United States Court of Appeals, Fifth Circuit.
ALBERTO OVALLE, Plaintiff—Appellant,
UNITED RENTALS NORTH AMERICA, INCORPORATED, Defendant—Appellee.
Appeal from the United States District Court for the Northern District of Texas USDC No. 2:18-CV-211
Before SMITH, WIENER, and SOUTHWICK, Circuit Judges.
Alberto Ovalle, a mechanic, brought various negligence claims against his employer after he slipped and fell on rainwater that seeped into his work bay. The district court granted his employer summary judgment on all claims. We AFFIRM.
FACTUAL AND PROCEDURAL BACKGROUND
Alberto Ovalle worked as a mechanic for United Rentals North America, Inc. in its Canyon, Texas, facility. He was assigned to two work bays and was the only field technician who worked in those areas. To enter the work bays, Ovalle had two entrance options — a door near the front office or a side door that opened directly into the work bay. The side door entrance did not have a light switch near the door. When entering that way, Ovalle needed to follow yellow tape on the floor to reach the other side of the work bay to switch on the light.
We rely on Ovalle’s evidence for our factual recitation. Over a ten-month period, Ovalle observed on two occasions that water pooled on the floor of the work bay when it was raining. Ovalle used a squeegee, a mop, and cleaning products to clear the water out of the work bay in those instances. He also informed Art Silva, whom he considered his supervisor, that water sometimes pooled in the bay.
On March 28, 2017, Ovalle entered his work bay as usual through the side door. It was raining. He took nine steps into the work bay, toward the light switch, and then slipped on rainwater that had seeped into the work bay. Without the light on, it was too dark for Ovalle to see the rain puddle. He also was unable to follow the yellow tape because equipment was in his pathway. He got up from the ground and felt a sharp pain. Ovalle eventually turned on the light but still felt pain, so he reported the incident to the United Rentals branch manager.
In November 2018, Ovalle sued United Rentals in the United States District Court for the Northern District of Texas. Asserting diversity jurisdiction, he brought the following negligence claims:
 failing to furnish a reasonably safe place to work;  failing to warn Plaintiff of hazards of his employment not commonly known or already appreciated;  failing to properly supervise, monitor, and train its employees regarding the proper manner in which to inspect and make the premises reasonably safe;  failing to furnish reasonably safe instrumentalities with which to work;  failing to provide or enforce safety policies and regulations regarding safe, adequate lighting and preventing slips from liquids on the floor;  failing to adequately warn of or make safe dangers or conditions of which Defendant had actual or constructive knowledge;  failing to reasonably inspect the premises for concealed, unreasonably dangerous conditions and failing to warn of or make safe such conditions;  failing to keep the premises in a reasonably safe condition;  failing to use ordinary care as a reasonable person would under the same or similar circumstances; and  such additional acts of negligence, which will be established as the case progresses.
United Rentals moved for summary judgment on all claims. On July 16, 2021, the district court granted the motion and dismissed the suit. Ovalle timely appealed after the district court denied reconsideration.
We review a grant of summary judgment de novo. Molina v. Home Depot USA, Inc., 20 F.4th 166, 168 (5th Cir. 2021). Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). A genuine dispute of material fact exists “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The court must view all facts and inferences “in the light most favorable to the nonmoving party.” Valderas v. City of Lubbock, 937 F.3d 384, 388 (5th Cir. 2019). The court may not make credibility determinations or weigh the evidence when deciding whether a dispute of material fact exists. Sport Supply Grp., Inc. v. Columbia Cas. Co., 335 F.3d 453, 456 (5th Cir. 2003).
Ovalle first disputes the district court’s classification of his failure-to-warn claim under Texas law. The court held that his claim against United Rentals for failure to warn him of the dangerous condition in the work bay was solely a premises-liability claim, not a premises-liability claim and a workplace-safety claim. That matters, Ovalle argues, because the court should have held that United Rentals had a workplace-safety duty to warn of the water in the work bay.
Under Texas law, an employee may bring the following negligence claims against an employer: (1) negligent-activity claims; (2) premises-liability claims; and (3) workplace-safety claims. See Austin v. Kroger Tex., L.P., 465 S.W.3d 193 (Tex. 2015). A plaintiff may not pursue both a negligent-activity and a premises-liability theory of recovery for a single injury that is based on a premises condition unless there is some ongoing activity that caused the plaintiff’s injury in addition to the premises condition. See Keetch v. Kroger Co., 845 S.W.2d 262, 264; see also Austin, 465 S.W.3d at 215 (discussing difference between premises-liability and negligent-activity theories).
Ovalle does not make a claim based on negligent activity. Thus, for Ovalle to succeed on his premises-liability claim, he must show evidence that his employer “fail[ed] to take measures to make the property safe.” Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 776 (Tex. 2010). Claims will be viewed in their true character regardless of how a plaintiff categorizes them. United Scaffolding, Inc. v. Levine, 537 S.W.3d 463, 480 (Tex. 2017).
Workplace-safety claims may be brought alongside premises-liability claims. Austin, 465 S.W.3d at 215–17. A workplace-safety theory of negligence is applicable when the employer-employee relationship gives rise to additional duties such as “provid[ing] necessary equipment, training, or supervision.” Id. The two negligence theories may coincide because the different relationships — landowner-invitee and employer-employee — create two different proximate causes and therefore require two different negligence theories to allow sufficient recovery. Id. at 216–17.
For example, an employee was allowed to pursue claims under both premises-liability and workplace-safety theories for an injury he sustained after he slipped and fell on a spill he was required to clean up without being provided the proper tools. Id. at 216.
The fact that [the plaintiff] alleged that a condition of the premises proximately caused his injury does not preclude his allegation that [the employer’s] negligent failure to provide the [s]pill [cleanup] system also caused his injury. If the only relationship between [the plaintiff] and [the employer] were that of landowner-invitee, the alleged facts could only give rise to a premises-liability claim.
We examine whether Ovalle has viable premises-liability or workplace-safety claims.
I. Premises-liability claims
An employer’s and a landowner’s duties to warn are coextensive: “While an employer’s liability may differ from that of other landowners[,] ... its premises-liability duty is the same as that owed by landowners to invitees generally.” Id. at 202. That duty requires that employers maintain the relevant premises “in a reasonably safe condition.” Id. at 217. That duty can be satisfied “by providing an adequate warning of concealed dangers of which they are or should be aware but which are not known to the employee.” Id. Where a dangerous condition is “open and obvious or known to the invitee,” the landowner has no duty, because the landowner is not in any better position to discover the danger than the invitee. Id. at 203. This is true regardless of whether the landowner is an employer. Id. at 217.
Ovalle admitted he observed water pooling in the work bay when it rained on two prior occasions. He also knew the condition was dangerous, because he reported it to Silva. The district court concluded his awareness relieves United Rentals of any duty to warn Ovalle of the water under either a premises-liability or workplace-safety negligence theory. See Austin, 465 S.W.3d at 203. That was error, Ovalle argues, because Texas law recognizes a necessary-use exception. “[L]andowners have no duty to protect or warn such persons when they are aware of the risks and could have avoided them.” Id. at 208 (emphasis added). Consequently, even when an invitee is aware of the relevant risk, if “the landowner should have anticipated that the invitee is unable to take measures to avoid the risk,” then the duty to make the premises safe remains. Id.
This theory of liability depends on the invitee’s ability to avoid the known risk. The record shows Ovalle had access to a different door which would have allowed him to turn on the light before encountering the water. Indeed, during his deposition he agreed that “if [he] wanted to, [he was] allowed to walk through the front door of the United Rentals facility.”
Ovalle responds that a fact issue still prevents summary judgment. In his deposition, Ovalle explained he was told to enter the side door and, indeed, had exclusively used the side door. The district court rejected this testimony, finding it constituted the equivalent of a “sham affidavit.” That finding was based on events during the deposition. Ovalle first stated in response to his own counsel’s questioning that “[s]ometimes I would” use the front entrance but “[m]ost of the time” used the side door. Counsel repeatedly asked about which door he used. Finally, opposing counsel objected, saying the question about what door was used had been asked “like five times.” Almost immediately after the objection, Ovalle’s counsel asked for a restroom break. After the break, Ovalle again answered the question about the doors he used by saying he “always” used the side door and that it was the door he was “authorized” to use. The district court considered the events of the deposition to confirm that a dispute of fact was “manufacture[d]” and the dispute could be ignored by the court.
The sham-affidavit doctrine applies when a plaintiff introduces an affidavit that conflicts with earlier testimony, such as in a deposition. S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 495-96 (5th Cir. 1996). A district court may refuse to consider such an affidavit if the statements made in the affidavit “are so markedly inconsistent with a prior statement as to constitute an obvious sham.” Winzer v. Kaufman Cnty., 916 F.3d 464, 472 (5th Cir. 2019) (quotation marks and citation omitted).
We have not discovered caselaw applying the sham-affidavit concept to an internal inconsistency within a single deposition testimony. Ovalle’s contradiction is distinguishable from the kind ordinarily at issue in sham-affidavit cases. See Seigler v. Wal-Mart Stores Tex., L.L.C., 30 F.4th 472, 477 (5th Cir. 2022) (describing the issue as inconsistency with “prior testimony” (emphasis added)). Instead of contradicting himself after an initial testimony, he contradicted himself within the same testimony. Generally, inconsistency within the same testimony would be an issue of credibility for the trier of fact. See Dibidale of La., Inc. v. Am. Bank & Tr. Co., 916 F.2d 300, 307–08 (5th Cir. 1990). The one special feature here is that the inconsistency arose after counsel had an opportunity, but we do not know if it was used, to redirect the witness’s answers.
We see no need to decide whether what occurred here fits within the reach of caselaw about sham affidavits. That is because Ovalle’s deposition testimony did not meaningfully contradict or raise uncertainty as to whether he had access to the front door. He conceded in his deposition that, if he wanted to, he could have used that door. Therefore, it did not matter if he decided actually to use the side entrance every day or only sometimes. The necessary-use exception is inapplicable.
Another one of Ovalle’s arguments is based on the Texas Workers’ Compensation Act (“TWCA”). Subscribing to the TWCA is optional for employers. TEX. LAB. CODE § 406.033(a). If an employer does not subscribe, i.e., have workers’ compensation insurance, and United Rentals did not, then there are certain defenses the employer may not raise when litigating an employee’s negligence claim. Id. One of them is contributory negligence. Id. Regardless, “the employee [will still have] the burden of proving that the employer owed a duty.” Austin, 465 S.W. at 200.
Ovalle’s awareness of the risk is relevant to the existence of United Rentals’ duty to warn. It is not a question of Ovalle’s liability or possible negligence in the fall. See Austin, 465 S.W.3d at 202–03. Because “the TWCA’s wavier of a nonsubscriber’s defenses ... has no bearing on our analysis of an employer’s duty,” it is proper to consider Ovalle’s awareness of the risk to evaluate whether United Rentals had a duty to warn Ovalle of the water at all. Id. at 202. The grant of summary judgment here is thus consistent with United Rentals’ non-subscriber status under the TWCA, and no genuine issues of fact remain as to Ovalle’s premise liability claims.
There was no error in the grant of summary judgment on the claims based on premises liability.
II. Workplace-safety claims
We also examine Ovalle’s claims brought under the workplace-safety negligence theory. He does not dispute the district court’s classification of these remaining claims — that United Rentals failed to provide him with the necessary instrumentalities, training, supervision, and safety policies to perform his job safely — as falling under a workplace-safety theory. Instead, he challenges the district court’s conclusion that no genuine issue of material fact remains on these claims.
We begin with his claim that United Rentals failed to provide the necessary instrumentalities for Ovalle to perform his job safely. See Kroger v. Elwood, 197 S.W.3d 793, 794 (Tex. 2006). In Texas, an employer has a duty to provide necessary instrumentalities but not those that would be unnecessary for safe performance. Id. at 794–95. The employer also owes no duty where the employee is “doing the same character of work that he has always done” when there is no evidence that the work poses a threat of injury. Werner v. Colwell, 909 S.W.2d 866, 869 (Tex. 1995).
Ovalle had all the equipment necessary to address the risks of water seepage. He had access to the front door to avoid the rainwater he knew pooled in the work bay. He had cleaning supplies for spills he used successfully on multiple occasions. There was no need for United Rentals to provide more, because additional instrumentalities would be unnecessary for a safe job performance. See Molina, 20 F.4th at 169–70. For example, in Elwood, an employee was injured when a customer shut a car door on his hand while he was unloading groceries. Elwood, 197 S.W.3d at 794. The court held the employer had no duty to provide carts with wheel locks or additional personnel to assist because there was no evidence those extra measures would aid in the safe unloading of groceries. Id. at 795. Here, too, Ovalle has shown no evidence that additional instrumentalities were needed for him to enter the work bay and perform his job as a mechanic.
Moreover, Ovalle entered the work bay every day for ten months. Entering the work bay was neither an unusual task nor one that posed a threat of injury — he was “performing the same character of work” he and other mechanics would have always done, namely entering a work bay and being aware of possible hazards. See Austin, 465 S.W.3d at 214 (quoting Elwood, 197 S.W.3d at 795). United Rentals did not breach its duty to provide additional instrumentalities to Ovalle.
Ovalle also alleges that United Rentals failed to provide sufficient training, supervision, and safety policies regarding water hazards. On Ovalle’s failure-to-train claim, he alleges United Rentals failed to provide adequate training to handle the hazardous condition. “An employer is not an insurer of its employees’ safety at work,” but “an employer [still has] a duty to use ordinary care in providing a safe workplace.” Leitch v. Hornsby, 935 S.W.2d 114, 117 (Tex. 1996). Where an employee’s task does not require specialized training or is performed regularly without any special training or assistance, the employer does not have the duty to provide additional training. See Elwood, 197 S.W.3d at 794–95. Texas courts have held that “an employer has no duty to adopt safety rules where its business is neither complex nor hazardous or where the dangers incident to the work are obvious or are of common knowledge and fully understood by the employee.” National Convenience Stores Inc. v. Matherne, 987 S.W.2d 145, 149 (Tex. App. — Houston [14th Dist.] 1999, no pet.); accord Patino v. Complete Tire, Inc., 158 S.W.3d 655, 660 (Tex. App. — Dallas 2005, pet. denied).
United Rentals did not have a duty to provide training in addition to what it already provided for Ovalle to enter the work bay safely. He was a 25-year experienced mechanic. He did not need specialized training to know how to enter the work bay in order to avoid slipping on water. Texas courts have held that “an employer’s duty to instruct applies to an inexperienced employee, but not to one who is experienced in the work he is assigned.” Patino, 158 S.W.3d at 661. The task of entering the work bay also does not require specialized training and therefore does not show any need for further training. See Elwood, 197 S.W.3d at 794–95 (explaining that employee who alleged employer provided inadequate training did not succeed, because his job was neither dangerous nor specialized). Ovalle also was aware of the condition of the work bay because he reported it to Silva. The danger was commonly known and open and obvious, eliminating any need for additional instruction. See National Convenience Stores Inc., 987 S.W.2d at 149. United Rentals therefore did not breach its duty to provide adequate training to Ovalle.
Ovalle also argues the district court erred in granting summary judgment on his claim for negligent supervision, because there was a “complete lack of supervision” and “oversight” over the building. He argues Silva was insufficiently trained because he was not supervising the building and also did not report the water as a dangerous condition. “To establish a claim for negligent supervision, a plaintiff must show that an employer’s failure to supervise its employees caused his injuries.” Dangerfield v. Ormsby, 264 S.W.3d 904, 913 (Tex. App. — Fort Worth 2008, no pet.).
Even though Ovalle couches this allegation as a workplace-safety claim of negligent supervision, his allegation that there was negligent supervision over the building sounds in the duty of a landowner or employer to warn of a dangerous condition. See Austin, 465 S.W.3d at 217 (explaining employer and landowner must maintain premises in a reasonably safe condition). “Creative pleading does not change the nature of a claim.” Sampson v. Univ. of Tex. at Austin, 500 S.W.3d 380, 386 (Tex. 2016). When his negligent-supervision claim is considered as its true nature — that is, a failure-to-warn of a premises-condition claim — this claim also fails for the reasons discussed earlier that Ovalle’s awareness of the spill relieves United Rentals of its duty to warn Ovalle of the water.
Ovalle finally claims that United Rentals should have adopted additional safety policies to prevent his injury. Similar to his failure-to-train claim, in Texas, an employer “has no duty to adopt safety rules where its business is neither complex nor hazardous or where the dangers ... are obvious to the employee.” See National Convenience Stores Inc., 987 S.W.2d at 149. Again, Ovalle was not engaged in a complex or hazardous activity when entering the work bay, considering he had an alternative front entrance and cleaning supplies, and importantly, he was aware rainwater pooled in the work bay.
The district court did not err in granting summary judgment on Ovalle’s workplace-safety claims.
Pursuant to 5TH CIRCUIT RULE 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIRCUIT RULE 47.5.4.
United States Court of Appeals, Fifth Circuit.
Casey JOHNSON, Administratrix of the Estate of David Shane Glazner, Deceased and as Next Friend of R.G., a Minor; Jamie Gordon, as Next Friend J.G., a Minor; Theresa Strickland, Individually and as Assignee of J.T. Glazner, Jr., Plaintiffs—Appellants,
Joseph Anthony CAROLI, Defendant—Appellee.
Appeal from the United States District Court for the Southern District of Texas, USDC No. 4:19-CV-4092, Keith P. Ellison, U.S. District Judge
Attorneys & Firms
Lennon C. Wright, Houston, TX, for Plaintiffs—Appellants.
Natasha Taylor, Bradley Carl Williams, Wright, Close & Barger, L.L.P., Houston, TX, Geary Todd Taylor, Johanson & Fairless, L.L.P., Sugar Land, TX, for Defendant—Appellee.
Before Smith, Stewart, and Graves, Circuit Judges.
*1 Casey Johnson, Jamie Gordon, and Theresa Strickland (collectively, “Plaintiffs-Appellants”) filed this suit against Joseph Anthony Caroli alleging wrongful death and survival claims on behalf of their children. The district court granted summary judgment in favor of Caroli. We affirm.
I. FACTUAL & PROCEDURAL BACKGROUND
In July 2018, Caroli and David Shane Glazer were both employed with Covenant Testing Technologies, LLC (“Covenant”) when they were sent to work at an out-of-town wellsite in Midland, Texas. For business trips such as this one, Covenant provided its employees with lodging, a company vehicle, and reimbursement for fuel expenses. The lodging provided to employees was known as “man camp.” There, employees were provided living and dining accommodations but were permitted to leave the site for various reasons such as running errands or fueling up their vehicles.
On July 14, Caroli and Glazner decided to go to dinner in Pecos, Texas. Caroli drove his company vehicle and Glazner rode as a passenger. The two had dinner, stopped to get gas, picked up sandwiches from Subway, and began driving back to man camp. On the drive back, around 1:40 a.m., Caroli fell asleep at the wheel and his vehicle crossed the center line of the road, hit an eighteen-wheeler, and burst into flames. Caroli survived but Glazner died at the scene of the accident. Soon thereafter, Covenant’s workers’ compensation insurer began remitting payments to Glazner’s children as his beneficiaries.
In October 2019, Plaintiffs-Appellants filed this suit against Catapult Energy Services Group, LLC (“Catapult”), Covenant, and Caroli under the Texas Wrongful Death and Survival Act. See TEX. CIV. PRAC. & REM. CODE Ch. 71, Subch. (A)–(B). During the course of the proceedings, Catapult and Covenant were dismissed from the suit and Caroli was left as the only remaining named defendant. In their complaint, Plaintiffs-Appellants alleged that Caroli had permission from his employer to operate the vehicle and that he was acting in the course and scope of his employment during the time of the collision. They sought actual and exemplary damages with interest. Later, they moved to amend their complaint to allege that Caroli was not acting in the course and scope of his employment during the collision.
Caroli moved for summary judgment on grounds that Plaintiffs-Appellants’ personal injury claims were barred under the Texas Workers’ Compensation Act’s (“TWCA” or “the Act”) exclusive remedy provision. See TEX. LAB. CODE § 408.001(a). The district court agreed, rendered summary judgment in favor of Caroli, and denied Plaintiffs-Appellants’ motion to amend.1 In rendering its judgment, the district court commended the arguments made by the plaintiffs but nevertheless concluded that this was “a workers’ compensation bar case” under the applicable precedent. This appeal followed.
II. STANDARD OF REVIEW
*2 We conduct a de novo review of a district court’s grant of summary judgment. Sanders v. Christwood, 970 F.3d 558, 561 (5th Cir. 2020). “Summary judgment is proper ‘if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.’ ” Id. (citing FED. R. CIV. P. 56(a)). “A panel may affirm summary judgment on any ground supported by the record, even if it is different from that relied on by the district court.” Reed v. Neopost USA, Inc., 701 F.3d 434, 438 (5th Cir. 2012) (internal quotation marks and citation omitted).
