[rjevocation decisions.” Section 2.52(b) provides that, when the Commission revokes parole, it “shall also determine, on the basis of the revocation hearing, whether reparole is warranted or whether the prisoner should be continued for further review.” 28 C.F.R. § 2.52(b). Section 2.52(c) sets forth “the Commission’s interpretation of 18 U.S.C. 4210(b)(2).” Id. § 2.52(c)(2). The Commission’s interpretation is that

if a parolee has been convicted of a new offense committed subsequent to his release on parole, which is punishable by any term of imprisonment, detention, or incarceration in any penal facility, forfeiture of time from the date of such release to the date of execution of the warrant is an automatic statutory penalty, and such time shall not be credited to the service of the sentence.

B. Ramsey’s Parole

With the foregoing provisions in mind, we recap Ramsey’s odyssey through the parole system.

1. Ramsey’s 1970s offenses and 32-year sentence

In February 1975, Ramsey began serving a maximum aggregate prison sentence of 32 years for importation of a controlled substance, unlawful possession of firearms and related offenses of which he was convicted in three federal cases in the District of Columbia (D.C.) and the Southern District of New York. His 32-year term was to be followed by six years of “special parole,” the pre-Sentencing Reform Act equivalent of supervised release. 28 C.F.R. § 2.57(a) (describing special parole as “an additional period of supervision which commences upon completion of any period on parole or mandatory release supervision from the regular sentence”); see United States v. Todd, 287 F.3d 1160, 1161 (D.C. Cir. 2002).

In May 1989, Ramsey was released on parole with about 17 years and nine months left of his 32-year term. Consistent with 18 U.S.C. § 4209(a), one of the conditions of his parole provided in part: ‘You shall not violate any law.” United States’ Resp. to Def.’s Mot. to Amend or Correct Sentence, Dkt. No. 3, Ex. 3 at 3. Another condition prohibited him from possessing drugs. Id.

2. Ramsey’s 1995 cocaine offense and 2004 plea agreement

In November 1995, while on parole for the 1970s offenses, Ramsey was charged in D.C. district court with a new federal offense: possessing with intent to distribute cocaine. He was immediately detained pending trial. Based on the cocaine charge, the Commission issued a warrant alleging that Ramsey had violated his parole. The U.S. Marshals Service lodged the warrant as a detainer to be executed once he was released from custody on the cocaine charge. In May 1996, following a six-day trial, a jury convicted him of the cocaine offense. In an August 1996 presentence report (PSR), the United States Probation Office noted that Ramsey had been continuously detained for the cocaine offense since November 1995 and that, on completing his sentence for that offense, he would still be subject to a detainer for violating his parole on the 1970s offenses. In December 1997, the district court sentenced him to 210 months of imprisonment for the cocaine offense.

For nine years and one month, Ramsey was in prison for the 1995 cocaine offense. In 2004, the district court concluded that the lawyer who had represented Ramsey during the trial on the cocaine offense, had rendered ineffective assistance. United States v. Ramsey, 323 F.Supp.2d 27, 35-44 (D.D.C. 2004). The court ordered a new trial. Id. at 44.

Foregoing an appeal or retrial, the D.C. United States Attorney’s Office entered a plea agreement with.Ramsey. The agreement provided that Ramsey was to plead guilty to the cocaine offense and receive a prison sentence of time served, to be followed by eight years of supervised release. Plea Agreement ¶¶ 1, 6. Under paragraph 3 of the agreement, “[t]he parties agree[d] to accept” the PSR that had been prepared in August 1996. Paragraph 5 of the agreement provided:

The United States Attorney’s Office for the District of Columbia will not prosecute [Ramsey] for any other charges arising out of the transactions and events that are the subject of the [1995] indictment and this guilty plea.

And paragraph 6 stated in pertinent part:

Since the sentence is to be time served, the parties contemplate that [Ramsey] will be processed for release by the U.S. Marshals Service in the cell block of the U.S. Courthouse and will be released to commence his period of supervised release from there without being returned to. any other prison facility.

In December 2004, the district court accepted the plea agreement and sentenced Ramsey to time served for the cocaine offense (nine years and one month), to be followed by eight years of supervised release. But Ramsey was not released from custody. Instead, the U.S. Marshals Service executed the parole violator warrant the Commission had issued back in 1995. In other words, Ramsey remained in prison but was now serving time on his 32-year sentence for the 1970s offenses, not on his sentence for the 1995 offense.