On appeal, Plaintiffs-Appellants argue that the district court erred in rendering summary judgment because neither Caroli nor Glazer was acting in the course and scope of employment when the collision happened. They also contend that Glazner’s minor children did not have the legal capacity to elect the remedy of accepting workers’ compensation benefits after their father’s death.2
The TWCA “provides the exclusive remedy for injuries sustained by an employee in the course of his employment as a result of his employer’s negligence.” 102 F.3d 199, 203 (5th Cir. 1997); see also TEX. LAB. CODE § 408.001(a) (“Recovery of workers’ compensation benefits is the exclusive remedy of an employee covered by workers’ compensation insurance coverage ... against the employer or an agent or employee of the employer for the death of or a work-related injury sustained by the employee.”). “The Texas Legislature enacted the [TWCA] in 1913 in response to the needs of workers, who, despite escalating industrial accidents, were increasingly being denied recovery.” SeaBright Ins. Co. v. Lopez, 465 S.W.3d 637, 642 (Tex. 2015) (citation omitted). “[T]o balance the competing interests of providing compensation for injured employees while protecting employers from the costs of litigation, the Legislature provided a mechanism by which workers could recover from subscribing employers without regard to the workers’ own negligence while limiting the employers’ exposure to uncertain, possibly high damage awards permitted under the common law.” Id. (internal quotation marks and citations omitted). The Act strikes a compromise that provides employees with “a lower, but more certain, recovery than would have been possible under the common law.” Id. (citation omitted). To effectuate its purposes, courts liberally construe the Act in favor of coverage to injured workers. Id. (citation omitted).
An injury is compensable under the Act if it is sustained by an employee acting in the course and scope of his employment. See TEX. LAB. CODE § 401.011(10). “ ‘Course and scope of employment’ means an activity of any kind or character that has to do with and originates in the work, business, trade, or profession of the employer and that is performed by an employee while engaged in or about the furtherance of the affairs or business of the employer.” TEX. LAB. CODE § 401.011(12); see also Leordeanu v. Am. Prot. Ins. Co., 330 S.W.3d 239, 243–44 (Tex. 2010). “The term includes an activity conducted on the premises of the employer or at other locations.” Id. Relying on what is known as the “continuous coverage” rule, the Texas Supreme Court has “held that the course and scope of employment in cases of overnight travel is broad, extending even beyond the actual act of travel itself to include injuries sustained during ‘down time.’ ” Zurich Am. Ins. Co. v. McVey, 339 S.W.3d 724, 731–32 (Tex. App.—Austin 2011) (citation omitted).
*3 On the other hand, in what has been codified as the “coming and going” rule, an employee’s travel to and from work does not usually fall under the Act’s course-and-scope definition. See TEX. LAB. CODE § 401.011(12)(A); McVey, 339 S.W.3d at 728. This is “because [t]he risks to which employees are exposed while traveling to and from work are shared by society as a whole and do not arise as a result of the work of employers.” SeaBright, 465 S.W.3d at 642 (internal quotation marks and citation omitted). However, an exception arises if “the relationship between the travel and the employment is so close that it can fairly be said that the injury had to do with and originated in the work, business, trade or profession of the employer.” Id. (quoting Shelton v. Standard Ins. Co., 389 S.W.2d 290, 292 (Tex. 1965)). Courts have also held that employees traveling in company vehicles are excepted from the coming and going rule. See McVey, 339 S.W.3d at 729 (“[I]t is also undisputed that [the employee] was traveling in a vehicle that his company provided and paid for ... [c]onsequently, [the employee’s] travel is excepted from the ‘coming and going’ rule.”).
As the district court observed, the circumstances of this case are similar to those set forth in Shelton. 389 S.W.2d 290. There, the petitioner was working out of town and was struck by an automobile while crossing the street between his motel and a restaurant where he was going to have dinner. Id. at 291. In holding that the petitioner was in the course and scope of his employment when he was struck, the Texas Supreme Court reasoned:
Petitioner was on a trip of several days duration for his employer. Food and sleep were necessary if he was to perform the work for which he was hired, and under the terms of his employment contract he was permitted to stop and satisfy these physical needs and was paid the expenses incident thereto. He was not in Dallas by his own choice but was required to be there to do his job ... In these circumstances we are unable to say as a matter of law that his crossing the street to obtain food was not an incident of the employment, or that the injuries he received did not have to do with and originate in the employer’s business.
Id. at 294.
The factual scenario in Shelton is largely indistinguishable from the one here. In both cases, the employees who were working at out-of-town job sites decided to eat dinner at a restaurant off location (as they were permitted by their employers to do) and were subsequently injured while traveling from their lodging accommodations to the restaurant (like Shelton) or from the restaurant to their lodging accommodations (like Glazner). In Shelton, the Texas Supreme Court concluded that this activity was within the course and scope of employment and thus compensable under the workers’ compensation statute. Id. We do the same here. Other Texas courts have drawn similar conclusions under analogous circumstances. See SeaBright, 465 S.W.3d at 645 (holding that employee who was killed while traveling in his company vehicle to an out-of-town worksite was acting in the course and scope of his employment); McVey, 339 S.W.3d at 732, 734 (holding that employee who was killed while traveling in his company vehicle to an out-of-town worksite was in the course and scope of his employment and reasoning that he “was not traveling [out of town] by his own choice but was required to go there to do his job”). Moreover, Texas’s continuous coverage rule supports this analysis since Glazner was an employee working at an out-of-town jobsite when he sustained injuries while traveling during “down time.” See McVey, 339 S.W.3d at 731–32.
For these reasons, we hold that the district court did not err in rendering summary judgment in favor of Caroli on grounds that Plaintiffs-Appellants’ claims are barred by the exclusive remedy provision of the TWCA.3 See TEX. LAB. CODE § 408.001(a).
*4 For the foregoing reasons, the district court’s summary judgment is AFFIRMED.
Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4.
At the summary judgment hearing, the district court pointed out that Plaintiffs-Appellants’ statement in their live pleading that Caroli was in the course and scope of his employment could be considered a judicial admission.
Plaintiffs-Appellants do not appeal the district court’s denial of their motion to amend.
In light of this holding, we need not reach Plaintiffs-Appellants’ remaining argument that Glazner’s minor children did not have the legal capacity to elect the remedy of accepting workers’ compensation benefits after their father’s death. Nevertheless, we note that the record reflects that, although Glazner could have opted out of coverage under the TWCA, he chose not to do so. See TEX. LAB. CODE § 406.034(a) (“[U]nless the employee gives notice as provided by Subsection (b), an employee of an employer waives the employee’s right of action at common law or under a statute of this state to recover damages for personal injuries or death sustained in the course and scope of the employment.”). Consequently, Plaintiffs-Appellants’ election of remedies argument is inapposite here.
United States Court of Appeals, Fifth Circuit.
AIR EVAC EMS, INCORPORATED, Plaintiff—Appellee,
Kent SULLIVAN, in his Official Capacity as Texas Commissioner of Insurance; Cassie Brown, in her Official Capacity as Texas Commissioner of Workers’ Compensation, Defendants—Appellants,
Texas Mutual Insurance Company; Liberty Mutual Insurance Company; Zenith Insurance Company; Hartford Underwriters Insurance Company; Twin City Fire Insurance Company; Transportation Insurance Company; Valley Forge Insurance Company; Truck Insurance Exchange, Intervenors—Appellants.
August 4, 2021
Appeal from the United States District Court for the Western District of Texas, USDC No. 1:16-CV-60, Sam Sparks, U.S. District Judge.
Attorneys & Firms
Joshua Lee Fuchs, Jones Day, Houston, TX, Benjamin J. Cassady, Charlotte Taylor, Esq., Jones Day, Washington, DC, Roger James George, Jr., Trial Attorney, George Brothers Kincaid & Horton, L.L.P., for Plaintiff-Appellee.
Lisa Bennett, Assistant Solicitor General, Office of the Attorney General for the State of Texas, Jennifer Settle Jackson, Assistant Attorney General, Office of the Attorney General, Financial Litigation & Charitable Trusts Division, for Defendants-Appellants Kent Sullivan, Texas Commissioner of Insurance, Cassie Brown, Texas Commissioner of Workers’ Compensation.
Matthew Birk Baumgartner, Armbrust & Brown, P.L.L.C., Austin, TX, Paul W. Schlaud, Texas Mutual Insurance Company, Office of the General Counsel Division, Austin, TX, for Intervenor-Appellant Texas Mutual Insurance Company.
Robert F. Josey, Hanna & Plaut, L.L.P., Austin, TX , for Intervenor-Appellant Liberty Mutual Insurance Company.
James Michael Loughlin, Stone Loughlin & Swanson, L.L.P., Austin, TX, for Intervenors-Appellants Zenith Insurance Company, Hartford Underwriters Insurance Company, Twin City Fire Insurance Company, Transportation Insurance Company.
Before Stewart, Clement, and Ho, Circuit Judges.
James C. Ho, Circuit Judge:
Air Evac EMS, Inc., is an air ambulance provider that offers medical transport services to a wide variety of patients. That includes patients who are injured at their workplace. The price that Air Evac may charge for such transportation is accordingly subject to conflicting regulatory regimes.
The Texas Workers’ Compensation Act (“TWCA”), Tex. Lab. Code §§ 401.007–419.007, regulates the prices that insurers must pay to providers for various medical services utilized by their beneficiaries. That includes air transport services. But those price restrictions conflict with the federal Airline Deregulation Act (“ADA”), which makes clear that the states “may not enact or enforce a law, regulation, or other provision ... related to a price, route, or service of an air carrier that may provide air transportation under this subpart.” 49 U.S.C. § 41713(b)(1).
The price restrictions are not saved by the McCarran–Ferguson Act. That act makes clear that “[n]o Act of Congress shall be construed to invalidate, impair, or supersede any law enacted by any State for the purpose of regulating the business of insurance, or which imposes a fee or tax upon such business, unless such Act specifically relates to the business of insurance.” 15 U.S.C. § 1012(b). But the price regulations at issue here do not govern “the business of insurance.” The McCarran–Ferguson Act concerns state efforts to regulate the relationship between insurers and insureds—not between insurers and providers.
We accordingly affirm. In doing so, we agree with our sister courts of appeals, which have unanimously held that the ADA preempts state price caps on air ambulance reimbursements, and that those state price caps are not saved by the McCarran–Ferguson Act. And we disagree with the Texas Supreme Court, which has reached contrary conclusions by a divided vote.
Under the TWCA, employees in Texas receive guaranteed medical care paid for by employer-funded insurance policies, in exchange for relinquishing their common-law workplace injury claims. As part of this regulatory scheme, the TWCA strictly regulates the prices that private insurers must pay health care providers for treating workers injured on the job. See TEX. LAB. CODE § 413.011; 28 TEX. ADMIN. CODE §§ 134.1, 134.203. The TWCA also prohibits providers from engaging in “balance-billing”—that is, they cannot collect any remaining balance from either the employer or employee after an insurer has reimbursed the provider less than the full amount for the services rendered. See Tex. Lab. Code § 413.042(a).
Air Evac contends that these price caps are preempted by the ADA. So it sued various Texas state officials, seeking a declaration that the ADA preempts the TWCA and its regulations, and an injunction barring enforcement of the price caps. Alternatively, Air Evac requested an injunction barring enforcement of the TWCA’s balance-billing prohibition.
Eight insurance companies joined the Texas officials as intervenors to defend Texas law. Together they moved to dismiss the case on various jurisdictional grounds. The district court granted the motion, but we subsequently reversed. See Air Evac EMS, Inc. v. Tex., Dep’t of Ins., Div. of Workers’ Comp., 851 F.3d 507, 510 (5th Cir. 2017).
On remand, the district court granted Air Evac’s motion for summary judgment on its claim that the Texas price caps were preempted by the ADA and not saved by the McCarran–Ferguson Act. See Air Evac EMS, Inc. v. Sullivan, 331 F. Supp. 3d 650, 667 (W.D. Tex. 2018). Consequently, it did not address Air Evac’s alternative balance-billing claim. Id. at 656 n.4. The district court enjoined enforcement of Texas Labor Code § 413.011 and Texas Administrative Code §§ 134.1 and 134.203 as applied to Air Evac. Id. at 664.
Both the State and the eight insurance companies appealed. Following oral argument in this case, the Supreme Court of Texas decided a similar case addressing the same issues. See Tex. Mut. Ins. Co. v. PHI Air Med., LLC, 610 S.W.3d 839 (Tex. 2020), cert. denied, ––– U.S. ––––, ––– S.Ct. ––––, ––– L.Ed.2d ––––, 2021 WL 1602647 (Apr. 26, 2021) (mem.). Contrary to the district court here and our sister courts of appeals that have examined these issues, the Texas Supreme Court held that the TWCA price caps on air ambulance providers are not preempted by federal law. But it did so over a thorough dissent supported by two members of the court. Id. at 865 (Green, J., joined by Hecht, C.J.). Seven members sided with the majority, but for differing reasons—six concluded that the ADA does not preempt the TWCA price caps, id. at 843, while four concluded that the TWCA price caps are saved by the McCarran–Ferguson Act, id. at 856.
We review summary judgment rulings de novo. IberiaBank v. Broussard, 907 F.3d 826, 842 (5th Cir. 2018).
Congress enacted the ADA in 1978, introducing free-market principles to a heavily regulated and stagnating aviation industry. To streamline regulations, avoid a patchwork of state protocols, and “ensure that the States would not undo federal deregulation with regulation of their own,” Congress included an express preemption provision. Morales v. Trans World Airlines, Inc., 504 U.S. 374, 378, 112 S.Ct. 2031, 119 L.Ed.2d 157 (1992).
Under the express preemption provision, “[a] State[ ] ... may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of an air carrier that may provide air transportation under this subpart.” 49 U.S.C. § 41713(b)(1). The Supreme Court has made clear that this express preemption provision “has a ‘broad scope’ ” and “an ‘expansive sweep,’ ” and that the “ordinary meaning of these words ... express a broad pre-emptive purpose.” Morales, 504 U.S. at 383–84, 112 S.Ct. 2031 (citations omitted).
Two of our sister circuits have unanimously held that the ADA preempts price controls on air ambulance services set by state workers’ compensation regulations. See Air Evac EMS, Inc. v. Cheatham, 910 F.3d 751 (4th Cir. 2018); EagleMed LLC v. Cox, 868 F.3d 893 (10th Cir. 2017). We agree.
As a threshold matter, Texas and the insurers urge that we adopt a presumption against preemption when it comes to issues of traditional state law such as workers’ compensation. We need not address that contention here, however, because we do not regard this as a close call—the text of the ADA plainly governs this case. See, e.g., Cheatham, 910 F.3d at 762 n.1 (“[W]e need not enter the great preemption presumption wars here because the text of the preemption provision ... governs the disposition of this case.”).
Under the ADA, a state may not enforce any law or regulation that is (1) “related to a price” of (2) an “air carrier” that (3) may provide air transportation “under this subpart.” 49 U.S.C. § 41713(b)(1). Each of those elements is satisfied here. We address each in turn.
The TWCA regulations in question plainly involve the “price” of air transport services. The ADA defines “price” as “a rate, fare, or charge.” 49 U.S.C. § 40102(a)(39). We see no reason to depart from the ordinary meaning of these terms. The term “price” simply means the “sum of money ... asked or given for something” in return. AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE 1038 (1979). See also id. at 1082 (defining “rate” as “a charge or payment calculated in relation to any particular sum or quantity”); id. at 476 (defining “fare” as a “transportation charge”); id. at 226 (defining “charge” as “to set or ask (a given amount) as a price”).
The TWCA regulations plainly govern “price”—namely, the price that Air Evac is allowed to charge Texas workers’ compensation insurers for air ambulance services.
For their part, Texas and the insurers contend that the term “price” applies only to competitive markets—and that “air ambulances do not operate in a market that would dictate the price or rate charged in the absence of government interference.” Under that view, any amount that is determined by a regulator for a particular good or service would not constitute a “price.” That would make terms like “price controls” an oxymoron. Yet the term is ubiquitous in our law. “Consistent usage, as reflected in numerous judicial opinions, can be an authoritative source of common parlance.” Frederking v. Cincinnati Ins. Co., 929 F.3d 195, 198 (5th Cir. 2019) (citing New Prime Inc. v. Oliveira, ––– U.S. ––––, 139 S. Ct. 532, 540, 202 L.Ed.2d 536 (2019)). See, e.g., Yakus v. United States, 321 U.S. 414, 418, 64 S.Ct. 660, 88 L.Ed. 834 (1944) (concerning the constitutionality of the Emergency Price Control Act of January 30, 1942, 56 Stat. 23); United States v. Uni Oil, Inc., 710 F.2d 1078, 1080 (5th Cir. 1983) (concerning federal “price controls” on oil). See also Address to the Nation Outlining a New Economic Policy: “The Challenge of Peace”, PUBLIC PAPERS OF PRESIDENT RICHARD M. NIXON 888 (Aug. 15, 1971) (“I am today ordering a freeze on all prices and wages throughout the United States for a period of 90 days. In addition, I call upon corporations to extend the wage-price freeze to all dividends.”); Exec. Order No. 11,615—Providing for Stabilization of Prices, Rents, Wages, and Salaries, 36 Fed. Reg. 15,727 (Aug. 15, 1971). In response, Texas and the insurers rely on Hodges v. Delta Airlines, Inc., 44 F.3d 334, 336 (5th Cir. 1995) (en banc). But in Hodges we construed the term “service,” not “price,” under the ADA.
In sum, the amount that TWCA rules would allow Air Evac to receive for its air ambulance services falls well within the term “price” under the ADA. Accordingly, those TWCA rules plainly “relate to” price.
As the Supreme Court has observed, the term “related to” under the ADA is broad and indeed “much more broadly worded” than other preemption provisions. Northwest, Inc. v. Ginsberg, 572 U.S. 273, 283, 134 S.Ct. 1422, 188 L.Ed.2d 538 (2014). See also Morales, 504 U.S. at 383–85, 112 S.Ct. 2031. A law “relate[s] to” price under the ADA so long as it has a “connection with or reference to” price or presents a “significant effect” on the price of air services. Morales, 504 U.S. at 384, 388, 112 S.Ct. 2031. See also Buck v. Am. Airlines, Inc., 476 F.3d 29, 34–35 (1st Cir. 2007) (“[T]he ADA preempts both laws that explicitly refer to an airline’s prices and those that have a significant effect upon prices.”); Travel All Over the World, Inc. v. Saudi Arabia, 73 F.3d 1423, 1433 (7th Cir. 1996) (declining to find preemption when plaintiffs’ tort claims neither “expressly refer to airline rates, routes, or services,” nor have a “ ‘forbidden significant [economic] effect’ on airline rates, routes, or services”) (alteration in original).
The TWCA regulations challenged here obviously have a “significant effect” on Air Evac’s prices—they effectively forbid Air Evac from recovering from workers’ compensation insurers the price that they would otherwise charge for air ambulance services. As we have previously noted, the “TWCA’s provisions effectively set a reimbursement rate” on air ambulance services by restricting the amount insurers pay them. Air Evac, 851 F.3d at 514. See also PHI Air Med., 610 S.W.3d at 866 (Green, J., dissenting) (“The TWCA’s reimbursement scheme is related to an air ambulance’s prices because it indirectly limits the amount than an air carrier may charge for its services.”). As the Fourth Circuit put it, “[i]f such actions involving an air carrier are not ‘related to price,’ it is unclear what meaning the phrase would have left.” Cheatham, 910 F.3d at 767–68.
We likewise have little trouble concluding that Air Evac qualifies as an “air carrier.” The ADA defines an “air carrier” as “a citizen of the United States undertaking by any means, directly or indirectly, to provide air transportation.” 49 U.S.C. § 40102(a)(2). Air ambulances transporting patients to hospitals fall squarely within that definition. Courts are agreed on this point. See, e.g., Cheatham, 910 F.3d at 764; Bailey v. Rocky Mountain Holdings, LLC, 889 F.3d 1259, 1266–68 (11th Cir. 2018); Cox, 868 F.3d at 904; Stout v. Med-Trans Corp., 313 F. Supp. 3d 1289, 1294 (N.D. Fla. 2018); Schneberger v. Air Evac EMS, Inc., 2017 WL 1026012, *2 (W.D. Okla. 2017); Valley Med Flight, Inc. v. Dwelle, 171 F. Supp. 3d 930, 933–34 (D.N.D. 2016); Med-Trans. Corp. v. Benton, 581 F. Supp. 2d 721, 732 (E.D.N.C. 2008); PHI Air Med., 610 S.W.3d at 843. As are federal agencies. Air Evac holds a “Part 135” operating certificate from the Federal Aviation Administration (“FAA”) allowing it to “operate as an air carrier and conduct common carriage operations.” ROA.1235. The Department of Transportation (“DOT”) also recognizes Air Evac as an “air carrier” under “Part 298,” which grants it a license to operate as an air taxi. ROA.1239.