3. The Commission’s 2005 decision to revoke parole and deny credit for street time

In February 2005, Ramsey appeared with counsel for a hearing on whether the Commission, in view of the 1995 cocaine offense, should revoke parole on his earlier 32-year sentence. So far as the record reflects, he did not argue that the plea agreement terminated his .parole or precluded revocation. Nor did he argue that the plea agreement prohibited the Commission from using his 1995 offense to deny him credit for his street time from May 1989 to November 1995.

In March 2005, the Commission indeed revoked Ramsey’s parole based on his 1995 cocaine offense. Partly because of the offense’s severity—it involved up to 44 kilograms of cocaine—he faced the highest possible guidelines range of 180+ months of reimprisonment under 28 C.F.R. §§ 2.20 and 2.21(b). Seeing no basis for a departure, the Commission ordered a re-imprisonment term within the range and set a presumptive reparóle date of October 21, 2014. Consistent with 28 C.F.R. § 2.52(c)(2), the Commission also denied Ramsey any credit for his street time from May 1989 to November 1995.

Later in March 2005, Ramsey appealed the decision to the Commission's National Appeals Board, again without invoking the plea agreement. The National Appeals Board affirmed the Commission’s decision.

4. The 2007 decision in Felts

In August 2006, while serving time on his 32-year sentence at a federal prison in West Virginia, Ramsey filed a petition for writ of habeas corpus under 28 U.S.C. § 2241 in the United States District Court for the Southern District of West Virginia. Ramsey v. Felts, 5:06-cv-00637, Dkt. No. 2 (S.D. W. Va. Aug. 16, 2006) (Felts). As relevant here, he claimed that the Commission was bound by the 2004 plea agreement and breached it by revoking parole and reincarcerating him based on his 1995 cocaine offense. Felts, Dkt. No. 3 at 10-11. In particular, he argued that the Commission violated paragraph 5, under which the D.C. United States Attorney’s Office agreed “not [to] prosecute [Ramsey] for any other charges arising out of the transactions and events that are the subject of the [1995] indictment and this guilty plea”; and paragraph 6, under which Ramsey was to “be released to commence his period of supervised release ... without being returned to any other prison facility.”

The case was referred to a magistrate judge who agreed that the Commission was in breach of the plea agreement and recommended that the district court grant Ramsey’s habeas petition. Felts, Dkt. No. 30 at 1, 24-25. The magistrate concluded that, taken together, “paragraphs 5 and 6 contain very significant promises to [Ramsey], the benefit of which he has not received.” Id. at 21. She acknowledged that the parties to the agreement apparently “never gave the Parole Commission a thought” and that paragraph 5 expressly bound only the D.C. United States Attorney’s Office. Id. at 23-24. Nonetheless she reasoned that paragraph 6, in promising that Ramsey would be released from his jail term for the 1995 cocaine offense without having to return to any prison facility, necessarily affected the Commission. Id. at 21-22. In the magistrate’s view, the tension between paragraphs 5 and 6 produced an ambiguity that had to be resolved in favor of release because (inter alia) the government wrote the agreement and bore “responsibility ... for imprecision,” id.-, Ramsey had relied on the promise of immediate release when he pleaded guilty, id. at 24-25; and the promise “ha[d] not been fulfilled,” calling into question the voluntariness of the plea and undermining “public confidence in the fair administration of justice,” id. at 24.

No one objected to the magistrate judge’s findings and recommendation. In August 2007, the district court in Felts adopted them and ordered that Ramsey “be immediately released” from prison so that he could “commence his period of supervised release” on the 1995 cocaine offense. Felts, Dkt. No. 31 at 3. The Commission immediately paroled him and indicated that he had about 15 years remaining on his initial 32-year sentence. Consistent with 18 U.S.C. § 4209(a), the Commission again imposed as a condition of parole that Ramsey not violate any law.

5. Ramsey’s 2010 gambling conviction

Ramsey ran into new legal trouble in April 2010, when he was convicted in D.C. Superior Court for “maintaining a gambling premises.” United States’ Resp. to Def.’s Mot. to Amend or Correct Sentence, Dkt. No. 3, Ex. 20 (capitalization altered). The Commission issued another parole violator warrant, this one based on the gambling offense. The U.S. Marshals Service executed the warrant upon Ramsey’s release from a short jail term for the gambling offense.

In September 2010, Ramsey appeared for a hearing on whether the Commission, in view of the gambling offense, should revoke parole on his earlier 32-year sen-

tence. In November 2010, the Commission in fact revoked his parole. Pursuant to the guidelines in 28 C.F.R. §§ 2.20 and 2.21(b), the Commission ordered that he spend another 12 months of the 32-year sentence in prison. The Commission’s decision was based in part on its calculation that Ramsey had a salient factor score of 2. The salient factor score, in turn, was based on Ramsey’s past offenses, including his 1995 cocaine offense. Finally, the Commission denied Ramsey any credit for his street time between August 2007 and April 2010, leaving him with about 15 years remaining on his initial 32-year sentence.

Ramsey served his -12 months of additional prison time and the Commission re-paroled him in April 2011. At that point he had about 14 years left to serve on his 32-year sentence. He has been on parole ever since and now has about eight and one-half years left: his anticipated completion date is July 16, 2025. After that, he must serve his six-year term of special parole.

6. The decision under review

In 2013, Ramsey filed a habeas petition in district court under 28 U.S.C. § 2241. He made two claims, the second of which had two components. First, he argued that the 2004 plea agreement, as interpreted in Felts, “authorized his release on supervised release alone” so that his parole was necessarily “terminated.” Pet’r’s Mot. to Amend or Correct Sentence, Dkt. No. 1 at 9-10. Second, he argued that the agreement at a minimum prohibited the Commission from using his 1995 cocaine offense (a) to deny him credit for street time in the 2005 parole revocation proceeding; and (b) to calculate his salient factor score in the 2010 parole revocation proceeding. In Ramsey’s telling, the plea agreement’s prohibition against “pro-secut[ing]” him on additional charges based on his 1995 conviction meant that the Commission could not use the conviction to “penalize” him in any way. Id. at 11. It followed, in his view, that he was entitled to a remand to the Commission for recalculation of his sentence.

The district court rejected Ramsey’s claims and denied his habeas petition. 82 F.Supp.3d 293 (D.D.C, 2015). First, the court concluded that the plea agreement and Felts “did not terminate ... [Ramsey’s] parole from the 1970s cases.” Id, at 304; see id. at 303-05. The court pointed out that the 1970s cases were neither “the subject of’ nor “referenced in” the 2004 plea agreement, which used the terms “ ‘case’ ” and “ ‘matter’ ” to refer solely to the 1995 cocaine case. Id. at 304 (citation omitted). In the court’s view, although the agreement promised that Ramsey was to ‘“be released to commence his period of supervised release ... without being returned to any other prison facility,’ ” neither that assurance nor the Felts decision “gave Mr. Ramsey license to commit new crimes without risking parole revocation and being sentenced to serve his back-up time.” Id. The court emphasized that Felts “held only that ... the Parole Commission could not require Mr. Ramsey to serve additional prison time as a parole violator based directly on his conviction in” the 1995 case. Id. at 305.

Second,, the district court concluded that nothing in the plea agreement, as construed in Felts, prevented the Commission from using the 1995 cocaine offense to deny Ramsey credit for street time or to calculate his salient factor score. 82 F.Supp.3d at 305-07. The court acknowledged that paragraph 5 of the agreement prohibited the D.C. United States Attorney’s Office from “prosecuting” him based on the 1995 conduct that was the subject of his guilty plea. Id. at 306-07. It reasoned, however, that paragraph 5 “did not bind” the Commission, let alone in a way that foreclosed it from even “taking the [cocaine] conviction into account when calculating” street time or Ramsey’s salient factor score. Id. at 307. Finally, the court emphasized that paragraph 6 of the agreement only “preclude[d] the' Commission from reincarcerating Ramsey as a parole violator” “based directly on” the cocaine offense. Id. at 305-06. In the court’s view, paragraph 6 did not displace “the applicable statutes, regulations, and case law” authorizing the Commission’s “actions with respect to Ramsey’s parole.” Id. at 306 (citing, inter alia, 18 U.S.C. § 4210(b)(2)).

II. ANALYSIS

On appeal, Ramsey renews essentially the same two claims he made in district court: (1) the plea agreement as construed in Felts terminated his parole or precluded revocation; or (2) at a minimum, it prohibited the Commission from using his 1995 cocaine offense to deny him credit for street time and to calculate his salient factor score. Our review is de novo. See United States v. Henry, 758 F.3d 427, 431 (D.C. Cir. 2014) (“We interpret the terms of a plea agreement de novo.... ”); cf. United States v. TDC Mgmt. Corp., 24 F.3d 292, 295 (D.C. Cir. 1994) (“[w]e review de novo” question of what issues were decided in prior case involving same parties). We reject Ramsey’s claims as set forth below.