Nevertheless, Texas and the insurers insist that air ambulances are not “air carriers” under the ADA because Congress’s purpose in enacting the ADA was to cover only commercial, passenger airlines. But we are governed by the text of the statute. See, e.g., Morales, 504 U.S. at 383, 112 S.Ct. 2031 (“[W]e ... begin with the language employed by Congress and the assumption that the ordinary meaning of that language accurately expresses the legislative purpose.”) (quotations and citations omitted). Neither Texas nor the insurers have “presented a single textual reason to support the argument that the broad language of the [ADA]’s express preemption provision should not include air-ambulance services.” Cox, 868 F.3d at 904.
Finally, air ambulances “provide air transportation under this subpart”—that is, under subpart II of the amended Federal Aviation Act. 49 U.S.C. § 41713(b)(1). Air ambulance companies hold a registration issued by the Secretary of Transportation and are subject to certain economic regulations under subpart II. 14 C.F.R. pt. 298. That is all that is required under the plain text of § 41713(b)(1).
The State and the insurers argue that Air Evac is not sufficiently subject to subpart II because the Secretary has exempted air ambulances from the general requirement to hold a certificate of public convenience and necessity. But § 41713(b)(1) simply requires air carriers to “provide air transportation” under subpart II—it does not require air carriers to be certified under subpart II. Other courts that have examined this issue have reached the same conclusion. See, e.g., Cheatham, 910 F.3d at 764–65 (agreeing “with Air Evac that the phrase ‘under this subpart’ includes all air carriers regulated by the Secretary of Transportation under subpart II, rather than those specifically certified under the subpart”); Hughes Air Corp. v. Pub. Utils. Comm’n, 644 F.2d 1334, 1338–39 (9th Cir. 1981) (holding that air carriers operating under an exemption still fell within the ADA’s preemption provision). We agree that air ambulance providers like Air Evac provide air transportation under subpart II.
* * *
Accordingly, we hold that the ADA expressly preempts TWCA reimbursement regulations as applied to air ambulance services.
The TWCA reimbursement regulations are not saved by the McCarran–Ferguson Act. As relevant here, the McCarran–Ferguson Act shields from federal preemption those state laws that are “enacted ... for the purpose of regulating the business of insurance,” unless the federal statute “specifically relates to the business of insurance.” 15 U.S.C. § 1012(b). So the Act “precludes application of a federal statute in [the] face of state law ‘enacted ... for the purpose of regulating the business of insurance,’ if the federal measure does not ‘specifically relat[e] to the business of insurance,’ and ‘would invalidate, impair, or supersede’ the State’s law.” Humana Inc. v. Forsyth, 525 U.S. 299, 307, 119 S.Ct. 710, 142 L.Ed.2d 753 (1999) (alterations in original) (quoting U.S. Dep’t of Treasury v. Fabe, 508 U.S. 491, 501, 113 S.Ct. 2202, 124 L.Ed.2d 449 (1993)).
It is undisputed that the ADA does not “specifically relate to” the business of insurance. So the sole issue is whether the TWCA was enacted “for the purpose of regulating the business of insurance”—that is, if it has the “ ‘end, intention, or aim’ of adjusting, managing, or controlling the business of insurance.” Fabe, 508 U.S. at 505, 113 S.Ct. 2202 (quoting BLACK’S LAW DICTIONARY 1236, 1286 (6th ed. 1990)).
That requires determining whether the challenged provisions of the TWCA regulate “the relationship between the insurance company and the policyholder.” Id. at 501, 113 S.Ct. 2202 (quoting SEC v. Nat’l Sec., Inc., 393 U.S. 453, 460, 89 S.Ct. 564, 21 L.Ed.2d 668 (1969)). The McCarran–Ferguson Act “assure[s] that the activities of insurance companies in dealing with their policyholders would remain subject to state regulation.” Nat’l Sec., 393 U.S. at 460, 89 S.Ct. 564 (emphasis added).
The TWCA regulations at issue here deal with the relationship between insurers and providers—namely, the providers of air ambulance services—and not the relationship between insurers and their beneficiaries. Accordingly, the TWCA regulations are not shielded from federal preemption under the McCarran–Ferguson Act.
In Group Life & Health Insurance Company v. Royal Drug Company, 440 U.S. 205, 99 S.Ct. 1067, 59 L.Ed.2d 261 (1979), the Supreme Court made clear that the “focus” of our inquiry is whether the insurance practice that is the subject of state regulation governs “the relationship between the insurance company and the policyholder.” Id. at 216, 99 S.Ct. 1067 (quoting Nat’l Sec., 393 U.S. at 460, 89 S.Ct. 564). That relationship is “the core of the ‘business of insurance.’ ” Id. at 215, 99 S.Ct. 1067. See also Fabe, 508 U.S. at 493, 113 S.Ct. 2202 (“We hold that the Ohio priority statute escapes preemption to the extent that it protects policyholders.”). In addition, the Court identified two other criteria: “whether the practice has the effect of transferring or spreading a policyholder’s risk,” and “whether the practice is limited to entities within the insurance industry.” Union Lab. Life Ins. Co. v. Pireno, 458 U.S. 119, 129, 102 S.Ct. 3002, 73 L.Ed.2d 647 (1982) (citing Royal Drug, 440 U.S. at 211–12, 215, 231, 99 S.Ct. 1067).
The TWCA regulations fail under all three criteria. See, e.g., PHI Air Med., 610 S.W.3d at 876–77 (Green, J., dissenting) (concluding that the TWCA regulations fail under all three factors identified in Royal Drug and Pireno).
To begin with, the TWCA regulations govern the relationship between insurers and providers, not insurers and insureds. So the regulations do not involve the “business of insurance” under the first criteria.
The Court reached precisely the same conclusion under similar facts in Royal Drug. It held that an insurer’s agreement to reimburse pharmacies for the cost of prescription drugs if the pharmacies offered the drugs to the insurer’s policyholders for $2 did not involve the “business of insurance.” Royal Drug, 440 U.S. at 212–14, 99 S.Ct. 1067. To conclude otherwise would “confuse the obligations of [the insurer] under its insurance policies”—which involved the insurer–insured relationship—“and the agreements between [the insurer] and the participating pharmacies, which serve only to minimize the costs [the insurer] incurs in fulfilling its underwriting obligations.” Id. at 213, 99 S.Ct. 1067. The defining feature of the insurer–insured relationship is the exchange of insurance premiums in order to obtain medical benefits. The particulars of any exchange between insurers and pharmacies are merely ancillary features that are not part of the “business of insurance.” And even though any cost savings might be passed on to policyholders in the form of reduced premiums, individual beneficiaries were “basically unconcerned” with any specific business arrangements between the insurer and the pharmacy, so long as the beneficiaries received the promised benefits. Id. at 214, 99 S.Ct. 1067. As the Court put it, McCarran–Ferguson “exempts the ‘business of insurance’ and not the ‘business of insurance companies.’ ” Id. at 217, 99 S.Ct. 1067. “It is next to impossible to assume that Congress could have thought that agreements (even by insurance companies) which provide for the purchase of goods and services from third parties at a set price are within the meaning of that phrase [i.e. ‘business of insurance’].” Id. at 230, 99 S.Ct. 1067.
By the same logic, the TWCA regulations challenged here likewise do not involve the relationship between the insurer and the insured. As in Royal Drug, the regulations help reduce costs to the workers’ compensation insurance carrier. But employers and employees are “basically unconcerned” with how the insurer structures its payments or how much any single service provider is paid. Id. at 214, 99 S.Ct. 1067. After all, the amount the insurer pays the provider is not a benefit to the insured. In sum, the focus of the TWCA regulations is on the relationship between insurer and provider, not insurer and insured.
The insurers here try to avoid Royal Drug by contending that the TWCA reimbursement cap is “critical to the spreading of risk” by limiting the overall liabilities of insurers. But that argument proves too much. If the insurers are right, then “almost every business decision” would be part of the “business of insurance,” because virtually every business decision has “some impact” on premium amounts and policy issuance. Id. at 216–17, 99 S.Ct. 1067. Yet this is exactly the type of downstream effect that the Supreme Court has placed outside the “business of insurance.” After all, “[s]uch cost-savings arrangements may well be sound business practice, and may well inure ultimately to the benefit of policyholders in the form of lower premiums, but they are not the ‘business of insurance.’ ” Id. at 214, 99 S.Ct. 1067.
The TWCA regulations also fail under the two remaining criteria. Reimbursement arrangements between insurers and providers do not meaningfully affect the allocation of risk between insurer and insured. The arrangement may help limit the insurer’s costs, but it does not substantially affect the transfer of risk from the insured to the insurer. Nor is the subject of the regulations “limited to entities within the insurance industry.” Pireno, 458 U.S. at 129, 102 S.Ct. 3002. Air Evac is an air ambulance company, not an insurance company.
For their part, Texas and the insurers contend that the three criteria set forth in Royal Drug and Pireno apply in cases involving the application of certain enumerated federal antitrust statutes, and have only limited applicability to other federal laws like the ADA. See 15 U.S.C. § 1012(b).
But nothing in the text of the McCarran–Ferguson Act suggests that we should give the term “business of insurance” a different meaning when it comes to applying the Act to other federal statutes like the ADA. “[W]e ‘cannot imagine that “business of insurance” could have two different meanings in the same statutory subsection.’ ” Bailey, 889 F.3d at 1273 n.30 (quoting Blackfeet Nat’l Bank v. Nelson, 171 F.3d 1237, 1246 n.13 (11th Cir. 1999)).
Accordingly, our court has applied the Royal Drug–Pireno framework to federal statutes other than the enumerated antitrust provisions. See Am. Bankers Ins. Co. of Fla. v. Inman, 436 F.3d 490, 493–94 (5th Cir. 2006); Munich Am. Reinsurance Co. v. Crawford, 141 F.3d 585, 590–91 (5th Cir. 1998).
* * *
We hold that the TWCA regulations concerning the reimbursement of air ambulance providers like Air Evac are preempted by the ADA, and are not saved by the McCarran–Ferguson Act. Accordingly, we affirm.
United States Court of Appeals, Fifth Circuit.
SENTINEL INSURANCE COMPANY, LIMITED, Plaintiff-Appellant
Vilma S. ORTIZ; Johnathan Morales; Bryan Y. Ortiz, Defendants-Appellees
FILED April 30, 2020
Appeal from the United States District Court for the Southern District of Texas, USDC No. 4:19-CV-380
Attorneys & Firms
David L. Brenner, Belinda May Arambula, Burns, Anderson, Jury & Brenner, L.L.P., Austin, TX, for Plaintiff-Appellant
Maitreya Tomlinson, Esq., The Tomlinson Firm, P.L.L.C., Austin, TX, Michael B. Jolly, Houston, TX, Michael Sprain, Houston, TX, for Defendants-Appellees
Before SMITH, GRAVES, and HO, Circuit Judges.
Sentinel Insurance Company appeals the district court’s grant of summary judgment in favor of the beneficiaries of Mario Morales. Because the district court did not err, we AFFIRM.
FACTS AND PROCEDURAL HISTORY
On December 20, 2016, Mario Morales was struck by an industrial pipe and sustained fatal injuries while working for Womble Company, Inc. Sentinel provided the workers’ compensation and employer liability insurance coverage for Womble. Vilma Ortiz, Johnathan Morales and Bryan Ortiz are Morales’ beneficiaries. Following Morales’ death, there was a dispute between his beneficiaries and Sentinel regarding whether Morales was an employee or an independent contractor for purposes of the Womble policy. The Texas Department of Insurance Division of Workers’ Compensation (DWC) determined that Morales was an independent contractor. The DWC also determined that, because Morales was an independent contractor and not an employee, his beneficiaries were not entitled to death benefits under the Texas Workers’ Compensation Act.
Sentinel filed for judicial review, seeking a declaratory judgment that Morales was an employee. The beneficiaries moved to dismiss for lack of statutory standing. The district court converted the motion to dismiss into a motion for summary judgment and granted it on May 16, 2019. Sentinel subsequently filed this appeal.
STANDARD OF REVIEW
This Court reviews de novo a district court’s grant of summary judgment, viewing all evidence in the light most favorable to the nonmoving party and drawing all reasonable inferences in that party’s favor. Dediol v. Best Chevrolet, Inc., 655 F.3d 435, 439 (5th Cir. 2011). Summary judgment is proper when the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). A genuine issue of material fact exists if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Crawford v. Formosa Plastics Corp., 234 F.3d 899, 902 (5th Cir. 2000) (quoting *865 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L.Ed.2d 202 (1986)).
We review issues of standing, which is a jurisdictional prerequisite, de novo. See Crane v. Johnson, 783 F.3d 244, 250 (5th Cir. 2015); see also N.H. Ins. Co. v. Dominguez, 661 F. App’x 267, 269-70 (5th Cir. 2016).
Sentinel asserts on appeal that it is aggrieved and has standing to seek judicial review of an adverse workers’ compensation administrative decision in light of the conclusion that it is not liable for workers’ compensation benefits. Specifically, and despite not being responsible for paying the $350,000 in death benefits, Sentinel asserts that it is aggrieved because it may potentially have to reimburse some $36,709.27 in workers’ compensation premiums to Womble at some point in the future.
The beneficiaries counter that Sentinel premises its aggrievement arguments on a non-existent injury or loss. We agree.
Under Texas law, a party may seek judicial review of an administrative remedy if it is “aggrieved” by the final decision. See Tex. Lab. Code Ann. § 410.251. As the district court stated, Texas courts have “prescribe[d] a narrow interpretation” of aggrieved. See Dominguez, 661 F. App’x at 269 (citing Ins. Co. of the State of Penn. v. Orosco, 170 S.W.3d 129, 132–33 (Tex. App.—San Antonio 2005); Just Energy Tex. I Corp. v. Tex. Workforce Comm’n, 472 S.W.3d 437, 441–43 (Tex. App.—Dallas 2015); Tex. Mun. League Intergovernmental Risk Pool v. Burns, 209 S.W.3d 806, 814–15 (Tex. App.—Fort Worth 2006), overruled on other grounds by Tex. Mut. Ins. Co. v. Chicas, 593 S.W.3d 284 (Tex. 2019); In re Tex. Mut. Ins. Co., 331 S.W.3d 70, 77 (Tex. App.—Eastland 2010); Covenant Health Sys. v. Dean Foods Co., No. 07-09-0348-CV, 2011 WL 3717056 at *4 (Tex. App.—Amarillo 2011); see also In re Coho Energy Inc., 395 F.3d 198, 202 (5th Cir. 2004)).
Further, Texas courts have said that “a party is aggrieved by a final decision of the appeals panel if the injury or loss resulting from the final decision is actual and immediate; a possible future injury or loss as a consequence of the panel decision is not sufficient to show an aggrievement.” Orosco, 170 S.W.3d at 133; see also City of San Antonio v. Diehl, 387 S.W.3d 777, 782 (Tex. App.—El Paso 2012) (party not aggrieved where DWC “decision did not require Diehl to pay any money nor did it authorize the City to recoup funds”).
As the district court found in its thorough order, the DWC’s decision addresses only the employment relationship between Womble and Morales. Nothing in the DWC decision requires Sentinel to pay any money or authorizes Womble to recoup any money. Moreover, Sentinel acknowledges that it has not refunded any premiums nor paid any benefits, and cannot establish any actual or immediate injury. Additionally, although Sentinel asserts that the policy will require a refund in the future, it cannot establish that any such possible future injury would be “resulting from the final decision.”
For the reasons set out previously herein and by the district court, we conclude that Sentinel failed to establish that it has statutory standing to seek judicial review of the DWC’s decision under Texas law. Thus, the district court did not err in granting summary judgment on the basis of standing. Accordingly, we AFFIRM.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
United States Court of Appeals, Fifth Circuit.
Jane MILLIGAN, individually and as Representative of the Estate of Fritz Pierre Poux, Sr., Plaintiff - Appellant
HOME DEPOT USA, INCORPORATED, Defendant - Appellee
FILED April 15, 2020
Attorneys & Firms
Misty Annette Hataway-Cone’, Cone, P.L.L.C., Houston, TX, Joshua Robert Leske, Husain Law & Associates, P.C., Houston, TX, for Plaintiff - Appellant
Jason Ryan Bernhardt, Katie Banks, Winstead, P.C., Houston, TX, for Defendant - Appellee
Before WIENER, HAYNES, and COSTA, Circuit Judges.
*218 Jane Milligan appeals the district court’s grant of summary judgment for Home Depot U.S.A., Inc. on her common-law negligence claim. For the reasons below, we AFFIRM.
Fritz Poux worked as a Home Depot employee and had a history of heart health issues. In 2015, while working at Home Depot’s store in Porter, Texas, Poux submitted a medical accommodations request form completed by his doctor to Home Depot. His doctor noted that due to Poux’s heart issues, Poux should not “work outside in heat” and should “not be required to lift, push or pull over 20 lbs.” His doctor also specifically recommended that Poux not work as a lumber department supervisor, Poux’s position at the time. Poux thereafter worked as a sales associate.
In 2016, Poux suffered a cardiac event. His doctor again noted that it would be in Poux’s “best interest” to do work that did “not require heavy lifting over 30 lbs or exposure to extreme heat.” Poux returned to work about two months after his cardiac event. When he returned, he was transferred to Home Depot’s store in Humble, Texas, and put to work in the lumber department as a sales associate. Two weeks into working at the Humble location, Poux suffered a stroke. He was found in the back part of the store, “[n]ot too far” from two wood saws. According to an employee accident claim worksheet completed after the event, Poux was “cutting lumber” at the time of the incident. Due to complications from the stroke, Poux died in 2018.
Poux’s wife, Milligan, sued Home Depot in Texas state court, raising a claim of negligence under the non-subscriber portion of the Texas Worker’s Compensation Act. Home Depot timely removed the case to federal district court on diversity grounds.1 Home Depot then moved for summary judgment, arguing that it owed no duty to accommodate Poux’s medical restrictions, that it did not breach any duty owed to Poux, and that its alleged failure to accommodate Poux’s restrictions was not the proximate cause of Poux’s injuries. The district court granted Home Depot’s motion for summary judgment, holding that Milligan failed to meet her burden of showing that Home Depot had a duty to accommodate Poux’s health restrictions or raising a material fact dispute that Home Depot breached its duty to provide a reasonably safe work environment. Milligan timely appealed.
*219 II. Standard of Review
We review a district court’s grant of summary judgment de novo and apply the same standard as the district court. Howell v. Town of Ball, 827 F.3d 515, 521 (5th Cir. 2016). In so doing, “[w]e view all facts and evidence in the light most favorable to the non-moving party.” Ferraro v. Liberty Mut. Fire Ins. Co., 796 F.3d 529, 531 (5th Cir. 2015). Summary judgment is proper when “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). “We may affirm for reasons other than those relied upon by the district court.” LLEH, Inc. v. Wichita Cty., 289 F.3d 358, 364 (5th Cir. 2002) (brackets omitted).
Because Home Depot is a worker’s compensation non-subscriber, Milligan must establish negligence by Home Depot to recover. Werner v. Colwell, 909 S.W.2d 866, 868 (Tex. 1995). To establish negligence, a plaintiff must prove that (1) the defendant had a legal duty, (2) the defendant breached that duty, and (3) damages proximately resulted from that breach. Kroger Co. v. Elwood, 197 S.W.3d 793, 794 (Tex. 2006) (per curiam).
Milligan argues that “Home Depot had a duty to exercise ordinary care and abide by Poux’s prior health care accommodations which it had been aware of.” Texas law does impose a duty on employers to “use ordinary care in providing a safe workplace.” Elwood, 197 S.W.3d at 794. But Home Depot argues that this duty does not require employers to accommodate employees’ work restrictions. See generally Austin v. Kroger Tex., L.P., 465 S.W.3d 193, 213 (Tex. 2015) (holding that, despite rules limiting an employer’s use of defenses based upon employee conduct, an employer owes no duty to an employee who was aware of the dangers associated with their job duties).
Assuming arguendo that the duty to provide a safe workplace requires employers to accommodate employees’ health requirements,2 we hold that Milligan failed to raise a material fact dispute as to whether Home Depot failed to accommodate Poux’s work restrictions. Milligan argues that Home Depot did not adhere to Poux’s work restrictions because it put Poux to work in the lumber department, which she contends is Home Depot’s most physically strenuous department. While the lumber department does require some strenuous work, Milligan provided no evidence suggesting that Poux was required to do such work. The lumber department supervisor testified that the strenuous aspects of the job are lifting bags of concrete and loading wood into the back of customers’ trucks. But Poux was indoors cutting lumber with a wood saw at the time of his stroke.3 Milligan provided no evidence that cutting lumber with a wood saw contradicted Poux’s doctor’s recommendation that Poux do no work that required using more than twenty to thirty pounds of force.