A. The Plea AGREEMENT Did Not Terminate Parole or Preclude Revocation For Future Offenses.

According to Ramsey, the plea agreement terminated his parole or at least prohibited the Commission from revoking it. “[W]e look to principles of contract law” to determine “the reasonable understanding of the parties.” Henry, 758 F.3d at 431. The leading indicator of their understanding is the agreement’s “plain language.” See United States v. Jones, 58 F.3d 688, 691 (D.C. Cir. 1995). But there are additional indicators. General customs of which the parties are aware, as well as the parties’ conduct in carrying out the agreement, can aid in discerning what the parties meant by the words they used. Restatement (Second) of Contracts § 203(b) (1981) (“usage of trade” and “course of performance” are relevant to “interpretation of a promise or agreement”).

Applying those precepts to Ramsey’s case, we reject his interpretation of the- plea agreement. If he were light, the agreement would not only preclude revocation based on his 1995 cocaine offense but arguably would give him a free pass to commit new crimes—such as his 2010 gambling offense—without parole-related consequences. If that had been the parties’ intention, we would expect them to have said so specifically because the arrangement would contradict the laws that otherwise govern Ramsey’s parole. As we have discussed, the Congress required that parole “[i]n every case” be conditioned on the parolee’s “not commit[ting] another Federal, State, or local crime,” 18 U.S.C. § 4209(a), and it gave the Commission authority to revoke parole and reimprison the parolee for a violation, 18 U.S.C. § 4214(d). Parole would make little sense absent such a condition and without the Commission’s ability to enforce it through reincarceration or other punishment. Morrissey v. Brewer, 408 U.S. 471, 478-79, 92 S.Ct. 2598, 33 L.Ed.2d 484 (1972) (“The enforcement leverage that supports the parole conditions derives from the authority to return the parolee to prison to serve out the balance of his sentence if he fails to abide by the rules.”); Dovetailing with sections 4209 and 4214, section 4211 gives the Commission exclusive authority to grant “[e]arly termination of parole” “[u]pon its own motion or upon request of the parolee.” 18 U.S.C. § 4211(a).

It is questionable whether the D.C. United States Attorney’s Office, without the Commission’s authorization, had the legal authority to bargain around the foregoing statutes to terminate parole or forbid revocation. But we need not decide that issue. What matters here is that nothing suggests it meant to do so: the plea agreement said nothing about the Commission, parole, Ramsey’s 32-year sentence or the age-old offenses from which that sentence stemmed. It did not say his parole was terminated. And .it did not say the Commission was forbidden from revoking parole for offenses subsequent to Ramsey’s 1995 cocaine offense.

Ramsey emphasizes the plea agreement’s statement that he was not to “be[ ] returned to any other prison facility.” Plea Agreement ¶ 6. He reasons that the agreement thereby “prohibited incarceration,” leading him to believe that “it also prohibited revocation” based on any future offense because revocation would inevitably lead to incarceration. Appellant’s Br. 25. But the agreement governed only “United States v. Charles W. Ramsey, Cr. No. 95-0326(PLF),” Plea Agreement p. 1—and stated that “[tjhere are no other agreements, promises, understandings or undertakings between” the parties, id. ¶ 7—so it could not be construed to prohibit incarceration for all time and any offense. Instead, we read it to forbid any further incarceration based directly on the 1995 offense. Id. ¶ 6 (manifesting that, because prison term for 1995 offense was “to be time served,” parties contemplated that Ramsey would be released from that term “without being returned to any other prison facility”).

Undeterred, Ramsey contends that, because the plea agreement “ordered [his] release on supervised release .., with no mention of parole,” it did not “oontem-plate[ ] continuing parole.” Appellant’s Br. 25 (citing Plea Agreement ¶ 6). He gets things backwards. Under the governing statutes, the default was that Ramsey’s parole carried forward subject to revocation for a future violation. See Restatement (Second) op ■ CONTRACTS § 222(3) (“Unless otherwise agreed, a usage of trade ... of which [the parties] know or have reason to know gives meaning to ... their agreement.”) (emphasis added). The agreement’s bare statement about supervised release did not reflect any intent to displace the statutory default: far from ruling out parole, supervised release based on a new offense ordinarily runs concurrently with a preexisting parole term. 18 U.S.C. § 3624(e) (“The term of supervised release commences on the day the person is released from imprisonment and runs concurrently with any Federal, State, or local term of ... parole for another offense to which the person is subject....”).