Even if cutting lumber with a wood saw was outside of Poux’s work restriction, he did not request assistance. Poux’s coworker testified that employees have communication devices that they can use to call for help and that Poux did not use his device for help the day of the incident. An *220 employer is not liable for injury that “results from the actions of [an] employee who voluntarily proceeds to do the work without assistance.” Adams v. Reynolds Tile & Flooring, Inc., 120 S.W.3d 417, 421 (Tex. App.—Houston [14th Dist.] 2003, no pet.).
Milligan also suggests that Poux’s doctor requested that he no longer work in the lumber department. However, no evidence supports that suggestion. The doctor only recommended that Poux no longer work as a supervisor in the lumber department, and Poux was working as a sales associate, not a supervisor. Thus, there is no evidence that Home Depot failed to accommodate Poux’s work restrictions.
Lastly, Milligan claims that Home Depot’s refusal to adhere to Poux’s work restrictions is evident from the employee accident claim worksheet, which noted that “job restrictions” could prevent a reoccurrence of Poux’s accident. But the worksheet did not identify what types of job restrictions could prevent a reoccurrence, nor did it state that Poux’s work restrictions were not being followed. The record does not provide any evidence that Poux was working outside of his doctor’s restrictions. Thus, even if Home Depot had a duty to accommodate Poux’s work restrictions, Poux failed to raise a fact issue supporting the claim that Home Depot breached that duty. AFFIRMED.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
We have not yet addressed whether 28 U.S.C. § 1445(c), which precludes removal of claims arising under the worker’s compensation laws of any state, applies when a plaintiff sues a non-subscriber under the Texas Worker’s Compensation Act. See Gomez v. O’Reilly Auto. Stores, Inc., 283 F. Supp. 3d 569, 572 (W.D. Tex. 2017). We do not address this issue here. Improper removal under § 1445(c) is a procedural defect that requires the non-removing party to move for remand within thirty days. Williams v. AC Spark Plugs Div. of Gen. Motors Corp., 2
We do not decide whether an employer’s duty to provide a reasonably safe workplace requires an employer to accommodate an employee’s medical restrictions.
While there is some dispute as to what exactly Poux was doing at the time of his stroke, we view the “facts and evidence in the light most favorable to” Milligan. Ferraro, 796 F.3d at 531.
United States Court of Appeals, Fifth Circuit.
Kenneth HENRY, Plaintiff - Appellant
SPECTRUM, L.L.C., formerly doing business as Time Warner Cable Texas, L.L.C.; Charter Communications, L.L.C., formerly doing business as Time Warner Cable Texas, L.L.C., Defendants - Appellees
FILED November 21, 2019
*274 Appeal from the United States District Court for the Northern District of Texas, USDC 3:18-CV-1086
Attorneys & Firms
John Edward Wall, Jr., Law Offices of John E. Wall, Jr., Dallas, TX, for Plaintiff-Appellant
Christine Elaine Reinhard, Delilah Lorenz Evans, Esq., Schmoyer Reinhard, L.L.P., San Antonio, TX, Marcia Nelson Jackson, Esq., Wick Phillips Gould & Martin, L.L.P., Dallas, TX, for Defendants-Appellees
Before JOLLY, JONES, and SOUTHWICK, Circuit Judges.
The plaintiff asserts that when he was fired from his job, his employer had engaged in unlawful discrimination and retaliation under the Americans with Disabilities Act and state law. The district court granted summary judgment in favor of the defendants. We AFFIRM the summary judgment and DISMISS certain parts of the appeal as explained below.
From 1992 to 2015, Kenneth Henry worked as a maintenance technician for Time Warner Cable Texas, L.L.C. In May 2015, while driving a company vehicle, he ran a red light. The accident severely injured multiple people. Time Warner has a committee that reviews employee accidents. The committee determined that the severity and avoidable nature of the accident warranted terminating Henry’s employment. As a result, Henry was fired. Henry argues that the accident was due to a diabetic emergency. Consequently, he argues his firing was based on his diabetes and was also in retaliation for filing a workers’ compensation claim.
In addition to appealing the final judgment for the defendants, Henry seeks to appeal the district court’s denial of his motion to compel as well as that court’s partial judgment on the pleadings, in which the district court dismissed two of Henry’s claims. The defendants doubt our *275 jurisdiction to review those two earlier rulings.
In analyzing our appellate jurisdiction, we start with the requirement that an appellant designate the orders being appealed. FED. R. APP. P. 3(c)(1)(B). “Where the appellant notices the appeal of a specified judgment only or a part thereof, however, this court has no jurisdiction to review other judgments or issues which are not expressly referred to and which are not impliedly intended for appeal.” C. A. May Marine Supply Co. v. Brunswick Corp., 649 F.2d 1049, 1056 (5th Cir. 1981).
We will have jurisdiction, though, if the notice of appeal refers to an order that was “predicated” on previous orders, and “the several orders and the issues they deal with are for the most part inextricably interrelated.” Cates v. Int’l Tel. & Tel. Corp., 756 F.2d 1161, 1173 n.18 (5th Cir. 1985). In Cates, the defendants convinced the district court to dismiss two of the plaintiffs. Id. at 1168. The court later denied the remaining plaintiff’s motion to vacate the earlier ruling, prohibiting the mention of those dismissed plaintiffs in the next amended complaint. Id. at 1170. Final judgment came several months later. The court dismissed based on the amended complaint’s failure to state a claim; the amended allegations directly related to the actions of the previously dismissed plaintiffs. Id. at 1172. The final order in the case thus was “expressly ... predicated” on the previous two orders. Id. at 1173 n.18.
Henry timely filed his notice of appeal after final judgment. He stated that he was appealing the “Memorandum Opinion and Order granting summary judgment and the judgment in favor of defendants ... entered in this action on March 19, 2019.” Because the notice of appeal specifies only the order of summary judgment, we have jurisdiction to review the other two orders only if they are sufficiently related. The order denying the motion to compel was not factually related to the grant of summary judgment. The summary judgment order also disposed of different claims than the order granting judgment on the pleadings. Because summary judgment was not dependent on the previous two orders, we conclude the orders were not “inextricably interrelated.” Cates, 756 F.2d at 1173 n.18. Accordingly, we have no jurisdiction to review those earlier orders.
The defendants do not argue there is any jurisdictional defect for review of the district court’s determination that the two remaining claims were without merit: discrimination under Section 102(a) of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12112(a), and for retaliation in violation of the state’s workers’ compensation law. We review a district court’s grant of summary judgment de novo. United States v. Lawrence, 276 F.3d 193, 195 (5th Cir. 2001). Summary judgment is proper if there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a).
In support of reversal on the ADA discrimination claim, Henry asserts he has presented direct evidence of discrimination. “If the plaintiff produces direct evidence that discriminatory animus played a role in the employer’s adverse employment decision, the burden of persuasion shifts to the defendant who must prove that it would have taken the same action despite any discriminatory animus.” Nall v. BNSF Ry. Co., 917 F.3d 335, 340 (5th Cir. 2019). Henry, though, had no direct evidence of discrimination. Rather, his evidence requires chains of inferences and assumptions to reach the conclusion that Time Warner acted with discriminatory animus. See *276 Rodriguez v. Eli Lilly & Co., 820 F.3d 759, 764–65 (5th Cir. 2016). Thus, he must rely on circumstantial evidence and the McDonnell Douglas burden-shifting framework. Id.
The district court held that Henry established a prima facie case of discrimination through evidence of his disability and his being qualified for his position. The court nonetheless held that the claim failed because Henry did not show that Time Warner’s stated reason for his firing was pretextual.
Henry argues that inconsistencies and his employer’s failure to follow its own protocol show pretext. Henry does identify minor alleged inconsistencies about how he was fired, but he shows no inconsistencies about why he was fired. To succeed, Henry needed to create a fact issue about Time Warner’s motive in firing him. See Rodriguez, 820 F.3d at 765–66. The company’s safety policy explicitly allowed for immediate termination for severe accidents. The undisputed facts indicate that is what happened here.
We need not decide whether Time Warner’s accident review committee reached the best conclusion in determining the accident was severe and avoidable. Instead, we review whether the employer acted in good faith in relying on the investigation, or whether the investigation’s conclusion was used “as pretext for an otherwise discriminatory dismissal.” Waggoner v. City of Garland, 987 F.2d 1160, 1165 (5th Cir. 1993) (ADEA). In a mostly conclusory fashion, Henry asserts that the review committee was wrong in determining that the accident was avoidable. He also cites to his own declaration and a friend’s declaration to support the fact that he was experiencing diabetic symptoms on the date of the accident. Regardless of whether this evidence creates a question of fact as to whether the accident was avoidable, it does not create a question of fact as to whether Time Warner relied reasonably and in good faith on the review committee’s conclusion. Thus, nothing in the record supports that the stated reasons for Henry’s firing were pretextual.
The only meaningful question here is the legal relevance of the possibility that the serious accident was the result of Henry’s diabetes. A somewhat related question was posed in an appeal in which we upheld the termination of the employee when a university “dismissed him because of his work performance and lack of collegiality.” Newberry v. E. Tex. State Univ., 161 F.3d 276, 279 (5th Cir. 1998). The discharged employee presented evidence at trial that he suffered from obsessive-compulsive personality disorder and that any work-performance deficiencies were the result of that condition. Id. at 278. Jurors found that the former employee had no disability, and the district court entered judgment upholding the finding. Id. at 279. On appeal, we held that even when an employer believes that certain conduct may be symptomatic of a disability, termination is still permissible on the “basis of the conduct itself, as long as the collateral assessment of disability plays no role in the decision to dismiss.” Id. at 279–80.
Applying that analysis here, we conclude that Henry had to introduce evidence to create a genuine dispute of material fact that he was fired for reasons related to a qualifying disability. His diabetes was not shown be a factor in the termination regardless of whether it was a factor in causing the accident. Therefore, whether the accident was caused in whole or in part by Henry’s diabetes is not legally relevant to the question of pretext.
Henry raises additional arguments that were not briefed to the district court in support of his discrimination claim. Generally, we do not consider arguments raised *277 for the first time on appeal. See AG Acceptance Corp. v. Veigel, 564 F.3d 695, 701 (5th Cir. 2009). We do not consider those raised by Henry.
The district court also granted summary judgment dismissing Henry’s workers’ compensation retaliation claim under Section 451.001 of the Texas Labor Code. To establish a case of retaliation, a plaintiff must show that he made a workers’ compensation claim that caused him to experience an adverse employment action. Haggar Clothing Co. v. Hernandez, 164 S.W.3d 386, 388 (Tex. 2005). The district court held that Henry failed to establish causation. We agree that there is nothing in the record to support that Time Warner’s stated reason for firing Henry was pretextual and that he would have been treated differently but for his filing for workers’ compensation.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
United States Court of Appeals, Fifth Circuit.
EXXON MOBIL CORPORATION, Plaintiff-Appellee,
STARR INDEMNITY & LIABILITY INSURANCE COMPANY; National Union Insurance Company of Pittsburgh, Pennsylvania; The Insurance Company of the State of Pennsylvania, Defendants-Appellants.
Filed March 26, 2018
Appeals from the United States District Court for the Southern District of Texas, USDC No. 4:15-CV-1555
Attorneys & Firms
Michael Patrick Morris, Danny L. Van Winkle, Counsel, Tekell, Book, Allen & Morris, L.L.P., Houston, TX, William Feldman, Attorney, Haynes & Boone, L.L.P., New York, NY, Lynne Liberato, Haynes & Boone, L.L.P., Houston, TX, Ernest Martin, Jr., Micah Ethan Skidmore, Haynes & Boone, L.L.P., Dallas, TX, for Plaintiff-Appellee
Harold Kemler Watson, Chaffe McCall, L.L.P., Houston, TX, for Defendant-Appellant Starr Indemnity & Liability Insurance Company
Darin Lee Brooks, John Gregory George, Jr., Esq., Kristen W. Kelly, Brian Edward Waters, Gray Reed & McGraw, L.L.P., Houston, TX, for Defendants-Appellants National Union Insurance Company of Pittsburgh, Pennsylvania, Insurance Company of the State of Pennsylvania
Before SMITH, OWEN, and HIGGINSON, Circuit Judges.
*350 Two employees of an Exxon Mobil Corp. (Exxon) contractor were injured while working at an Exxon refinery. After one of the employees filed suit in Texas state court (Roberts), Exxon impleaded The Insurance Company of the State of Pennsylvania (ICSOP), which insured Exxon’s contractor against workers’ compensation claims, and sought a declaratory judgment that ICSOP had contractually waived its subrogation rights. ICSOP counterclaimed, seeking declaratory and monetary relief for claims related to its subrogation rights. While this suit was pending, Exxon filed another suit in Texas state court (Starr), asserting the same claim against ICSOP as well as claims against Starr Indemnity & Liability Insurance Company (Starr Indemnity), and National Union Insurance Company of Pittsburgh, Pennsylvania (National Union) (collectively, Insurers). The insurance companies attempted to remove Starr to federal court, but because Exxon’s claim against ICSOP arose under Texas workers’ compensation law, 28 U.S.C. § 1445(c) prohibited removal and the federal district court remanded.
The Texas state trial court in Roberts then issued a judgment in favor of Exxon on its impleader claim against ICSOP, after which ICSOP again sought to remove Starr to federal district court. The district court denied Exxon’s subsequent motion to remand, holding that the res judicata effect of the state trial court judgment in Roberts “dissolved” Exxon’s non-removable claim against ICSOP. Approximately one year after this second removal, however, a Texas appellate court reversed the state court’s judgment in Roberts and remanded for further proceedings.1 The district court reasoned that the state appellate judgment “revived” the non-removable claim and divested the district court of subject matter jurisdiction, and therefore the district court remanded the case to state court.
The Insurers now appeal that remand order. Exxon moves to dismiss for lack of appellate jurisdiction. For the following reasons, we conclude that we lack jurisdiction over the appeal and therefore grant Exxon’s motion to dismiss.
The Insurers have the burden of establishing this court’s jurisdiction over this appeal.2 Generally, under 28 U.S.C. § 1447(d), “[a]n order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise.”3 Appellate review is available only if the district court “clearly and affirmatively” invokes a ground for remand not specified in 28 U.S.C. § 1447(c).4 Under § 1447(c), *351 remand is required for lack of subject matter jurisdiction and permitted if the plaintiff makes “[a] motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction ... within 30 days after the filing of the notice of removal.”5 Section 1447(d)’s reviewability bar therefore does not apply to cases in which the plaintiff moved for remand, based on a procedural defect in removal, more than thirty days after the filing of the notice of removal.6 Under 28 U.S.C. § 1445(c), claims arising under the forum state’s workers’ compensation laws “may not be removed to any district court of the United States,”7 but “[a] statutory restriction against removal like the one in § 1445(c) is a defect in removal procedure under § 1447(c),” not a jurisdictional defect.8 This court must constrain its threshold jurisdictional review to a determination of “what the district court perceived it was doing, as ‘no matter how erroneous,’ a remand order based on a § 1447(c) ground precludes review on appeal.”9
The Insurers argue that the district court, despite stating that it “must remand” for lack of subject matter jurisdiction, actually based its remand on the revival of the claim asserted against ICSOP arising under Texas’s workers’ compensation laws. They assert, correctly, that the presence of the revived claim is a procedural defect in removal outside the scope of § 1447(c) because Exxon did not raise it in a remand motion within thirty days of the removal.10 The Insurers, however, cannot evade the reviewability bar of § 1447(d) by establishing this defect.
In its order, the district court repeatedly invoked its perceived lack of subject matter jurisdiction as the basis for the remand. It is clear that the district court believed the presence of a claim arising under Texas’s workers’ compensation laws deprived it of jurisdiction. Indeed, each passage from the district court’s order to which the Insurers point as a clear and affirmative statement of a non-§ 1447(c) ground in fact expressly invokes that court’s perceived lack of subject matter jurisdiction. This belief, however erroneous, “sufficiently cloaks the remand order in the § 1447(c) absolute immunity from review” and ends the inquiry.11
* * *
For the foregoing reasons, the appeal is DISMISSED for want of jurisdiction.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
Ins. Co. of the State of Pa. v. Roberts, 506 S.W.3d 498, 508 (Tex. App.—Houston [1st Dist.] 2016, pet. denied, reh’g of pet. for review filed).
See Ernewayn v. Home Depot U.S.A., Inc., 727 F.3d 369, 370 (5th Cir. 2013).
28 U.S.C. § 1447(d).
Brookshire Bros. Holding, Inc. v. Dayco Prods., Inc., 554 F.3d 595, 600 (5th Cir. 2009); accord Certain Underwriters at Lloyd’s, London v. Warrantech Corp., 461 F.3d 568, 572 (5th Cir. 2006) (“Our inquiry is guided by a clear statement requirement: for a remand order to be reviewable on appeal, the district court must ‘clearly and affirmatively’ state a non-§ 1447(c) ground for remand.”).
28 U.S.C. § 1447(c).
FDIC v. Loyd, 955 F.2d 316, 320-21 (5th Cir. 1992).
28 U.S.C. § 1445(c).
Ernewayn v. Home Depot U.S.A., Inc., 727 F.3d 369, 371 (5th Cir. 2013) (alteration in original) (quoting 398 Fed.Appx. 980, 982 (5th Cir. 2010) (unpublished) (per curiam) ).
Warrantech, 461 F.3d at 573 (quoting Arnold v. State Farm Fire and Cas. Co., 277 F.3d 772, 775 (5th Cir. 2001) ); accord In re Bissonnet Invs. LLC, 320 F.3d 520, 524 (5th Cir. 2003) (“[Section] 1447(d) precludes all review of decisions to remand when based on a perceived lack of subject matter jurisdiction, even if the district court erroneously believes it lacks jurisdiction.”).
See Ernewayn, 727 F.3d at 371.
Tillman v. CSX Transp., Inc., 929 F.2d 1023, 1028 (5th Cir. 1991).
United States Court of Appeals, Fifth Circuit.
Trent S. GRIFFIN, Sr., Plaintiff-Appellant
AMERICAN ZURICH INSURANCE COMPANY; Walgreens Company; Greg Wasson, Chief Executive Officer; Jim Reilly, Sr., Director Human Resources; Chester Stevens, District Manager; Januari Lewis, Pharmacy Supervisor; Jerry Padilla, Pharmacy Supervisor; Felicia Felton, Store Manager; Jerline Washington, Pharmacy Manager; Vanessa Strong, Store Manager; Miranda Martinez, Pharmacy Technician; Daravanh Khanmanivanh, Pharmacy Technician; Texas Department of Insurance, Division of Workers’ Compensation; Ryan Brannan, Texas Workers’ Compensation Commissioner; Rod Bordelon, in his individual capacity; Greg Abbott, Governor, State of Texas and in his individual capacity; Rick Perry, in his individual capacity; Ken Paxton, Attorney General; Henry Whitman, Jr., Commissioner C.P.S.; Stephen McKenna, Child Support Officer; Mark Iverson, Authorized Agent; Wells Fargo Bank; Andrew Cole, Designated Doctor; Nicole Bush, Market Scheduler; Valerie Rivera, Ombudsman; Thomas Hight, Hearing Officer; Texas Department of Family and Protective Services, Defendants-Appellees
Filed June 6, 2017
REVISED June 8, 2017
*794 Appeal from the United States District Court for the Northern District of Texas, USDC No. 3:14-CV-2470
Attorneys & Firms
Trent S. Griffin, Sr., Pro Se
Blair Dancy, Cain & Skarnulis, P.L.L.C., Austin, TX, Laura Judith Grabouski, Buchanan Grabouski, L.L.P., Austin, TX, for Defendant-Appellee American Zurich Insurance Company
Buena Vista Lyons, Esq., FordHarrison, L.L.P., Dallas, TX, for Defendants-Appellees Walgreens Company, Greg Wasson, Jim Reilly, Sr., Chester Stevens, Januari Lewis, Jerry Padilla, Felicia Felton, Jerline Washington, Vanessa Strong, Miranda Martinez, Daravanh Khanmanivanh, Nicole Bush
Eric Alan Hudson, Assistant Attorney General, Office of the Attorney General for the State of Texas, Austin, TX, for Defendants-Appellees Texas Department of Insurance, Rod Bordelon, Rick Perry, Greg Abbott, Stephen McKenna, Mark Iverson, Andrew Cole, Thomas Hight, Texas Department of Family and Protective Services, Ken Paxton, Ryan Brannan, Henry Whitman, Jr.
*795 Shayne Daniel Moses, Alyson Cori Halpern, David A. Palmer, Esq., Moses, Palmer & Howell, L.L.P., Fort Worth, TX, for Defendant-Appellee Wells Fargo Bank
Before REAVLEY, HAYNES and COSTA, Circuit Judges.
Pro se Plaintiff Trent S. Griffin appeals the district court’s dismissal of his claims against various defendants stemming from an alleged conspiracy which resulted in, inter alia, a foreclosure on his home and the garnishment of his veteran’s benefits. We AFFIRM.