Ramsey’s contemporaneous conduct reinforces our analysis, In February 2005— barely two months after he signed the plea agreement—he appeared with counsel for a hearing on whether the Commission should revoke his parole because of his 1995 cocaine offense. He did not argue, either to the Commission or to the National Appeals Board thereafter, that the plea agreement terminated his parole or precluded revocation resulting from any future offenses. If he had thought it did, he would have said so. See Restatement (Second) op CONTRACTS § 202(4) (“[A]ny course of performance accepted or acquiesced in without objection is given great weight in the interpretation of the agreement.”). •

Faced with dead ends in the statutes and the plea agreement, Ramsey turns to Felts but it does not aid him eithef. In Felts, the district court for the Southern District of West Virginia ordered Ramsey’s immediate release because he could not be required to serve any additional jail time for the 1995 cocaine offense. Crucial to Felts’s reasoning was that Ramsey had pleaded guilty in reliance on the prosecutor’s promises (1) against “any other charges arising out of’ the 1995 offense, Felts, Dkt. No. 30 at 23; and (2) that Ramsey was to be immediately “released to commence his period of supervised release” for the 1995 offense, id. at 14. Felts ensured that Ramsey received “the benefit of’ those promises so that his “bargain” was “not frustrated.” Id. at 21, 25.

Felts did not address, however, whether parole could later be revoked because of some future offense not even mentioned in the plea agreement. To the contrary, Felts acknowledged that, when drafting and signing the agreement, the parties “never gave the Parole Commission a thought.” Felts, Dkt. No. 30 at 23-24. That acknowledgment forecloses any contention that Felts construed the agreement to terminate parole or precluded revocation for all time and any offense.

B. The Plea Agreement Did Not Prohibit Using Ramsey’s 1995 Offense To Deny Credit For Street Time Or To Calculate His Salient Factor Score.

Alternatively, Ramsey urges that the plea agreement prohibited the Commission from using his 1995 cocaine offense (a) in the 2005 revocation proceeding to deny him credit for street time from May 1989 through November 1995; and (b) in the 2010 revocation proceeding to calculate his salient factor score. Both components of his contention are meritless.

Ramsey relies heavily on paragraph 5 of the plea agreement. To repeat, paragraph 5 stated that “[t]he United States Attorney’s Office for the District of Columbia will not prosecute [Ramsey] for any other charges arising out of’ the 1995 cocaine offense. As an initial matter, Ramsey suggests that Felts interpreted paragraph 5 to bind the Commission, not simply the D.C. United States Attorney’s Office. That construction is far from clear: Felts acknowledged that “paragraph five identified the only prosecutorial agency bound not to prosecute [Ramsey],” namely, “the ‘Office of the United States Attorney for the District of Columbia.’ ” Felts, Dkt. No. 30 at 23. But even assuming paragraph 5 bound the Commission, a prohibition against “prosecuting]” Ramsey for additional “charges” based on his 1995 conduct would not prevent the Commission from using the conduct to deny him credit for street time or to calculate his salient factor score. Nothing in the plea agreement suggests that the parties meant for the words “prosecute” and “charges” to have anything other than their ordinary meaning. And in the criminal context, the ordinary meaning of “prosecute” is “[t]o institute and pursue a criminal action.... ” Black’s Law DictionaRy 1416 (10th ed. 2014). Similarly, a “charge” ordinarily connotes “[a] formal accusation of an offense as a preliminary step to prosecution_” Id. at 282. Denying credit for street time and calculating a parolee’s salient factor score do not institute a criminal action. Indeed, the Supreme Court has long held that “revocation of parole is not part of a criminal prosecution....” Morrissey, 408 U.S. at 480, 92 S.Ct. 2593. A fortiori, we cannot conclude that parole-related measures short of revocation are tantamount to “prosecution.”

We recognize, as Felts did, that paragraph 6 of the plea agreement—promising that Ramsey was to be released from his jail term for the 1995 cocaine offense “without being returned to any other prison facility”—could be read to prohibit the Commission from reincarcerating Ramsey based directly on his 1995 conduct. In our view, however, that promise did not foreclose forfeiture of street time, especially because the -agreement did not mention 18 U.S.C. § 4210(b)(2) or 28 - C.F.R. § 2.52(c)(2). As noted, section 4210(b)(2) provides that “the Commission shall determine ... whether all or any part of the unexpired term being served at the time of parole shall run concurrently or consecutively with the sentence imposed for the new offense — ” And in section 2.52(c)(2), the Commission ’“interpret[ed]” section 4210(b)(2) to require forfeiture of street time as “an automatic statutory penalty.” If the parties had meant to displace the “automatic statutory penalty” by virtue of the plea agreement—assuming that would even be possible—presumably they would have done so more explicitly than paragraph 6 did. At least they would have mentioned the concept of street time; that it appears nowhere in the agreement shows that the parties reached no understanding about it. As if to confirm the point, Ramsey did not invoke the agreement at the February 2005 revocation hearing or before the National Appeals Board in an effort to preserve his street time. See Restatement (SeCOnd) of CONTRACTS § 202(4).