Plaintiff Trent S. Griffin, proceeding pro se, initially filed suit to assert claims of violations of his rights, inter alia, under: the First, Fourth, Fifth, Thirteenth, and Fourteenth Amendment rights; Title VII of the Civil Rights Act of 1964; the Americans with Disabilities Act (“ADA”); the Age Discrimination in Employment Act; and 38 U.S.C. § 5301. These claims are made against four groups of defendants: (1) American Zurich Insurance Company; (2) Walgreens Company and various employees (collectively, “Walgreens”);1 (3) Wells Fargo Bank; and (4) the Texas Department of Insurance, the Texas Department of Family and Protective Services, and various employees of the state of Texas (“State Defendants”).2 Griffin’s claims appear to stem from various events, including: (a) a determination by American Zurich concerning an injury suffered during his employment at Walgreens, (b) alleged discrimination, retaliation, harassment, and a hostile work environment during his employment at Walgreens, (c) Wells Fargo’s foreclosure on his house and garnishment of his veteran’s benefits, and (d) some sort of dispute over custody and child care payments ordered by the State Defendants.
Griffin’s complaint generated a flurry of activity, with the defendants filing motions to dismiss, Griffin filing out-of-time amended complaints and motions for summary judgment, and the defendants filing motions to strike in response to these amended complaints. The district court eventually denied most of these motions and re-set the litigation process by ordering Griffin to file a new amended complaint. Once Griffin filed his new amended complaint, American Zurich, Walgreens, and the State Defendants filed a motion to dismiss the amended complaint, while Wells Fargo filed an answer and then subsequently filed a motion to dismiss. The district court individually granted all four motions to dismiss and entered final judgment in favor of each of the groups of defendants. Griffin filed motions for new trials against each of the groups of defendants, which were subsequently denied in an electronic order. Griffin now appeals.
We review de novo a district court’s dismissal for either lack of subject matter jurisdiction or failure to state a claim. *796 Ctr. for Biological Diversity, Inc. v. BP Am. Prod. Co., 704 F.3d 413, 421 (5th Cir. 2013). When evaluating a motion to dismiss for failure to state a claim, we accept all well-pleaded facts as true and view those facts in the light most favorable to the plaintiff. Priester v. JP Morgan Chase Bank, N.A., 708 F.3d 667, 672 (5th Cir. 2013). We will deny such a motion if the complaint contains sufficient factual matter which, if accepted as true, states a plausible claim for relief. Id. (citing Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)). As for a motion to dismiss for lack of subject matter jurisdiction, a district court can resolve factual disputes “to the extent necessary to determine jurisdiction” and, based upon such facts, we then determine whether the district court correctly applied the law. See Smith v. Reg’l Transit Auth., 756 F.3d 340, 346 (5th Cir. 2014).
Griffin’s appeal also challenges the manner in which the district court handled the various motions filed in his case. The management of a district court’s docket is reviewed for an abuse of discretion. Fin. Acquisition Partners LP v. Blackwell, 440 F.3d 278, 291 (5th Cir. 2006).
Griffin’s sprawling, ninety-seven page appeal attempts to revisit most of the decisions of the district court in dismissing his claims. Our review, however, finds that the order appealed must be affirmed for substantially the same reasons given by the district court. We briefly address the discernable arguments made by Griffin both as to the district court’s general handling of his case and to the specific claims against each group of defendants.
A. The District Court’s Management of Griffin’s Case
Griffin lodges two types of arguments against the district court’s management of his claims. First, Griffin repeatedly argues that, as a pro se plaintiff, the district court was under an obligation to liberally construe his complaints and failed to do so. Griffin is correct on the law, but we conclude that the district court here liberally construed Griffin’s amended complaint. “We hold pro se plaintiffs to a more lenient standard than lawyers when analyzing complaints, but pro se plaintiffs must still plead factual allegations that raise the right to relief above the speculative level.” Chhim v. Univ. of Tex. at Austin, 836 F.3d 467, 469 (5th Cir. 2016) (per curiam), cert. denied, ––– U.S. ––––, 137 S.Ct. 1339, 197 L.Ed.2d 529 (2017). Griffin’s amended complaint, even under a liberal construction, failed to raise anything more than speculative claims. The district court was correct to grant dismissal even granting a liberal interpretation of Griffin’s amended complaint.3
Griffin also argues that the district court abused its discretion in managing his case. Griffin alleges that errors by the district court include: not allowing Griffin to initially amend his complaint, not requiring defendants to respond to his motion for partial summary judgment, not converting motions to dismiss his amended complaint *797 into motions for summary judgment, forcing Griffin to respond to “untimely” motions to dismiss his amended complaint, and ultimately granting these untimely motions. We disagree. The district court did not abuse its discretion when it gave Griffin leave to file an amended complaint. Once filed, that amended complaint rendered all earlier motions, including Griffin’s motion for partial summary judgment, moot. See King v. Dogan, 31 F.3d 344, 346 (5th Cir. 1994). Similarly, Griffin’s claims that the motions to dismiss his amended complaint were untimely also fail given his request to refile his amended complaint. The subsequent motions to dismiss were all timely based on this refiling. See FED. R. CIV. P. 12(a)(1)(i). The district court did not abuse its discretion.
B. Claims Against American Zurich
Griffin’s appeal argues that the district court erred when it dismissed his claims against American Zurich based on res judicata. Griffin is incorrect: res judicata bars his claim. We note that Texas, not federal, res judicata applies to Griffin’s claim before the district court, as the preclusive opinion comes from a state court. See Cox v. Nueces Cty., 839 F.3d 418, 421 & n.3 (5th Cir. 2016). But even though the district court incorrectly applied the federal res judicata standard, its analysis nonetheless supports a finding of res judicata under Texas law.
In Texas, res judicata requires: (1) a prior final judgment on the merits by a court of competent jurisdiction; (2) identity of parties or those in privity with them; and (3) a second action based on claims that were raised or could have been raised in the first action. See Cox, 839 F.3d at 421. The district court determined that the parties were identical, that a court of competent jurisdiction rendered a final judgment on the merits, and that Griffin based both actions on the same nucleus of operative facts. These determinations support a conclusion that res judicata barred this claim under Texas law, and we therefore affirm the district court as to Griffin’s claims against American Zurich.
C. Claims Against Walgreens
Griffin’s appeal as to Walgreens appears to only challenge the district court’s determination that his ADA claim failed because he failed to identify any major life activities that are substantially limited by an impairment. Griffin raises no new arguments to this issue, however, and our review of his complaint reveals that his pleadings on this specific point contain no facts about how his impairment affects him major life activities. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Without pleading facts of how his major life activities were limited, Griffin cannot state a sufficient claim to a claim under the ADA. Hale v. King, 642 F.3d 492, 499–501 (5th Cir. 2011) (per curiam). Griffin raises no other issues on appeal as to Walgreens. We therefore hold that the district court correctly dismissed all claims against Walgreens.
D. Claims Against Wells Fargo Bank
Wells Fargo was the only party to file an answer to Griffin’s amended complaint before filing its motion to dismiss. Griffin argues in his appeal that the district court improperly handled Wells Fargo’s motion, but the district court correctly converted the motion to dismiss into a motion for judgment on the pleadings and ruled on that motion. See Jones v. Greninger, 188 F.3d 322, 324 (5th Cir. 1999).
*798 Griffin’s substantive arguments as to Wells Fargo on appeal concern (1) the procedure surrounding Wells Fargo’s placement of child support liens on his accounts and (2) the foreclosure of his home. None of these arguments is persuasive. Griffin provides no law to support his allegations that Wells Fargo was required to provide notice before placing the liens on his accounts, and our review of potentially applicable law reveals that Griffin’s complaint is devoid of factual allegations that could potentially support a claim. As to Griffin’s foreclosure claim, wrongful foreclosure in Texas requires a plaintiff to plead that there was (1) a defect in the foreclosure, (2) a grossly inadequate selling price, and (3) a causal connection between the two. See Villarreal v. Wells Fargo Bank, N.A., 814 F.3d 763, 767–68 (5th Cir. 2016). Assuming arguendo that Griffin’s complaint pleads a defect in the foreclosure, Griffin pleaded neither that the selling price was inadequate nor that the inadequate selling price was caused by that defect. See Martins v. BAC Home Loans Serv., L.P., 722 F.3d 249, 256 (5th Cir. 2013) (per curiam). Accordingly, the district court was correct to grant Wells Fargo judgment on the pleadings on all claims asserted by Griffin.
E. Claims Against State Defendants
Griffin’s appeal as to the State Defendants attacks various aspects of the district court order dismissing his claims on the basis of, inter alia, sovereign immunity, qualified immunity, the Rooker-Feldman doctrine, and Griffin’s failure to state a claim. None of his arguments on appeal is persuasive.
As an initial matter, Griffin offers no response to the district court’s determinations on immunity. We discern no error in the district court’s analysis of this matter. Griffin repeats his claims that, under 38 U.S.C. § 5301, the State Defendants improperly garnished his veteran’s benefits. But the Supreme Court has stated that § 5301 does not protect veteran’s benefits from order or garnishment based on a failure to pay child support. See Rose v. Rose, 481 U.S. 619, 630–34, 107 S.Ct. 2029, 95 L.Ed.2d 599 (1987); see also Mansell v. Mansell, 490 U.S. 581, 587, 109 S.Ct. 2023, 104 L.Ed.2d 675 (1989) (“Because domestic relations are preeminently matters of state law, we have consistently recognized that Congress, when it passes general legislation, rarely intends to displace state authority in this area.”). Griffin’s arguments as to the applicability of the Rooker-Feldman doctrine also ring hollow: Griffin’s complaint merely attempts to challenge a state court decision under the guise of federal claims. See Richard v. Hoechst Celanese Chem. Grp., Inc., 355 F.3d 345, 351–52 (5th Cir. 2003).
As a final matter, Griffin repeatedly argues on appeal that the district court improperly set aside a default against one individual State Defendant, Valerie Rivera. Griffin is incorrect. Rivera was not properly served with Griffin’s original complaint, a fact the district court noted when it granted Griffin leave to amend his complaint. Griffin fails to demonstrate that he served the amended complaint on Rivera: the summons he relies upon for his claim that service to Rivera was completed was returned months before Griffin filed his amended complaint. This summons therefore could not have included the amended complaint. As such, the district court did not err in dismissing all claims against the State Defendants.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
These defendants are Greg Wasson, Jim Reilly, Sr., Chester Stevens, Januari Lewis, Jerry Padilla, Felicia Felton, Jerline Washington, Vanessa Strong, Miranda Martinez, and Daravanh Khanmanivanh.
These defendants are Ryan Brannan, Rod Bordelon, Greg Abbott, Rick Perry, Ken Paxton, Henry Whitman, Jr., Stephen McKenna, Mark Iverson, Andrew Cole, Nicole Bush, Valerie Rivera, and Thomas Hight.
Griffin also alleges that the district court incorrectly interpreted his claims by not considering his allegations of a greater conspiracy by all four groups of defendants. Griffin’s statement appears to be in reference to his claims under 42 U.S.C. § 1985. But that statute does not create any substantive rights and requires a separate violation of Griffin’s rights to support a conspiracy claim. See Miss. Woman’s Med. Clinic v. McMillian, 866 F.2d 788, 794 (5th Cir. 1989). Because the district court found that Griffin failed to plead any violation of his substantive rights, it naturally follows that Griffin failed to plead a conspiracy to violate those rights, and the district court was correct to dismiss this claim.
United States Court of Appeals, Fifth Circuit.
Randy J. AUSTIN, Plaintiff-Appellant
KROGER TEXAS, L.P., doing business as Kroger Store #209, Defendant-Appellee
Filed April 14, 2017
*327 Appeal from the United States District Court for the Northern District of Texas, USDC No. 3:11-CV-1169
Attorneys & Firms
Matthew J. Kita, Dallas, TX, for Plaintiff-Appellant
Donna C. Peavler, Bryan Kyle Briscoe, Peavler Group, P.C., Grapevine, TX, Kimberly Paige Harris, Beasley, Hightower & Harris, P.C., Dallas, TX, for Defendant-Appellee
Before WIENER, DENNIS, and HAYNES, Circuit Judges.
Randy J. Austin appeals the district court’s (1) denial of his motion to reconsider an order denying leave to file a surreply and (2) grant of summary judgment to Kroger Texas, L.P., on his ordinary negligence/necessary instrumentalities claim. The district court, in one memorandum opinion and order, both denied the motion to reconsider for Austin’s failure to satisfy Federal Rule of Civil Procedure 59(e) and granted summary judgment in favor of Kroger on three independent grounds. For the reasons explained below, we REVERSE in part, VACATE in part, and REMAND the case for further proceedings consistent with this judgment, as more fully explained below.
Plaintiff-Appellant Randy J. Austin was a long-time employee of Defendant-Appellee Kroger Texas, L.P., working for the company in various positions since 1997. In 2008, Austin became a “utility clerk” at the Kroger store in Mesquite, Texas. His responsibilities included bagging groceries, consolidating carts, and sweeping, mopping, and cleaning the store’s restrooms.
On the morning of July 27, 2009, other employees of the Kroger store at which Austin worked performed an annual cleaning of the store’s condenser units, housed on the roof, or “mezzanine level,” of the building. This process involved Kroger employees power-washing the condensers, which resulted in a “brownie oily looking substance” leaking through the store’s ventilation ducts and creating spills in both the men’s and women’s restrooms. Austin’s supervisor directed him to clean up “whatever mess” the condenser cleaning made. Austin had never worked on a day when the condensers had been power-washed and was, therefore, unfamiliar with the liquid he was to clean up.
Kroger’s safety handbook recommends that store management make certain that a cleaning product called “Spill Magic” is adequately supplied at all times. Spill Magic is a powdery absorbent that allows a liquid spill to be cleaned with a broom and dustpan. Normally, Austin’s utility cart, which Kroger provided, included Spill Magic. On the day the store cleaned its condenser units, however, Kroger did not have any Spill Magic available for Austin to use. Austin instead attempted to clean *328 up the liquid with a dry mop. He successfully cleaned a small puddle in the women’s restroom and then proceeded to clean the men’s restroom, where the brownish liquid covered about eighty percent of the floor. Austin placed “wet floor” signs around the area and carefully took “baby steps” as he moved throughout the spill. After successfully cleaning thirty to forty percent of the spill in the men’s restroom, Austin slipped in the remaining liquid and fell, fracturing his femur and dislocating his hip. As a result of his injuries, Austin spent nine months in the hospital and underwent six surgeries, leaving his left leg two inches shorter than his right leg.
Austin originally filed the underlying lawsuit against Kroger in June 2011 in state court, seeking damages for the injuries that he suffered as a result of his slip and fall. He alleged causes of action against Kroger for premises liability, gross negligence, and ordinary negligence. In support of his ordinary negligence claim, Austin alleged two different theories of liability: Kroger had (1) engaged in negligent activities and (2) failed to provide Austin a “necessary instrumentality” to perform his job safely—specifically, Spill Magic.
Kroger removed the case to federal district court, and this court ultimately affirmed the district court’s grant of summary judgment on Austin’s premises liability, gross negligence, and ordinary negligence/negligent activities claims. However, because the district court failed to consider Austin’s ordinary negligence/necessary instrumentalities claim, we remanded the case to that court so that it could consider that claim in the first instance. See Austin v. Kroger Texas, L.P., 614 Fed.Appx. 784 (5th Cir. 2015).
Following our remand, Kroger moved for summary judgment on Austin’s ordinary negligence/necessary instrumentalities claim. After the close of summary judgment briefing, but before summary judgment was granted, Austin moved for reconsideration of his previously denied motion for leave to file a surreply. Attached to that motion was an expert report on causation, which Austin claimed would establish a material issue of fact as to causation. Although the expert report was first filed with the district court in Austin’s motion for reconsideration, it had previously been provided to Kroger about a week before Kroger filed its summary judgment motion. A few weeks after Austin moved for reconsideration, the district court—in the same memorandum opinion and order—both denied Austin’s motion for reconsideration and granted Kroger’s motion for summary judgment. Austin timely appealed both rulings.
II. Standard of Review
This court reviews de novo a district court’s grant of summary judgment, applying the same standard as the district court. Ford Motor Co. v. Tex. Dep’t of Transp., 264 F.3d 493, 498 (5th Cir. 2001). Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). “A genuine issue of material fact exists when the evidence is such that a reasonable jury could return a verdict for the non-moving party.” Gates v. Tex. Dep’t of Protective & Regulatory Servs., 537 F.3d 404, 417 (5th Cir. 2008) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). “The court need consider only the cited materials, but it may consider other materials in the record.” FED. R. CIV. P. 56(c)(3). All evidence is viewed in the light most favorable to the nonmoving party and all reasonable inferences *329 are drawn in that party’s favor. Crawford v. Formosa Plastics Corp., La., 234 F.3d 899, 902 (5th Cir. 2000).
This court reviews the district court’s denial of a motion for reconsideration for an abuse of discretion. Calpetco 1981 v. Marshall Exploration, Inc., 989 F.2d 1408, 1414 (5th Cir. 1993). “A trial court abuses its discretion when its ruling is based on an erroneous view of the law or a clearly erroneous assessment of the evidence.” United States v. Yanez Sosa, 513 F.3d 194, 200 (5th Cir. 2008) (quoting United States v. Ragsdale, 426 F.3d 765, 774 (5th Cir. 2005)).
The district court articulated three independent grounds for granting Kroger’s summary judgment motion on Austin’s ordinary negligence/necessary instrumentalities claim: (1) Kroger had no duty to provide Spill Magic because Austin failed to create a genuine issue of material fact as to whether Spill Magic was a necessary instrumentality; (2) Kroger had no duty to provide Austin with a necessary instrumentality while he was performing “customary work”; and (3) Austin failed to create a genuine issue of material fact as to whether Kroger’s failure to provide Spill Magic caused his injuries. The district court also denied Austin’s motion for reconsideration because it failed to satisfy the requirements of Federal Rule of Civil Procedure 59(e). We address each ground for summary judgment in turn, and discuss the denial of Austin’s motion for reconsideration within the discussion on causation.
A. Issue of Material Fact as to Whether Spill Magic was a Necessary Instrumentality
The district court first concluded that Kroger did not owe Austin a duty to provide Spill Magic because Austin’s evidence did not create a material fact issue about whether Spill Magic was necessary for the safe performance of his job. Because there is a genuine issue of material fact as to whether Spill Magic was necessary to the safe performance of Austin’s job, summary judgment was not appropriate on this ground.
Under Texas law, an employer has a duty to “provide needed safety equipment” to employees. Kroger Co. v. Elwood, 197 S.W.3d 793, 794 (Tex. 2006); see also Martinez v. Delta Brands, Inc., 515 S.W.2d 263, 265 (Tex. 1974) (“[T]he employer [has a duty] to furnish equipment adequate to enable an employee safely to do a job[.]”). However, employers have “no duty to provide equipment or assistance that is unnecessary to the job’s safe performance.” Elwood, 197 S.W.3d at 795.
In Allsup’s Convenience Stores, Inc. v. Warren, a Texas Court of Appeals considered several factors relevant to determining that an instrumentality was not necessary for the safe performance of an employee’s job: (1) the employee had never requested the instrumentality in question; (2) the employee had not complained that the task she was performing was unsafe; (3) the employee had safely performed the task in the past without injury; (4) there was no evidence that the instrumentality “was commonly used in, or had been established by industry standards or customs as a safety measure for” her job; (5) there was no evidence that “a reasonably prudent employer would have provided such instrumentality”; and (6) there was no medical evidence that the instrumentality would have prevented the employee’s injury. 934 S.W.2d 433, 438 (Tex. App.—Amarillo 1996, writ denied). Here, the district court applied those factors and determined that there was no evidence from *330 which a reasonable jury could conclude that Spill Magic was a necessary instrumentality for the safe performance of Austin’s job.
Applying the Allsup’s factors, we hold that there is a material fact issue as to whether Spill Magic was a necessary instrumentality, specifically pertaining to the fourth and fifth Allsup’s factors. See id. Austin testified that whenever he “arrived at a wet spill that had oil or water on the ground,” he would use Spill Magic to clean up the mess. Austin also testified that Spill Magic is “effective”1 when cleaning spills and that it was customarily provided by Kroger for Austin to use. The store manager at the time of Austin’s injury admitted that Spill Magic was an important part of the safety practice at the store. There was also record evidence that Kroger’s handbook instructed store management to “make certain that the Spill Magic Spill Response Stations [were] adequately supplied at all times” and available in numerous places throughout the store, in part because Kroger believed that Spill Magic reduced the likelihood of slip and falls by 25%.2 This evidence, when viewed in the light most favorable to Austin, creates genuine issues of material fact as to whether (1) “the instrumentality was commonly used ... as a safety measure” and (2) “a reasonably prudent employer would have provided such instrumentality.”3 See id.