Finally, paragraph 6 did not prohibit the Commission from using Ramsey’s 1995 cocaine offense to calculate his salient factor score in 2010. The Commission used the score to weigh the likelihood that he would violate his parole on the 1970s offenses. See 28 C.F.R. § 2.20(e) (“An evaluation sheet containing a ‘salient factor score’ serves as an aid in determining the parole prognosis (potential risk of parole violation).”). The Commission did not use the score to punish him directly for his 1995 offense. Cf. Witte v. United States, 515 U.S. 389, 400, 115 S.Ct. 2199, 132 L.Ed.2d 351 (1995) (use of past conviction at sentencing for new offense “is not to be viewed as either a new jeopardy or additional penalty for the earlier crime[ ], but instead as a stiffened penalty for the latest crime, which is considered to be an aggravated offense”) (internal quotation marks omitted).

Nothing in the 2004 plea agreement or in Felts terminated Ramsey’s parole, precluded revocation for future offenses or prohibited the Commission from using his 1995 cocaine offense to deny him credit for street time or to calculate his salient factor score. We therefore affirm the judgment of the district court denying Ramsey’s petition for a writ of habeas corpus.

So ordered.

      . The plea agreement is not on the district court's electronic docket but is available in Ramsey v. Felts, 5:06-cv-00637, Dkt. No. 3, Ex. 12 (S.D. W. Va. Aug. 16, 2006).

      . Ramsey filed his habeas petition in the D.C. district court, naming the Commission as the respondent. The district court had subject-matter jurisdiction because Ramsey, as a parolee, remains "in custody” within the meaning of section 2241 even though he is not in prison. Jones v. Cunningham, 371 U.S. 236, 243, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963) (restraints on parolee’s liberty "are enough to invoke the help of the Great Writ” even absent "immediate physical imprisonment”); see 18 U.S.C. § 4210(a) ("A parolee shall remain in the legal custody and under the control of the Attorney General, until the expiration of the maximum term or terms for which such parolee was sentenced.”); see also United States ex rel. New v. Rumsfeld, 448 F.3d 403, 406 (D.C. Cir. 2006) (“in custody” requirement of section 2241 goes to subject-matter jurisdiction). We need not decide whether the Commission is a proper respondent, or the D.C. district court a proper venue, because the Commission “raised no objections on grounds of venue or personal jurisdiction.” Fletcher v. Reilly, 433 F.3d 867, 875 (D.C. Cir. 2006); see Chatman-Bey v. Thornburgh, 864 F.2d 804, 813 (D.C. Cir. 1988) ("It is, of course, elementary that a defense of improper venue or lack of personal (as opposed to subject matter) jurisdiction is waived unless the defense is asserted....”).

      . The closest the agreement came to discussing parole was paragraph 3, under which "[t]he parties agree[d] to accept” the August 1996 PSR. The PSR noted that, on completing his sentence for the 1995 cocaine offense, Ramsey was still subject to a detainer for violating his parole. Oral Arg. Recording 5:40-5:57, 11:35-11:49, 19:43-20:35. The PSR thus confirmed that Ramsey had time left to serve on his 32-year sentence. Neither the PSR nor the “agree[ment] to. accept” it suggested the parties had agreed to terminate parole or to forbid revocation forevermore.

      . The Commission makes the additional point that revocation need not lead to imprisonment. Appellee’s Br. 24. We assume without deciding that the latter does not always follow the former. See 28 C.F.R. § 2.52(b) (after revoking parole, Commission must determine "whether reparole is warranted”); 28 C.F.R. §§ 2.20 and 2.21(b) (prescribing advisory re-imprisonment ranges as short as "<4,” which suggests possibility of no reimprisonment). Even so, that would not heavily bear on the parties’ understanding of the plea agreement in this case: Ramsey's offense history all but guaranteed that he faced imprisonment in the event of revocation based on a new offense. The Commission's decision to reimprison him for 12 months based on a minor gambling offense illustrates as much.