Kroger places undue emphasis on the fact that, immediately before the accident, Austin had successfully cleaned a spill of the same type of liquid in the women’s restroom with a dry mop. Kroger argues that this evidence demonstrates that a dry mop was adequate to safely clean this type of spill, and therefore Spill Magic was unnecessary. However, the fact that Austin had successfully cleaned a much smaller spill in the women’s restroom with a dry mop does not conclusively demonstrate that Spill Magic was not necessary for Austin to safely clean a much larger and more serious spill in the men’s restroom.4
In sum, when we view the evidence in the light most favorable to Austin, there is a genuine issue of material fact as to whether Spill Magic was a necessary instrumentality *331 for the safe performance of Austin’s job. Therefore, summary judgment on this ground was inappropriate.
B. Duty to Provide Necessary Instrumentalities for an Employee’s Customary Work
The district court next determined that an employer does not have a duty to protect an employee from injury when the employee is engaged in the “customary work” of someone in that line of employment. Moreover, the district court concluded that an employee’s injuries sustained during the performance of his customary work are unforeseeable as a matter of law. Accordingly, after finding that Austin’s injuries occurred during the performance of his customary work, the district court concluded that Kroger could not be liable for Austin’s injuries.
Under Texas law, “[t]he existence of a legal duty is a question of law for the court to decide from the facts surrounding the occurrence in question.” Military Highway Water Supply Corp. v. Morin, 156 S.W.3d 569, 572 (Tex. 2005) (alteration in original) (quoting City of McAllen v. De La Garza, 898 S.W.2d 809, 810 (Tex. 1995)). When determining whether a defendant is under a legal duty, “foreseeability of the risk ‘is the foremost and dominant consideration.’ ” City of Waco v. Kirwan, 298 S.W.3d 618, 624 (Tex. 2009) (quoting Greater Hous. Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990)). There is no question that, under Texas law, an employer is under a general duty to provide its employees with necessary instrumentalities to safely perform their work. Austin v. Kroger Texas, L.P., 465 S.W.3d 193, 215 (Tex. 2015) (“Austin’s instrumentalities claim invokes ... the duty to furnish reasonably safe equipment necessary for performance of the job.”). The only question here is whether the scope of that duty extends to an employee’s customary work. Because we conclude that (1) employees may recover for injuries sustained during their customary work when their employers do not subscribe to the Texas Workers’ Compensation (“TWC”) Act and fail to provide necessary instrumentalities, and (2) Austin’s slip and fall would be a foreseeable consequence of failing to provide necessary equipment to safely cleanup spills, summary judgment is not appropriate on this ground.
“Texas allows employers to opt out of its workers’ compensation program. Tex. Lab. Code § 406.002(a). ‘But the state makes that choice an unattractive one.’ ” Austin v. Kroger Tex. L.P., Hook v. Morrison Milling Co., 406.033(a); see also Austin, 746 F.3d at 197–98 (noting that the TWC Act “vests employees of non-subscribing employers with the right to sue their employers for work-related injuries or death”). The Code defines “course and scope of employment” broadly, so as to include the performance of
an activity of any kind or character that has to do with and originates in the work, business, trade, or profession of the employer and that is performed by an employee while engaged in or about the furtherance of the affairs or business of the employer.
TEX. LAB. CODE § 401.011(12) (emphasis added). This broad definition of “course and scope of employment” notably does *332 not include any exceptions for routine jobs or tasks performed as part of an employee’s “customary work.” Therefore, under the plain text of the TWC Act, an employee of a nonsubscribing employer may recover damages for personal injuries sustained while performing an activity “that has to do with and originates in the work, business, trade, or profession of the employer,” even if that activity is customary or routine. See id. at §§ 401.011(12) & 406.033(a).
The district court relied on the Supreme Court of Texas’s decisions in Great Atlantic & Pacific Tea Co. v. Evans, 142 Tex. 1, 175 S.W.2d 249 (1943), Werner v. Colwell, 909 S.W.2d 866 (Tex. 1995), and Kroger Co. v. Elwood, 197 S.W.3d 793 (Tex. 2006) to nevertheless conclude that a nonsubscribing employer does not have any duty to protect an employee from injury while engaged in the “customary work” required of someone in that line of employment. But these three cases only stand for the general proposition that an employer cannot be liable for breaching its duty to an employee by merely requiring the employee to perform his usual and customary work with the instrumentalities necessary to safely perform the job. See Elwood, 197 S.W.3d at 794 (“[T]here is no evidence that additional equipment or assistance were needed to perform Elwood’s job safely.”); Werner, 909 S.W.2d at 869 (“[T]here is no evidence that two employees constituted an inadequate work force to do the required loading.”); Evans 175 S.W.2d at 251 (holding that an employer did not breach its duty by requiring a stock boy to perform his customary work in accordance with industry practice and prior performance). Instead, as relevant to this case, because the employer has a duty to provide necessary instrumentalities but not unnecessary instrumentalities, the employee must show that the employer failed to provide instrumentalities to the employee that were necessary for the safe performance of the employee’s customary work. See, e.g., Elwood, 197 S.W.3d at 794–95.
Evans, Werner, and Elwood do not abrogate an employer’s “well-established non-delegable and continuous duty to furnish reasonably safe instrumentalities with which its employees are to work” when the employee is performing his customary job duties. Katy Springs & Mfg., Inc. v. Favalora, 476 S.W.3d 579, 589 (Tex. App.—Houston [14th Dist.] 2015, pet. denied) (citing Farley v. M M Cattle Co., 529 S.W.2d 751, 754 (Tex. 1975), overruled on other grounds, Parker v. Highland Park, Inc., 565 S.W.2d 512 (Tex. 1978)). Moreover, we are unaware of any case or statute saying that nonsubscribing employers are obligated to provide necessary instrumentalities only when their employees are performing irregular tasks. Were we to recognize such a rule, it would lead to absurd results.6 For example, employers of hazardous material removal workers would have no duty to provide masks or hazmat suits to employees removing asbestos, lead-based paint, or even radioactive materials, but would have a duty to provide those same employees with necessary instrumentalities for less hazardous tasks outside the normal scope of their employment.
Whether there is evidence of a breach of such duty is a different matter, but it cannot be, as the district court determined and as Kroger argues on appeal, that there is no duty at all when the employee is engaged in his routine job. See *333 Martinez, 515 S.W.2d at 265 (“The duty of the master is at all times to exercise ordinary care to furnish for the use of the servant safe and suitable machinery and appliances with which the servant is to do his work.” (emphasis added) (quoting Currie v. Mo., Kan. & Tex. Ry. Co., 101 Tex. 478, 108 S.W. 1167, 1169 (1908))); see also Austin, 465 S.W.3d at 216 (“As Austin’s employer, Kroger owed Austin ... the duty to provide [him] with necessary instrumentalities.”). Indeed, specific instrumentalities are surely necessary for the safe performance of ordinary, routine jobs. See, e.g., Martinez, 515 S.W.2d at 264–66 (holding that there was some evidence to support a finding that an employer breached its duty to provide necessary instrumentalities to a welder when it failed to provide the employee with appropriate clamps for a welding job); Kroger Co. v. Milanes, 474 S.W.3d 321, 339 (Tex. App.—Houston [14th Dist.] 2015, no pet.) (affirming judgment that an employer breached its duty to provide necessary instrumentalities to a “meat cutter” when it provided a dull blade to the employee); Springs, 476 S.W.3d at 586, 589 (affirming judgment that an employer breached its duty to provide necessary instrumentalities to a manufacturing employee when it provided a defective manufacturing machine).
We likewise do not agree that an employee’s injuries sustained during the performance of his customary work is unforeseeable as a matter of law when the employer failed to provide necessary instrumentalities to the employee. Under Texas law, “[f]oreseeability means that an actor, as a person of ordinary intelligence, should have anticipated the dangers that his negligent act created for others.” Alcoa, Inc. v. Behringer, 235 S.W.3d 456, 460 (Tex. App.—Dallas 2007, pet denied). Texas courts “have consistently held that foreseeability turns on existence of a general danger, not awareness of the exact sequence of events that produces the harm.” Nabors Well Servs., Ltd. v. Romero, 456 S.W.3d 553, 565 (Tex. 2015) (citing Mellon Mortg. Co. v. Holder, 5 S.W.3d 654, 655 (Tex. 1999) (plurality) (collecting cases)).
The general danger created by failing to provide necessary instrumentalities is obvious to any person of ordinary intelligence, and it is not dependent on whether the employee is performing customary work. Cf. id. (explaining that there is a duty to guard against the risks of driving because “[t]he general danger of driving is obvious to everyone,” and thus foreseeable). If an instrumentality is necessary for the safe performance of an employee’s job, the employee’s risk of suffering injuries related to those safety concerns necessarily increases when the employer fails to provide the necessary instrumentality. See, e.g., Milanes, 474 S.W.3d at 329, 339 (breaching duty to provide necessary instrumentalities when a dull saw blade caused meat to jump and pull an employee’s hand into a band saw and “the probability of meat jumping or rolling increases when the saw’s blade is dull”). Contrary to Kroger’s assertion, under these circumstances, the employer is not reasonable in expecting the work to proceed like every other day without injury, particularly when the necessary instrumentality is normally provided every other day.
Here, Kroger normally provided Spill Magic to Austin to help him clean spills. On the day of his injury, Kroger asked Austin to clean “whatever mess” the annual condenser cleaning created, which included the “brownie oily looking substance” that Austin encountered in the bathroom. Kroger did not, however, provide him with Spill Magic that day to help clean the spill. Assuming the jury finds that Spill Magic is, in fact, a necessary instrumentality for safely cleaning spills, it *334 should have been foreseeable to Kroger that failing to provide Spill Magic would place Austin at risk of a slip and fall. Cf. Austin v. Kroger Texas L.P., 182 F.Supp.3d 633, 642 (N.D. Tex. 2016) (“[A] large, oily spill on the ground is undeniably a hazardous condition. But when an employer provides an employee like Austin with instrumentalities to encounter the condition, the instrumentalities adjust the apparent risk.”).
Because nonsubscribing employers owe their employees a duty to provide necessary instrumentalities to safely perform their customary work, and because it was foreseeable that Austin might slip and fall if Kroger failed to provide him necessary equipment to clean a spill, we conclude that the district court improperly granted summary judgment on this ground.7
C. Issue of Material Fact as to Causation
The final reason the district court granted Kroger’s motion for summary judgment was that it concluded Austin had no evidence to support the element of causation. The district court found that Kroger carried its summary judgment burden as to causation when it alleged that Austin had “no evidence that, more likely than not, Spill Magic would have prevented his fall.” Although Austin provided an expert report on causation to Kroger prior to Kroger filing its “no evidence” summary judgment motion, he did not file the expert report with the district court until he moved for reconsideration of the interlocutory order denying him leave to file a surreply. Austin did not attach any evidence to his response to Kroger’s summary judgment motion or his subsequent motion for leave to file a surreply, opting instead to rely on his own testimony about Spill Magic’s effectiveness as a cleaning agent. The district court rejected Austin’s “opinion testimony” about Spill Magic’s effectiveness, explaining that, “[i]n a case like this one, where there is no medical testimony linking the alleged negligence to the injury,” Austin needed to provide expert testimony to satisfy his burden. Significantly, the district court also refused to consider the “belatedly-submitted expert report” on causation.
Even though Austin submitted that report on causation for the first time in his motion for reconsideration, the expert report was not new to Kroger. Kroger already had the report at the time it filed its “no evidence” summary judgment motion.8 In his motion for reconsideration, Austin explained that his “good-faith reliance on existing case law” led him to believe that, *335 under federal law, Kroger could not rely on a “no evidence” summary judgment motion and thus the burden had not shifted to him to come forward with evidence creating an issue of material fact on causation.9 Austin also seemed to argue that Kroger would not be prejudiced by allowing him to supplement the record with the expert report because (1) Kroger received a copy of the expert report about a week before it filed its motion for summary judgment and (2) Austin would not oppose a surrebuttal, allowing Kroger to have the last word. The district court concluded that “Rule 59(e) demands more than this,” and, in the same memorandum opinion and order granting summary judgment to Kroger, declined to reconsider the interlocutory order denying Austin’s motion to file a surreply.
Austin first maintains that the district court erred when it decided that Kroger successfully shifted the summary judgment burden to Austin to produce evidence on the issue of causation. Specifically, Austin argues that federal law does not allow for “no evidence” summary judgment motions, but instead requires Kroger to point to evidence in the record showing no issue of material fact on causation. Under federal law, however, it has long been the rule that when the nonmovant has the burden of proof at trial, the moving party may make a proper summary judgment motion, thereby shifting the summary judgment burden to the nonmovant, with an allegation that the nonmovant has failed to establish an element essential to that party’s case. See, e.g., Thomas v. Barton Lodge II, Ltd., 174 F.3d 636, 644 (5th Cir. 1999) (“When a moving party alleges that there is an absence of evidence necessary to prove a specific element of a case, the nonmoving party bears the burden of presenting evidence that provides a genuine issue for trial.”) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322–23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)); see also Little v. Liquid Air Corp., 37 F.3d 1069, 1075, 1076 n.16 (5th Cir. 1994) (en banc) (noting that the party moving for summary judgment is not required to “negate the elements of the nonmovant’s case,” but may “satisfy [its] burden under Celotex” by “assert[ing the] absence of facts supporting the elements of the plaintiffs’ theory of recovery”). Kroger satisfied its summary judgment burden when it alleged that there was no evidence of causation—an element essential to Austin’s ordinary negligence claim. See W. Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005). Therefore, Austin was required to present causation evidence to survive summary judgment.10
*336 Austin next argues that even if the summary judgment burden shifted to him, the district court also erred when it denied both his motion to file a surreply and his motion for reconsideration. As to Austin’s motion to file a surreply, the district court did not abuse its discretion because Kroger did not raise any new arguments in its reply brief, and Austin did not discuss his expert report on causation. See, e.g., Williams v. Aviall Servs. Inc., 76 Fed.Appx. 534, 535 (5th Cir. 2003). As to Austin’s motion for reconsideration, however, the district court applied Federal Rule of Civil Procedure 59(e) when it should have applied Federal Rule of Civil Procedure 54(b). Rule 54(b) is less stringent than Rule 59(e) and does not “demand more” than what Austin did to warrant reconsideration. The district court therefore abused its discretion by relying on the wrong rule to deny Austin’s motion for reconsideration.
Rule 59(e) governs motions to alter or amend a final judgment; Rule 54(b) allows parties to seek reconsideration of interlocutory orders and authorizes the district court to “revise[ ] at any time” “any order or other decision ... [that] does not end the action,” FED. R. CIV. P. 54(b). Because the district court was not asked to reconsider a judgment, the district court’s denial of Austin’s motion to reconsider its order denying leave to file a surreply should have been considered under Rule 54(b). See Cabral v. Brennan, No. 16-50661, 853 F.3d 763, 766, 2017 WL 1314928, at *2 & n.3 (5th Cir. Apr. 10, 2017) (finding harmless error when the court granted an interlocutory motion for reconsideration after applying the “more exacting” standard of Rule 59 because the losing nonmovant did not “explain how he could have been harmed by the procedural error” of applying a higher burden to the movant).
Under Rule 54(b), “the trial court is free to reconsider and reverse its decision for any reason it deems sufficient, even in the absence of new evidence or an intervening change in or clarification of the substantive law.” Lavespere v. Niagara Mach. & Tool Works, Inc., 910 F.2d 167, 185 (5th Cir. 1990) (citing FED. R. CIV. P. 54(b)), abrogated on other grounds, Little, 37 F.3d at 1075 n.14; see also McClung v. Gautreaux, No. 11-263, 2011 WL 4062387, at *1 (M.D. La. Sept. 13, 2011) (“Yet, because the district court is faced on with an interlocutory order, it is free to reconsider its ruling ‘for any reason it deems sufficient, even in the absence of new evidence or an intervening change in or clarification of the substantive law.’ ” (quoting Brown v. Wichita Cty., No. 7:05-cv-108-0, 2011 WL 1562567, at *2 (N.D. Tex. Apr. 26, 2011))). Rule 59(e), however, “serve[s] the narrow purpose of allowing a party to correct manifest errors of law or fact or to present newly discovered evidence,” and it is “an extraordinary remedy that should be used sparingly.” Templet v. HydroChem Inc., 367 F.3d 473, 479 (5th Cir. 2004) (alteration in original) (quoting Waltman v. Int’l Paper Co., 875 F.2d 468, 473 (5th Cir. 1989)).
The D.C. Circuit recently summarized the distinction between Rule 54(b) and Rule 59(e) as follows:
Rule 59(e), understandably, sets a high threshold for parties to raise a new argument for the first time after judgment has already been entered. ... In contrast, *337 Rule 54(b)’s approach to the interlocutory presentation of new arguments as the case evolves can be more flexible, reflecting the “inherent power of the rendering district court to afford such relief from interlocutory judgments as justice requires.”
Cobell v. Jewell, 802 F.3d 12, 25–26 (D.C. Cir. 2015) (internal citations omitted) (quoting Greene v. Union Mutual Life Ins. Co. of Am., 764 F.2d 19, 22 (1st Cir.1985) (Breyer, J.)). The D.C. Circuit held that applying Rule 59(e)’s “strict prohibition” against considering new arguments that could have been raised before the district court’s ruling was “unwarranted” and “of legal consequence” when erroneously applied to interlocutory orders. Id. Similarly, the Fourth Circuit vacated a partial summary judgment order and remanded for reconsideration of a motion to reconsider under Rule 54(b), when the district court erroneously denied the motion for failing to satisfy the requirements of Rule 59(e). Saint Annes Dev. Co. v. Trabich, 443 Fed.Appx. 829, 831–32 (4th Cir. 2011). The Fourth Circuit explained that “[t]he power to reconsider or modify interlocutory rulings ‘is committed to the discretion of the district court,’ and that discretion is not cabined by the ‘heightened standards for reconsideration’ governing final orders.” Id. at 832 (quoting Am. Canoe Ass’n v. Murphy Farms, Inc., 326 F.3d 505, 514–15 (4th Cir. 2003)).
Here, the district court denied Austin’s motion for reconsideration because the expert report “existed at the time he filed that Motion,” and “Rule 59(e) demands more than this.” This explanation evinces a clear reliance on the heightened standard of Rule 59(e) to deny Austin’s motion for reconsideration. Had the district court correctly applied the more flexible Rule 54(b), it would have had the discretion to reconsider the motion for leave to file a surreply in light of both the newly filed expert report and Austin’s equitable arguments, and would not have been constrained by whether the expert report previously existed. See Lavespere, 910 F.2d at 175. Because the district court abused its discretion, we vacate the portion of the district court order finding no material fact issue as to causation and remand for the district court to reconsider Austin’s motion for reconsideration under the more flexible Rule 54(b). Cf. Marlin v. Moody Nat’l Bank, N.A., 533 F.3d 374, 378 (5th Cir. 2008) (vacating sanctions that did not comply with Rule 11 and remanding the case for proceedings consistent with Rule 11); United States v. Thibodeaux, 663 F.2d 520, 522 (5th Cir. Nov. 1981) (vacating the denial of a motion to amend a magistrate order where the district court erroneously applied a deferential appellate review standard and remanding for the district court to apply a less deferential standard); see also Saint Annes, 443 Fed.Appx. at 831–32.
On remand, the district court should construe the procedural rules with a preference toward resolving the case on the merits and avoiding any dismissal based on a technicality. See FED. R. CIV. P. 1 (requiring the Rules to be “construed, administered, and employed by the court ... to secure the just, speedy, and inexpensive determination of every action and proceeding” (emphasis added)); Krupski v. Costa Crociere S. p. A., 560 U.S. 538, 550, 130 S.Ct. 2485, 177 L.Ed.2d 48 (2010) (noting that the Federal Rules of Civil Procedure express a general preference for “resolving disputes on their merits”); Edwards v. Occidental Chem. Corp., 892 F.2d 1442, 1445 (9th Cir. 1990) (“[T]he ‘principal function of procedural rules should be to serve as useful guides to help, not hinder, persons who have a legal right to bring their problems before the courts,’ and ‘decisions on the merits are not to be avoided on the *338 basis of mere technicalities.’ ” (quoting Schiavone v. Fortune, 477 U.S. 21, 27, 106 S.Ct. 2379, 91 L.Ed.2d 18 (1986))). The district court should also weigh the interests of justice when deciding whether to permit a surreply and allow the expert report to supplement the record. See, e.g., La Union del Pueblo Entero v. Fed. Emergency Mgmt. Agency (FEMA), No. 1:08-CV-487, 2016 WL 6915962, at *1 (S.D. Tex. Apr. 12, 2016) (“The Court finds that the interests of justice favor granting Plaintiffs leave to advance the arguments raised in their proposed surreply.”). Given both the expert report’s legal significance as the only competent evidence supporting causation—which is Austin’s only remaining hurdle to surviving summary judgment—and the lack of prejudice to Kroger—which had the report prior to filing its “no evidence” motion for summary judgment and could submit a surrebuttal—the interests of justice seem to weigh in favor of allowing the expert report to supplement the record. We do not decide that issue today, however, but instead leave it to the district court to make the determination in the first instance.
The judgment of the district court is REVERSED IN PART, VACATED IN PART, and REMANDED for further proceedings consistent with this opinion. Kroger had a duty to provide Austin with a necessary instrumentality for the safe performance of his work while he was performing “customary work” and the evidence created a genuine issue of material fact as to whether Spill Magic was a necessary instrumentality. Therefore, we reverse the district court’s judgment on these two issues. Although the district court correctly determined that Kroger shifted the summary judgment burden to Austin on the element of causation, the district court nevertheless abused its discretion when it denied Austin’s motion for reconsideration under Rule 59(e) instead of the more flexible Rule 54(b). In doing so, the district court excluded significant evidence supporting causation. Accordingly, we vacate this portion of the judgment and remand the case to the district court with instructions to (1) apply Rule 54(b) to the motion for reconsideration and (2) weigh the interests of justice when deciding whether to allow supplementation of the record with the earlier-produced but late-filed expert report.
The district court determined that Austin’s testimony about Spill Magic’s efficacy as a cleaning agent was “speculative” and “not enough.” We conclude that a janitor with fifteen years’ experience is competent to testify about the effectiveness of cleaning products and methods. See United States v. Riddle, 103 F.3d 423, 428–29 (5th Cir. 1997) (acknowledging that we have allowed lay witness opinions that required specialized knowledge as long as the opinion is a “straightforward conclusion[ ] from observations informed by his own experience” and is “one that a normal person would form from those perceptions”).
Kroger’s handbook, when used against Kroger, is admissible nonhearsay evidence as a statement by a party opponent. See FED. R. EVID. 801(d)(2).
Austin also contends that the district court should have considered his causation expert’s report in its analysis of the Allsup’s factors. As discussed infra, we conclude that the district court abused its discretion in refusing to consider whether to allow the belated expert report to supplement the record. However, even without considering the expert report, we hold that there was a genuine issue of material fact as to whether Spill Magic was a necessary instrumentality for the safe performance of Austin’s job.
Indeed, the evidence, when viewed in the light most favorable to Austin, suggests that a dry mop was inadequate to clean a spill the size and type of the one Austin encountered in the men’s restroom on the day of his accident. Although Austin testified that the dry mop heads worked, he also testified that they worked “slowly.” Despite spending over thirty minutes cleaning the men’s restroom, and despite going through several dry mop heads, Austin had only cleaned thirty to forty percent of the spill before his accident occurred.
It is undisputed that Kroger is a nonsubscribing employer under the TWC Act.
It would also largely insulate nonsubscribing employers from liability. This effect, in turn, would create perverse incentives encouraging employers to opt-out of the workers compensation program, contrary to the design of the TWC Act. See Austin, 746 F.3d at 197.
Kroger also argues that the Supreme Court of Texas already found that Kroger cannot be liable for Austin’s injuries because he was performing his customary work. This argument is misplaced. The Supreme Court of Texas did not address whether such a customary work exception applies to an employer’s duty to provide necessary instrumentalities. Indeed, it expressly declined to do so. Austin, 465 S.W.3d at 216 n.23. Rather, the court addressed exceptions to premises liability and refused to create an exception to the general premises liability rule that an employer does not have a duty to warn employees of dangers that are open and obvious or already known to the employee. Id. at 213–14. Both this court and the Supreme Court of Texas have made clear that Austin’s necessary instrumentalities claim is independent of his premises liability claim. See Austin, 614 Fed.Appx. at 784; Austin, 465 S.W.3d at 216.
The expert report concluded that “Kroger’s failure to provide Spill Magic and Slip resistant foot wear contributed to or was a cause of Austin’s slip, fall and injuries.” The expert also executed a declaration, which was attached to his report, that explained the key findings of the expert report and concluded that “it is my opinion that Kroger’s failure to provide Austin with ‘Spill Magic’ and/or ‘Shoes for Crews’ was a substantial factor in Austin’s slip, fall, and the injuries that he suffered as a result.”
In Austin’s reply in support of his motion for leave to file a surreply, he quoted the following statement of law from Royal Surplus Lines Insurance Co. v. Brownsville Independent School District as an example of the case law relied upon: “[T]he concept of a ‘no evidence’ summary judgment neither accurately describes federal law nor has any particular import in the vernacular of federal summary judgment procedure.” 404 F.Supp.2d 942, 948 (S.D. Tex. 2005).
Austin contends that our decision in Ashe v. Corley dictates a different outcome here. See 992 F.2d 540 (5th Cir. 1993). In Ashe, we held that the movant “totally failed to satisfy [its] burden as set out in Celotex,” as its motion for summary judgment “failed to raise any factual issues at all, other than in the most conclusory terms. And a mere conclusory statement that the other side has no evidence is not enough to satisfy a movant’s burden.” Id. at 544. Ashe highlights an important distinction—while it is true that a movant cannot support a motion for summary judgment with a conclusory assertion that the nonmovant has no evidence to support his case, a movant may support a motion for summary judgment by pointing out that there is no evidence to support a specific element of the nonmovant’s claim. See Celotex, 477 U.S. at 322–23, 106 S.Ct. 2548. The movant in Ashe did not point to a specific element on which the nonmovant had the burden of proof at trial and allege that there was insufficient evidence to prove that element at trial. Ashe, 992 F.2d at 544 (“The County’s motion for summary judgment failed to point out an absence of proof on any factual issue.”). Because Kroger’s motion did point to a specific element—causation—the burden shifted to Austin to demonstrate that there was a genuine dispute for trial. Thomas, 174 F.3d at 644.
United States Court of Appeals, Fifth Circuit.
AIR EVAC EMS, INCORPORATED, Plaintiff–Appellant
State of TEXAS, DEPARTMENT OF INSURANCE, DIVISION OF WORKERS’ COMPENSATION; David Mattax, Texas Commissioner of Insurance, in his official capacity; Ryan Brannan, Texas Commissioner of Workers’ Compensation, in his official capacity, Defendants–Appellees
Texas Mutual Insurance Company; Liberty Mutual Insurance Company; Zenith Insurance Company; Hartford Underwriters Insurance Company; Twin City Fire Insurance Company; Transportation Insurance Company; Valley Forge Insurance Company; Truck Insurance Exchange, Intervenor Defendants–Appellees
FILED March 20, 2017
*510 Appeal from the United States District Court for the Western District of Texas, Sam Sparks, U.S. District Judge
Attorneys & Firms
Joshua Lee Fuchs, Houston, TX, Thomas F. Allen, Jr., Dallas, TX, Jones Day, for Plaintiff–Appellant.
Lisa Bennett, Assistant Solicitor General, Jennifer Settle Jackson, Assistant Attorney General, Office of the Attorney General for the State of Texas, Austin, TX, for Defendants–Appellees.
Matthew Birk Baumgartner, Boyce C. Cabaniss, Esq., Karen Shafrir Vladeck, Graves, Dougherty, Hearon & Moody, P.C., Paul W. Schlaud, Reeves & Brightwell, L.L.P., Austin, TX, for Intervenor Defendant–Appellee Texas Mutual Insurance Company.
Robert F. Josey, David Lawrence Plaut, Esq., Hanna & Plaut, L.L.P., Austin, TX, for Intervenor Defendant–Appellee Liberty Mutual Insurance Company.
James Michael Loughlin, Stone Loughlin & Swanson, L.L.P., Austin, TX, for Intervenor Defendants–Appellees Zenith Insurance Company, Hartford Underwriters Insurance Company, Twin City Fire Insurance Company, Transportation Insurance Company, Valley Forge Insurance Company, Truck Insurance Exchange.
George W. Hicks, Jr., Kirkland & Ellis, L.L.P., George W. Hicks, Jr., Bancroft, P.L.L.C., Washington, DC, for Amicus Curiae Air Methods Corporation.
Before JONES, BARKSDALE, and COSTA, Circuit Judges.
RHESA HAWKINS BARKSDALE, Circuit Judge:
Primarily at issue is whether an air-ambulance company, claiming federal preemption of Texas’ workers’-compensation scheme, satisfies the equitable exception to the Eleventh Amendment, as provided in Ex parte Young, 209 U.S. 123, 155–56, 28 S.Ct. 441, 52 L.Ed. 714 (1908). It does. For this and other reasons, federal jurisdiction exists. Moreover, we decline to abstain under Colorado River Water Conservation District v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976). VACATED and REMANDED.
Air Evac EMS, Incorporated, filed this action against, inter alia, the Texas Commissioner *511 of Insurance and the Texas Commissioner of Workers’ Compensation (state defendants), claiming that, as applied to air-ambulance entities, Texas’ workers’-compensation system is federally preempted. Because the Airline Deregulation Act (ADA) expressly preempts all state laws “related to a price, route, or service of an air carrier”, Air Evac maintains Texas may not use state laws to regulate air-ambulance services. 49 U.S.C. § 41713(b)(1).
Air Evac’s air ambulances depart from more than 20 sites in Texas. And, Air Evac holds an assortment of licenses from federal and state regulators, including the United States Department of Transportation, Federal Aviation Administration, and Texas. Being an emergency-transportation service, Air Evac must accept patients regardless of either their ability to pay or the source of their payment. As a result, Air Evac often seeks payment for its services through the Texas Workers’ Compensation Act (TWCA).
TWCA established a state-regulated insurance market, in which Texas licenses private insurers to sell workers’-compensation policies to employers. See Tex. Labor Code §§ 401.001–419.007. Two critical features of this framework are relevant to the action at hand: a maximum-reimbursement system; and, a prohibition on “balance billing”. Id. §§ 413.011 (reimbursement guidelines), 413.042 (“A health care provider may not pursue a private claim against a workers’ compensation claimant”).
As for the reimbursement program, TWCA authorizes health-care providers to seek payment directly from workers’-compensation insurers for services provided patients covered by TWCA. Id. § 408.027(a). The insurer then reimburses the health-care provider according to rate guidelines promulgated by the Texas Workers’ Compensation Commission (commission). See id. These rates are generally based on corresponding Medicare rates. An insurer is not allowed to pay more than the maximum-reimbursement rate, regardless of whether the rate satisfies the health-care provider’s billed amount. Id. § 413.011(d).
Therefore, under this system, the initial bill goes to the insurer rather than the patient. Furthermore, the balance-billing prohibition prevents a health-care provider from billing the patient for any portion of the bill in excess of the commission’s rate. Id. § 413.042. If a health-care provider violates this prohibition, TWCA authorizes fines up to “$25,000 per day per occurrence”. Id. § 415.021(a).
If a health-care provider believes it was underpaid, or the commission has not yet set a specific rate, it may dispute the fee with the Texas Department of Insurance, Division of Workers’ Compensation (DWC). See id. § 413.031(a), (c). (Air Evac does not appeal the dismissal of DWC from this action.)
DWC serves as a first-level administrative adjudicator, with the healthcare provider and insurer participating as interested parties. See id. DWC’s decisions are appealable to the State Office of Administrative Hearings (SOAH); SOAH’s decisions, to the Travis County, Texas, district court. See id. § 413.031(k–1); Tex. Gov. Code Ann. § 2001.176. And, an appeal may be taken from a decision by that court. Tex. Gov. Code Ann. § 2001.901.
If the commission has not promulgated a reimbursement rate for a given service, DWC must determine a “fair and reasonable” rate through administrative proceedings. See 28 Tex. Admin. Code § 134.1(e)–(f). In 2002, DWC adopted a rule setting a general reimbursement rate of 125% of the Medicare rate. See id. § 134.203(d).
*512 After adhering to this rule for ten years, numerous air-ambulance companies—including Air Evac—challenged the 125% rate in the state-administrative-dispute system, urging ADA preemption. Initially, DWC stated it believed Texas’ reimbursement guidelines were preempted. In September 2015, however, following an extensive series of administrative hearings, an administrative law judge (ALJ) ruled TWCA’s scheme was not preempted, and found the proper reimbursement rate to be 149% of the Medicare rate.
The lead entity in the administrative proceeding, PHI Air Medical, LLC, appealed the ALJ’s ruling to the Travis County district court. See Tex. Mut. Ins. Co., et al. v. PHI Air Medical, LLC, No. D–1–GN–15–004940 (Tex. 53d Jud. Dist. 15 Dec. 2016). In mid-December 2016, that court ruled: TWCA is not preempted; and, a reimbursement rate of 125% of the Medicare rate is adequate under TWCA. Id. On 31 January 2017, PHI appealed to the court of appeals. In the meantime, hundreds of air-ambulance fee disputes have been held at the SOAH level, pending the outcome of PHI’s judicial proceeding.
Approximately a year earlier, in January 2016, with the state proceeding ongoing, Air Evac filed this action, seeking: a declaratory judgment that ADA preempts TWCA with respect to air-ambulance companies; injunctive relief against enforcement of the maximum-reimbursement-rate system; or, in the alternative, declaratory and injunctive relief against the balance-billing prohibition. The district court granted a joint motion to intervene on behalf of numerous workers’-compensation insurers (insurers). Prior to the discovery conference, Air Evac moved for summary judgment and each defendant moved to dismiss.
The court granted defendants’ Federal Rule of Civil Procedure 12(b)(1) motions to dismiss. Air Evac EMS, Inc. v. Texas, No. 1:16-CV-00060-SS, 2016 WL 4259552, at *9 (W.D. Tex. 11 Aug. 2016). In doing so, it first ruled subject-matter jurisdiction existed, based on Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 96 n.14, 103 S.Ct. 2890, 77 L.Ed.2d 490 (1983) (ruling preemption claims present a federal question because they rely on interpretation of federal statutes and the Supremacy Clause). Air Evac EMS, 2016 WL 4259552, at *5. The court continued to explain that, although Shaw confers federal-question jurisdiction under 28 U.S.C. 1331, the Supremacy Clause, ADA, and Declaratory Judgment Act do not provide a “private right of action”. Id. at *5–6.
Therefore, in the light of the Eleventh Amendment, the court concluded: in order for this action to proceed, Air Evac must rely on a federal court’s equitable jurisdiction to enjoin state officials under Ex parte Young. Id. at *6. Looking to Ex parte Young’s basic requirements, the court first acknowledged Air Evac: seeks prospective injunctive relief; and claims an ongoing violation of federal law. Id. at *6–7.
The court next considered Okpalobi v. Foster, 244 F.3d 405 (5th Cir. 2001) (en banc), in which the lead, plurality opinion would have required defendants in an Ex parte Young action to, inter alia, “be specially charged with the duty to enforce the statute”, as well as to “be threatening to exercise that duty”. Air Evac EMS, 2016 WL 4259552, at *7 (quoting Okpalobi, 244 F.3d at 414–15). Relying on the duty-to-enforce requirement, the court noted TWCA’s maximum-reimbursement scheme cannot be enforced against Air Evac because it constrains the amount insurers can pay, rather than the amount air-ambulance companies can charge. Id. at *8. Without direct enforcement against the health-care providers, the court concluded, the maximum-reimbursement system does *513 not qualify as the basis for the Ex parte Young exception. Id.
Turning to Air Evac’s alternative challenge to the balance-billing prohibition, the court recognized state defendants are charged with enforcing the provision against entities which violate the rule. Id. The court, however, held: “Air Evac’s claims fail under Young, as Air Evac has failed to show an enforcement proceeding concerning the balance-billing prohibition is imminent, threatened, or even intended”. Id. In doing so, the court specifically rejected Air Evac’s assertion that it need not “expose itself” to liability by violating the balance-billing prohibition in order to test the law’s constitutionality under the Supremacy Clause. Id.
In sum, the court held: despite claiming an ongoing violation of federal law and seeking only prospective relief, Air Evac could not avail itself of the Ex parte Young exception because the maximum-reimbursement system is not directly enforced against Air Evac, and state defendants have not threatened to enforce the balance-billing prohibition. Id. at *9.
For this appeal, our court granted expedited briefing and oral argument. The parties raise four distinct threshold issues: whether Air Evac has Article III standing; whether federal-question jurisdiction exists for this action under 28 U.S.C. § 1331; whether Ex parte Young’s exception applies; and whether, in the light of the above-referenced ongoing state proceedings, we should abstain from exercising otherwise-proper jurisdiction.
A motion to dismiss’ being granted is reviewed de novo, applying the same standard as the district court. E.g., Bennett–Nelson v. La. Bd. of Regents, 431 F.3d 448, 450 n.2 (5th Cir. 2005). And, of course, a federal court must always determine its own jurisdiction; if it decides it is lacking, it may proceed no further. E.g., Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). Consistent with our above-described standard of review, “whether state defendants are entitled to sovereign immunity is likewise reviewed de novo”. Moore v. La. Bd. of Elementary & Secondary Educ., 743 F.3d 959, 962 (5th Cir. 2014) (internal citation omitted).
State defendants’ challenge to Air Evac’s standing is adopted by insurers. Federal standing has three well-known requirements: (1) injury-in-fact; (2) “fairly traceable” causation; and (3) redressability. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). In concluding Air Evac has standing, the court stated:
Air Evac has suffered economic injury given its alleged inability to recover the total amount of its billed charges under the TWCA reimbursement scheme; the causal connection between the scheme and Air Evac’s injury is clear; and if the challenged provisions are indeed preempted, the State Defendants will no longer be able to enforce them. Air Evac has standing to sue.
Air Evac EMS, 2016 WL 4259552, at *4 n.2.
State defendants assert the district court’s analysis is too simplistic, that Air Evac cannot establish causation or redressability. They maintain that, to the extent not being able to recover full-billed charges is an injury, there is no traceability or redressability because TWCA’s reimbursement cap is not directly “enforced” against Air Evac, but against insurers. (As discussed infra, there is significant overlap *514 between standing and Ex parte Young’s applicability.)
Under the above-described three-part test, an injury-in-fact—the first requirement—must be “concrete and particularized” and “actual or imminent”. Lujan, 504 U.S. at 560, 112 S.Ct. 2130. Working in tandem, TWCA’s provisions effectively set a reimbursement rate and prohibit air-ambulance entities from collecting any more than that rate from other sources (i.e., the patient).
Along that line, Ex parte Young was a rate-setting case in which a railroad was not allowed to charge more than the state-mandated rate. 209 U.S. at 127–28, 28 S.Ct. 441. There, the complaint claimed those rates were confiscatory, in violation of the Fourteenth Amendment’s mandate that no State shall “deprive any person of life, liberty, or property, without due process of law”. U.S. Const. amend. XIV, § 1; see Ex parte Young, 209 U.S. at 149–50, 28 S.Ct. 441. Although Air Evac does not contend that collecting 125% of the Medicare rate is confiscatory, capping rates based on a federally-preempted state law (by virtue of the Supremacy Clause) would limit a party’s financial recovery. Thus, prohibiting collection in excess of the maximum-reimbursement rate is a pecuniary injury sufficient to establish injury-in-fact. See, e.g., K.P. v. LeBlanc, 627 F.3d 115, 122 (5th Cir. 2010).
For the second standing requirement, there must be a “fairly traceable” causal connection “between the injury and the conduct complained of”. Lujan, 504 U.S. at 560, 112 S.Ct. 2130. Three of state defendants’ duties are “fairly traceable” to Air Evac’s injury: (1) rate-setting; (2) fee-dispute resolution; and (3) the balance-billing prohibition. For the reasons that follow, collectively, these three instances of commission and DWC conduct are “fairly traceable” to Air Evac’s injury.
First, the commission and DWC set the reimbursement rates insurers are allowed to pay. Although defendants contend this rate-setting is too attenuated to be the cause of Air Evac’s injury, “[t]racing an injury is not the same as seeking its proximate cause”. K.P., 627 F.3d at 123. By setting the reimbursement rates, state defendants initiate the first step in the workers’-compensation-payment process.
Second, state defendants oversee the administrative fee-dispute process. In K.P., described infra, a state regulatory board served as the “initial arbiter[ ]” within a state-funded compensation system. Id. Our court ruled that role “place[d] the Defendants among those who would contribute to Plaintiffs’ harm”. Id. Likewise, state defendants’ oversight of DWC—the “initial arbiter[ ]” of fee-reimbursement disputes—places state defendants among those who cause Air Evac’s injury. Id.
Third, state defendants are charged with enforcing the balance-billing prohibition. Their ability to fine TWCA violators up to $25,000 per violation, per day, prevents Air Evac from seeking additional payment outside of the maximum-reimbursement scheme.
The final of the three standing requirements is that the court be able to structure relief to redress plaintiff’s injury. Plaintiff must show a “favorable decision will relieve a discrete injury to himself”, but not necessarily “that a favorable decision will relieve his every injury”. Larson v. Valente, 456 U.S. 228, 243 n.15, 102 S.Ct. 1673, 72 L.Ed.2d 33 (1982) (emphasis in original).