      . Ramsey advances additional arguments that the Commission miscalculated his parole but they turn entirely on the proposition—which we today reject—that the Commission could not revoke parole or use the 1995 cocaine offense to deny credit for street time.

      . As Ramsey notes in passing, the Ninth Circuit has held that section 2.52(c)(2) contravenes section 4210(b)(2). Rizzo v. Armstrong, 921 F.2d 855, 859-61 (9th Cir. 1990). He does not mention, however, that at least three other circuits have concluded otherwise. See Edwards v. Dewalt, 681 F.3d 780, 786-87 (6th Cir. 2012); Harris v. Day, 649 F.2d 755, 759-60 (10th Cir. 1981); United States ex reí. Del Genio v. Bureau of Prisons, 644 F.2d 585, 587-88 (7th Cir. 1980). We need not weigh in on the conflict, for two reasons. First, nothing suggests the parties here agreed that Ramsey was to be exempt from section 2.52(c)(2). Second, Ramsey has not properly preserved a claim that section 2.52(c)(2) conflicts with the statute. He did not make the claim in his habeas petition, Instead, he advanced it for the first time in an oblique one-sentence footnote in a reply supporting his petition. Unsurprisingly, the district court did not address it. We agree with several other courts that, ordinarily, a habeas petitioner does not preserve a claim by raising it for the first time in a reply. See Tyler v. Mitchell, 416 F.3d 500, 504 (6th Cir. 2005) (holding as much and citing additional cases from First, Seventh and Ninth Circuits). Moreover, even if Ramsey had preserved the claim in district court, his perfunctory appellate briefing does not suffice to raise it in this Court. See Ry. Labor Execs. Assn v. U.S. R.R. Ret. Bd., 749 F.2d 856, 859 n.6 (D.C. Cir. 1984).


author: PER CURIAM.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Andre WILLIAMS, Defendant-Appellant.
    No. 16-1913
    United States Court of Appeals, Seventh Circuit.
    Submitted August 30, 2016
    Decided September 6, 2016 *
    Madeleine S. Murphy, Attorney, Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.
    Andre Williams, Pro Se.
    Before WOOD, Chief Judge, and POSNER and EASTERBROOK, Circuit Judges.
   PER CURIAM.

Andre Williams, who has 14 years left to serve in prison (his release is scheduled for 2030, if he earns and retains all good-time credits), asked the district court to revise some conditions that will apply to supervised release once his time in prison ends. The district court declined, deeming the application premature.

District judges have the authority to revise terms of supervised release “at any time” (18 U.S.C. § 3583(e)(2)). Williams maintains that, because a judge may act at any time, the judge must act whenever requested to do so. The district judge thought otherwise, observing that, in the 14 years between now and Williams’s scheduled release, “he may have totally other issues that he might want to deal with regarding supervised release.” The judge might have added that the governing law (including controlling decisions of this court) may change between now and then.

If the district judge had proposed to defer decision until Williams was actually out of prison, we would be inclined to think that a mistake. Williams is entitled to know, before he leaves prison, what terms and conditions govern his supervised release. We would be reluctant to allow a judge to deem premature a request in the final year or two of imprisonment. But treating a request 14 years in advance as premature, and requiring the prisoner to make all potential arguments at one time in the year or so before release, is a sound exercise of discretion.

On that understanding, the judgment is affirmed.

       The court initially resolved this appeal by non-precedential order. The order is being reissued as an opinion.


author: POSNER, Circuit Judge.

text:
    Scott WELDON, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
    No. 15-1994
    United States Court of Appeals, Seventh Circuit.
    Argued August 9, 2016
    Decided August 24, 2016

      Jerry D. Brown, Attorney, Siegel & Callahan, P.C., Chicago, IL, for Petitioner-Appellant.
    Robert L. Garrison, Attorney, Office of the United States. Attorney, Criminal Division, Fairview Heights, IL, for - Respondent-Appellee.
    Before BAUER, POSNER, and SYKES, Circuit Judges.
   POSNER, Circuit Judge.

The defendant pleaded guilty to having distributed an illegal drug, resulting in a death. See 21 U.S.C. §§ 841(a)(1), (b)(1)(C). Bécaúse he agreed to cooperate with the government in the prosecution of another person who had contributed to the death, he received a prison sentence of only eight years. Three years later he filed a motion to vacate his conviction and sentence on the principal ground (and the only we need discuss) that his lawyer had rendered ineffective assistance by persuading him to plead guilty because (according to the lawyer), the defendant had no possible defense. The district judge denied the motion, precipitating this appeal.

The facts giving rise to the defendant’s prosecution and conviction are as follows. Defendant Weldon, his girlfriend Andrea Fields, and their friend David Roth pooled $120 (Roth contributing $100 and Weldon and Fields $20 jointly) to buy heroin from Weldon’s drug dealer. The three drove in Roth’s car (Roth driving) to meet the dealer. Roth parked behind the dealer’s car at the arranged meeting place and Weldon got out of Roth’s car, walked to the dealer’s car, gave the dealer the $120 for the heroin, and returned with it to Roth’s car. Weldon gave the heroin, which was wrapped in a dollar bill, to Fields, who tucked it away. Roth then drove to his home, where Fields mixed the heroin with water, divided the mixture into three equal parts, and injected it into the three of them. Roth died from the mixture injected into him. Fields was tried for her role in Roth’s death, but argued that what she did in injecting Roth was not distribution, and she was acquitted..

Suppose you have lunch with a friend, order two hamburgers, and when your hamburgers are ready you pick them up at the food counter and bring them back to the table and he eats one and you eat the other. It would be very odd to describe what you had done as “distributing” the food to him. It is similarly odd to describe what either Weldon or Fields did as distribution. They had agreed to get high together, they shared the expense, they all went together to the drug dealer, and they shared the drug that they bought from him. It’s true that only Weldon transferred the money for the drug to the dealer, but it was the pooled money that he was handing over, although his contribution to the pool had been slight. It’s true that having paid he carried the drug back to Roth’s car. But it would have been absurd for all three to have gone up to the dealer and each pay him separately, and even more absurd for them to have carried the minute package, containing less than half a gram of powder, together to the car and from the car to Roth’s residence. And remember that a jury rejected the argument that Fields’ injecting Roth with the heroin (which metabolized to morphine after it was injected) was the distribution of the heroin-morphine to. Roth.

United States v. Swiderski, 548 F.2d 445, 450 (2d Cir. 1977), holds that individuals who “simultaneously and jointly acquire possession of a drug for their own use, intending only to share it together,” are not distributors, “since both acquire possession from the outset and neither intends to distribute the drug to a third person,” and so “neither serves as a link in the chain of distribution.” This reasoning has been approved in several cases, see United States v. Layne, 192 F.3d 556, 569 (6th Cir. 1999); United States v. Hardy, 895 F.2d 1381, 1334-35 (11th Cir. 1990); United States v. Rush, 738 F.2d 497, 514 (1st Cir. 1984); cf. United States v. Mancuso, 718 F.3d 780, 798 and n. 10 (9th Cir. 2013), though our court has had no occasion to opine on it.

The government argues (with no judicial support) that the holding of Swiderski is inapplicable to this case because “Weldon was the only one of the three to get out of Roth’s car and conduct a hand-to-hand exchange of money for heroin with the dealer.” The implication is that the rule of Swiderski requires absurd behavior. Imagine Weldon, Roth, and Fields squeezing into the dealer’s car and each handing the dealer a separate handful of money. What on earth would the dealer think of such antics? How would he react? What would he do? If he gave them the drug would they have to divide it on the spot in order to avoid being guilty of distribution?

What .matters is that the defendants were participants in the same transaction. No cases require literal simultaneous possession; Smderski and another decision (very like the present case) implicitly reject such a requirement. United States v. Swiderski, supra, 548 F,2d at 448; United States v. Speer, 30 F.3d 605, 608-09 (5th Cir. 1994). Given these decisions, the insistence of Weldon’s lawyer to his client “umpteen times” that a defense to the charge of distribution had a zero chance of success was constitutionally deficient.

It’s true that to be entitled to a new trial Weldon has to establish “a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial,” Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985), an insistence that might have persuaded the government to negotiate a settlement with him that would (without the uncertainty-.of a trial) have reduced'his punishment significantly. See Missouri v. Frye, — U.S.-, 132 S.Ct. 1399, 1409, 182 L.Ed.2d 379 (2012); Kovacs v. United States, 744 F.3d 44, 53 (2d Cir. 2014). Weldon is entitled to an evidentiary hearing to determine that probability. The judgment of the district court is therefore vacated and the ease remanded for further proceedings consistent with this opinion. (The government has filed a motion to supplement the record on appeal, but we deny the motion; it is better for the district court to have the full record before it on remand.)

■ Vacated and Remanded