In Okpalobi, defendant state officials (governor and attorney general) were found not to have “any duty or ability to do anything” relating to the statute. 244 F.3d at 427 (emphasis in original). On the other hand, in K.P., defendant board members *515 had “definite responsibilities relating to the application of [the statute]”. 627 F.3d at 124.
Here, state defendants are more akin to the board members in K.P. than the state-wide officials in Okpalobi. As explained above, state defendants wield influence at multiple points in the workers’-compensation reimbursement process. An injunction against their rate setting, fee-dispute resolution, or enforcement of the balance-billing prohibition would remove a “discrete injury” caused by state defendants’ enforcement of TWCA. See Larson, 456 U.S. at 243 n.15, 102 S.Ct. 1673.
In sum, state defendants’ duties concerning the workers’-compensation reimbursement system and balance-billing prohibition cause Air Evac a pecuniary injury that can be redressed with injunctive and declaratory relief. In short, Air Evac has Article III standing.
Next, state defendants (but not insurers) contend federal-question jurisdiction for this action is lacking, based on Armstrong v. Exceptional Child Center, Inc., ––– U.S. ––––, 135 S.Ct. 1378, 1384, 191 L.Ed.2d 471 (2015). State defendants cite Armstrong for the proposition that, in order for federal jurisdiction to exist, plaintiff, at this threshold stage, must nevertheless establish the requirements for injunctive relief.
The district court ruled federal-question jurisdiction existed, based on the Court’s plain statement in Shaw. See Air Evac EMS, 2016 WL 4259552, at *5 (citing Shaw, 463 U.S. at 96 n.14, 103 S.Ct. 2890). The Shaw Court stated: “A plaintiff who seeks injunctive relief from state regulation, on the ground that such regulation is pre-empted by a federal statute which, by virtue of the Supremacy Clause of the Constitution, must prevail, thus presents a federal question which the federal courts have jurisdiction under 28 U.S.C. § 1331 to resolve”. 463 U.S. at 96 n.14, 103 S.Ct. 2890. Because Air Evac’s complaint seeks injunctive relief on the basis that the ADA preempts the TWCA, Shaw confers federal-question jurisdiction. See id.
Despite state defendants’ assertions to the contrary, Armstrong does not modify Shaw’s clear language. Armstrong holds the Supremacy Clause does not create a right to challenge state laws on preemption grounds; rather, the clause “instructs courts what to do when state and federal law clash, but is silent regarding who may enforce federal laws in court”. Armstrong, 135 S.Ct. at 1383. Thus, the Court held: “The ability to sue to enjoin unconstitutional actions by state and federal officers is the creation of courts of equity”, not the Supremacy Clause. Id. at 1384.
In Armstrong, the Court reaffirmed that plaintiffs’ seeking injunctive relief against state officers must satisfy Ex parte Young’s equitable exception. See id. This holding requires Air Evac proceed under Ex parte Young, if at all; but, it does not contradict Shaw’s plain grant of federal-question jurisdiction under Article III and 28 U.S.C. § 1331. See Shaw, 463 U.S. at 96 n.14, 103 S.Ct. 2890.
Having concluded jurisdiction existed, the district court next considered Ex parte Young’s applicability. Air Evac EMS, 2016 WL 4259552, at *6. As noted, Ex parte Young represents an equitable exception to Eleventh Amendment sovereign immunity. 209 U.S. at 155–56, 28 S.Ct. 441. The doctrine allows plaintiff to sue a state official, in his official capacity, in seeking to enjoin enforcement of a state law that conflicts with federal law. See id. at 159–60, 28 S.Ct. 441. It is a threshold *516 question which, therefore, does not consider the merits of an action, focusing instead on whether the complaint makes the requisite claims against proper parties. See id. at 150, 28 S.Ct. 441. Air Evac contends the district court misapplied Ex parte Young’s standard in two ways.
First, Air Evac challenges the court’s concluding the maximum-reimbursement rates are not enforced against Air Evac because TWCA regulates the amount insurers may pay, rather than the amount air-ambulance entities can collect. Air Evac EMS, 2016 WL 4259552, at *8. Air Evac asserts the statute is directly enforced against it every time it either seeks reimbursement through TWCA or disputes a reimbursement amount through DWC’s administrative process.
Second, Air Evac claims the court erred by requiring “initiated [or] threatened enforcement proceedings” in order, under Ex parte Young, to challenge TWCA’s balance-billing prohibition. See id. at *7. Air Evac contends Ex parte Young, instead, requires only a “straightforward inquiry” for whether the complaint seeks prospective equitable relief for an ongoing violation of federal law, citing Verizon Maryland, Inc. v. Public Service Commission of Maryland, 535 U.S. 635, 645, 122 S.Ct. 1753, 152 L.Ed.2d 871 (2002).
State defendants and insurers maintain the court was correct to require direct enforcement against Air Evac for the maximum-reimbursement provisions. Likewise, for the balance-billing prohibition, defendants agree with the court’s concluding there is no imminent or threatened enforcement proceeding sufficient to meet the Ex parte Young exception. In addition to echoing the court’s reasoning, defendants also contend: the dismissal should be affirmed because, inter alia, Air Evac does not meet the traditional requirements for equitable relief; therefore, no injunctive relief can be issued pursuant to the Ex parte Young exception.
Ex parte Young concerned whether a federal court may enjoin a state official from enforcing an unconstitutional state law. 209 U.S. at 126–27, 28 S.Ct. 441. Underlying the issue was a railroad’s seeking an injunction against the Minnesota attorney general, who threatened criminal action and civil fines against any railroad that violated the state commission’s rate-setting order. Id. at 127–28, 28 S.Ct. 441. The railroad asserted, as discussed supra, that the rates amounted to a confiscatory taking, in violation of the Fourteenth Amendment; the attorney general claimed protection from suit under the Eleventh Amendment. See id. at 150, 28 S.Ct. 441.
Addressing the viability of a federal injunction, the Court held:
[I]ndividuals who, as officers of the State, are clothed with some duty in regard to the enforcement of the laws of the state, and who threaten and are about to commence proceedings, either of a civil or criminal nature, to enforce against parties affected an unconstitutional act, violating the Federal Constitution, may be enjoined by a Federal court of equity from such action.
Id. at 155–56, 28 S.Ct. 441. In justifying its holding, the Court avoided the apparent conflict with sovereign immunity by creating a legal “fiction”: a federal court does not violate state sovereignty when it orders a state official to do nothing more than uphold federal law under the Supremacy Clause. Va. Office for Prot. & Advocacy v. Stewart, 563 U.S. 247, 255, 131 S.Ct. 1632, 179 L.Ed.2d 675 (2011); see Ex parte Young, 209 U.S. at 159–60, 28 S.Ct. 441.
Because this legal fiction infringes on state sovereignty, Ex parte Young and its progeny limit the exception. *517 Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261, 269, 117 S.Ct. 2028, 138 L.Ed.2d 438 (1997) (affirming that, in applying Ex parte Young, courts “must ensure that the doctrine of sovereign immunity remains meaningful, while also giving recognition to the need to prevent violations of federal law”); see also Pennhurst State Sch. and Hosp. v. Halderman, 465 U.S. 89, 104–06, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984) (limiting Ex parte Young jurisdiction only to violations of the federal Constitution and statutes); Edelman v. Jordan, 415 U.S. 651, 677, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974) (limiting Ex parte Young plaintiffs only to prospective relief). Most relevant to the action at hand, Ex parte Young requires defendants have “some connection” to the state law’s enforcement and threaten to exercise that authority. Ex parte Young, 209 U.S. at 157, 28 S.Ct. 441.
This “some connection” requirement is designed to ensure defendant is not merely being sued “as a representative of the state, and thereby attempting to make the state a party”. Id. For example, a state governor with a broad duty to uphold state law is not a proper defendant. See Morris v. Livingston, 739 F.3d 740, 745–46 (5th Cir. 2014).
Despite these restrictions, the Court has reinforced Ex parte Young’s being a “straightforward inquiry” and specifically rejected an approach that would go beyond a threshold analysis. See Coeur d’Alene, 521 U.S. at 296, 117 S.Ct. 2028 (O’Connor, J., concurring in part and in judgment). In Coeur d’Alene, the lead opinion proposed a balancing test, weighing the significance of the federal right, the availability of a state forum, and the importance of the state interest. Id. at 270–80, 117 S.Ct. 2028. Seven justices rejected this approach and agreed with Justice O’Connor’s position that a case-by-case balancing test “unnecessarily recharacterizes and narrows” Ex parte Young. Id. at 291, 117 S.Ct. 2028 (O’Connor, J., concurring in part and in judgment); id. at 298, 117 S.Ct. 2028 (Souter, J., dissenting).
Subsequently, in Verizon, 535 U.S. at 645, 122 S.Ct. 1753 (quoting Coeur d’Alene, 521 U.S. at 296, 117 S.Ct. 2028 (O’Connor, J., concurring in part and in judgment)), a majority of the Court affirmed this principle, stating: “[A] court need only conduct a ‘straightforward inquiry into whether [the] complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective’ ”. There, a state regulatory commission issued an order interpreting the scope of a private contract, which had been subject to prior commission approval. Id. at 639–40, 122 S.Ct. 1753. Plaintiff’s subsequent federal-court action claimed the commission’s order conflicted with federal law. Id. at 640, 122 S.Ct. 1753.
The Court conducted a “straightforward inquiry” into the pleadings and noted: “We have approved injunction suits against state regulatory commissioners in like contexts”. Id. at 645, 122 S.Ct. 1753 (collecting cases). Thus, the action could proceed against state commissioners for their role in implementing a state regulatory scheme. See id. at 645–48, 122 S.Ct. 1753.
Our court has also considered Ex parte Young’s navigating between state sovereignty and federal supremacy: specifically, how close a relationship is required between the state actor and the claimed unconstitutional act. Compare Okpalobi, 244 F.3d at 413–16 (lead plurality requiring a “special relation” to “threatened enforcement”), with K.P., 627 F.3d at 124 (explicitly declining to follow the Okpalobi plurality’s “special relation” standard). For example, in our en-banc decision in Okpalobi, the Eleventh Amendment question was whether defendants—Louisiana’s governor and attorney general—had a sufficient duty, under Ex parte Young, to enforce *518 a Louisiana statute. See 244 F.3d at 410–11. The statute provided for private actions and unlimited tort liability against doctors who performed abortions. Id. at 409.
The lead opinion interpreted Ex parte Young’s “some connection” language to require a “special relation” or “close connection”. See id. at 413–19 (citing Ex parte Young, 209 U.S. at 157, 28 S.Ct. 441; Fitts v. McGhee, 172 U.S. 516, 529, 19 S.Ct. 269, 43 L.Ed. 535 (1899)). Because the statute provided only for private enforcement by patients (as opposed to state enforcement), and because the governor and attorney general had only a “general duty” to see state laws enforced, the lead opinion held such a tenuous connection was insufficient to invoke Ex parte Young. Okpalobi, 244 F.3d at 423–24.
As noted supra, the Eleventh Amendment analysis in Okpalobi, however, received support only from a plurality of our en banc court; the majority decided the case on standing. See id. at 429 (Higginbotham, J., concurring); id. at 432–33 (Benavides, J., concurring in part and dissenting in part); id. at 441 (Parker, J., dissenting). Subsequently, in K.P., 627 F.3d at 124, our court stated: “Because that part of the [Okpalobi] en banc opinion did not garner majority support, the Eleventh Amendment analysis is not binding precedent”.
The K.P. court considered the same Louisiana abortion statute as had Okpalobi, but in a different context. K.P., 627 F.3d at 119–20, 122. There, plaintiff physicians were members of Louisiana’s patients’-compensation fund, which effectively capped physicians’ liability in medical-malpractice actions. Id. at 119. An oversight board administered the fund by reviewing patient claims and determining coverage. See id. But, when a patient filed a claim asserting abortion-related tort damages, the board relied on the Louisiana abortion statute to exclude the physicians from the fund’s coverage and liability cap. Id. at 120; see La. Rev. Stat. Ann. § 9:2800.12(A), (B)(2), (C)(2) (excluding abortion procedures from the “laws governing medical malpractice or limitations of liability thereof”). Plaintiff physicians’ subsequent federal-court action sought to enjoin the board’s denying them coverage based on the claimed unconstitutional abortion statute. K.P., 627 F.3d at 120.
In its Eleventh Amendment analysis, the K.P. court defined “enforcement” as involving “compulsion or constraint”. Id. at 124. It then held, without adopting the “special relation” standard from Okpalobi, that “the Board’s role starts with deciding whether to have a medical review panel consider abortion claims and ends with deciding whether to pay them. By virtue of these responsibilities, Board members are delegated some enforcement authority”. Id. at 125. Unlike the governor and attorney general in Okpalobi, the board in K.P. took specific action predicated on the abortion statute; this was a sufficient connection to enforcement to trigger the Ex parte Young exception. See id.
As these cases demonstrate, the Ex parte Young analysis can turn on subtle distinctions in the complaint. Ex parte Young and Okpalobi each involved a state attorney general as defendant. In Ex parte Young, the attorney general had authority to enforce the statute at issue, while the Louisiana abortion statute in Okpalobi provided for enforcement through private actions, not public officials.
On the other hand, in Okpalobi and K.P., the same statute was at issue, but defendants in the respective actions provided the determinative distinction. Rather than suing the attorney general and governor, as in Okpalobi, the K.P. plaintiffs sued the state-regulatory-board members, *519 who had a specific means through which to apply the abortion statute. Thus, the Ex parte Young analysis turns on the complaint’s context—including the challenged state law and defendants—to determine whether “the state officer, by virtue of his office, has some connection with the enforcement of the act”. Ex parte Young, 209 U.S. at 157, 28 S.Ct. 441.
Turning to the matter at hand, we must decide whether state defendants have the requisite connection to the enforcement of the maximum-reimbursement system and balance-billing prohibition. In doing so, we bear in mind the Court’s admonition that Ex parte Young presents a “straightforward inquiry” into the complaint’s claims. See Verizon, 535 U.S. at 645, 122 S.Ct. 1753.
First, as the district court noted, Air Evac claims an ongoing violation of federal law and seeks prospective relief. See Air Evac EMS, 2016 WL 4259552, at *7. The complaint claims the ADA expressly preempts the workers’-compensation system with respect to air-ambulance entities and seeks an injunction and declaratory judgment.
Next, we hold state defendants have a sufficient connection to the enforcement of the TWCA through the maximum-reimbursement rates and balance-billing prohibition. The district court was correct to recognize that “enforcement” under the maximum-reimbursement scheme is not the same type of direct enforcement found in Ex parte Young, for instance, where the attorney general threatened civil and criminal prosecution. But, such enforcement is not required. See, e.g., Verizon, 535 U.S. at 645–46, 122 S.Ct. 1753; K.P., 627 F.3d at 124–25. In Verizon, the Court allowed an action against commissioners who ordered specific payments between private parties. 535 U.S. at 645–46, 122 S.Ct. 1753. Likewise, in K.P., the board members’ reliance on the abortion statute to deny liability protection qualified as enforcement. 627 F.3d at 125.
Employing K.P.’s definition of “enforcement” as “compulsion or constraint”, state defendants obviously constrain Air Evac’s ability to collect more than the maximum-reimbursement rate under the TWCA system. Between their rate-setting authority and role in arbitrating fee disputes through the administrative process, state defendants effectively ensure the maximum-reimbursement scheme is enforced from start to finish. Therefore, the district court erred in not considering, for the purpose of Ex parte Young’s being applied, the maximum-reimbursement provision as a means of enforcing TWCA against Air Evac.
The parties debate whether Ex parte Young applies only when there is a threatened or actual proceeding to enforce the challenged state law. We need not resolve that question. To the extent Ex parte Young requires that the state actor “threaten” or “commence” proceedings to enforce the unconstitutional act, state defendants’ pervasive enforcement satisfies that test. See 209 U.S. at 156, 28 S.Ct. 441. In K.P., our court held the prior denial of liability coverage fulfilled the threatened-proceedings requirement; so, too, does state defendants’ enforcement of the 125% air-ambulance-reimbursement rate. See K.P., 627 F.3d at 125.
Having held the Ex parte Young exception applies, we need not engage in a separate analysis of the balance-billing prohibition. As discussed, the district court concluded “Air Evac has failed to show an enforcement proceeding concerning the *520 balance-billing prohibition is imminent, threatened, or even intended”. Air Evac EMS, 2016 WL 4259552, at *8. We note, however, that the balance-billing prohibition works in concert with state defendants’ implementation of the reimbursement system, serving as a backstop against alternative methods of fee collection. State defendants’ pervasive authority to oversee and enforce Texas’ workers’-compensation system satisfies the Ex parte Young exception.
Finally, courts recognize the significant overlap between Article III jurisdiction, Ex parte Young, and equitable relief. See, e.g., NiGen Biotech, L.L.C. v. Paxton, 804 F.3d 389, 394 n.5 (5th Cir. 2015) (equating and distinguishing Ex parte Young’s requirements with the “Article III minimum for standing to request an injunction”). As with most jurisdictional questions, Ex parte Young and standing turn on the specific details in the complaint.
These doctrines are both threshold questions, however, and do not consider the action’s merits. In fact, the Ex parte Young Court acknowledged the underlying action would rely on the Fourteenth Amendment, but noted “a decision of this case does not require an examination or decision of the question whether [the Fourteenth Amendment’s] adoption in any way altered or limited the effect of the [Eleventh] Amendment”. 209 U.S. at 150, 28 S.Ct. 441. In doing so, the Court recognized that its Eleventh Amendment analysis was distinct from any subsequent question on the merits. See id.; see also Verizon, 535 U.S. at 646, 122 S.Ct. 1753 (“But the inquiry into whether suit lies under Ex parte Young does not include an analysis of the merits of the claim.”).
Therefore, having determined Air Evac’s action satisfies the Ex parte Young exception, we need not consider—contrary to defendants’ assertion—whether the requirements for temporary or permanent equitable relief are also satisfied. Doing so is beyond the threshold jurisdictional question posed by Ex parte Young and would consider the availability and scope of any eventual relief.
State defendants’ final contention (adopted by insurers) is that, assuming jurisdiction exists for this action, Colorado River abstention should be invoked in the light of PHI’s proceedings in Texas state court and the administrative system. See Colo. River Water Conservation Dist. v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976). Because the district court based dismissal on the Eleventh Amendment, it “decline[d] to consider the propriety of Colorado River abstention”. Air Evac EMS, 2016 WL 4259552, at *9. Discretionary Colorado River abstention may be applied when: a state proceeding is ongoing and is parallel to the federal proceeding; and, extraordinary circumstances caution against exercising concurrent federal jurisdiction. See Colorado River, 424 U.S. at 817–19, 96 S.Ct. 1236.
“Parallel actions” typically involve the same parties, but the identity of the parties is not determinative. See Afr. Methodist Episcopal Church v. Lucien, 756 F.3d 788, 797 (5th Cir. 2014). Instead, a court may “look both to the named parties and to the substance of the claims asserted” to determine whether the state proceeding would be dispositive of a concurrent federal proceeding. Id. If the matters are deemed parallel, the court must engage in a six-factor balancing test, but “with the balance heavily weighted in favor of the exercise of [federal] jurisdiction”. *521 Moses H. Cone Mem. Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 16, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983); see Kelly Inv., Inc. v. Cont’l Common Corp., 315 F.3d 494, 497 (5th Cir. 2002) (listing the Colorado River factors).
For the requisite parallel action, state defendants point to the above-described PHI litigation, which arose out of DWC’s administrative appeals process. As discussed, Air Evac and numerous other air-ambulance entities, in 2012, began challenging reimbursement rates through DWC’s fee-dispute process. The appeals were consolidated; and, after extensive administrative proceedings, an ALJ ruled against ADA preemption. PHI sought judicial review in the Travis County district court; the other air-ambulance matters were held in abeyance pending resolution of that appeal. Shortly after oral argument in our court for the instant appeal, the state court ruled against preemption and found a 125% reimbursement rate adequate. See Tex. Mut. Ins. Co., et al. v. PHI Air Medical, LLC, Cause No. D–1–GN–15–00490 (Tex. 53d Jud. Dist. 15 Dec. 2016). PHI has appealed to Texas’ court of appeals.
Nonetheless, given the differences between the two actions and lack of preclusive effect, we do not consider the PHI state-court proceeding to be “parallel” for the purpose of Colorado River abstention. For example, the parties are different on both sides: neither Air Evac nor state defendants are party to the PHI litigation. In addition, the state proceeding required the adjudicator to determine an adequate reimbursement rate, an issue not before our court. See id. at 2. And, most especially, the exceptional nature of federal abstention cuts in favor of jurisdiction. Accordingly, we decline to abstain.
For the foregoing reasons, the judgment is VACATED, and this matter is REMANDED for further proceedings consistent with this opinion.