author: JERRY E.. SMITH, Circuit Judge:

text:
    WEST TEXAS LTC PARTNERS, INCORPORATED, Doing Business as Cedar Manor, Petitioner, v. United States DEPARTMENT OF HEALTH AND HUMAN SERVICES, Respondent.
    No. 15-60763
    United States Court of Appeals, Fifth Circuit.
    Filed December 15, 2016

      Allison, L." Spruill, Delta S. Best, Esq., Best & Spruill, P.C., Austin, TX, for Petitioner.
    Jennifer Marie Mendola, Edmond Dante Anderson, III, Esq., Assistant Regional, U.S. Department of Health & Human Services, Office of .the General Counsel Region VI, Dallas, TX, Daniel Barry, Associate General Counsel, Washington, DC, for Respondent.
    Before STEWART, Chief Judge, SMITH and DENNIS, Circuit Judges.
   JERRY E.. SMITH, Circuit Judge:

West Texas LTC Partners, Incorporated, doing business as Cedar Manor Nursing & Rehabilitation Center (“Cedar Man- or”), petitions for review of a final decision of the Departmental Appeals Board (“DAB”) of the U.S, Department of Health and Human Services (“HHS”). Because the decision is neither arbitrary and capricious nor unsupported by substantial evidence, we. deny the petition,. for review.

L

Cedar Manor is a long-term-care facility in San Angelo, Texas. As a skilled-nursing facility, it is subject to periodic surveys to ensure that it remains in substantial compliance with Medicare regulations, The surveys are conducted by a designated state agency on behalf of the Centers for Medicare & Medicaid Services (“CMS”) of HHS. The findings are reviewed by CMS, and civil money penalties (“CMPs”) or other remedies may be imposed by the Secretary of HHS if the facility is found non-compliant.

In December 2013, Cedar Manor was surveyed by the Texas Department of Aging and Disability Services (“DADS”). The surveyor found Cedar Manor out of compliance with three regulations after observing the care provided to two wheelchair-bound residents, Resident #1 and Resident #4. The surveyor found that the facility had allowed the straps of a Hoyer sling and catheter tubing to hang near the wheels of Resident #l’s wheelchair, causing him to fall from the chair, breaking both of his femurs. Also, Hoyer sling straps were hanging in a dangerous position on the wheelchair of Resident #4.

In January 2014, DADS found independent violations of three regulations regarding pressure-sore prevention. Resident #7 is a ninety-one-year-old woman who has a high risk of developing pressure sores. The surveyor observed a Cedar Manor employee giving her improper perineal care and failing to recognize two pressure sores.

For the two sets of violations, CMS recommended two CMPs: $6,050 per day for three days because of the “immediate hazard” created by the dangling Hoyer sling straps and $350 per day for forty-two days, to run consecutively from the end of the “immediate hazard” penalty. Cedar Manor appealed the findings and CMPs and requested a hearing before an administrative law judge (“ALJ”). CMS moved for summary judgment on all of the violations after the briefing and evidence were submitted. The ALJ granted summary judgment and upheld the CMPs. On de novo review, the Departmental Appeals Board (“DAB”) affirmed.

II.

We have jurisdiction under 42 U.S.C. § 1320a-7a(e) to review findings of noncompliance and the imposition of CMPs. Such decisions are reviewed under the “deferential standards of the Administrative Procedures Act (“APA”), which permits the setting aside of agency actions, findings, and conclusions that are ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law5 or ‘unsupported by substantial evidence.’ ” Cedar Lake Nursing Home v. HHS, 619 F.3d 453, 456 (5th Cir. 2010) (quoting 5 U.S.C. §§ 706(2)(A)-(E)).

Cedar Manor contends that because the DAB’s decision affirmed a summary judgment, it should be reviewed de novo, just as a district court’s summary-judgment ruling would. We rejected that theory in Cedar Lake, where the facts were similar. There is no coherent way to distinguish the circumstances of this petition for review from those in Cedar Lake, in which we also observed that “we review this petition consistent with the deferential standards of the APA, 5 U.S.C. §§ 706(2)(A)-(E).” Cedar Lake, 619 F.3d at 457.

A.

The December survey resulted in findings of noncompliance with 42 C.F.R. §§ 483.13(c), 483.25(h), and 483.75. DADS affirmed the summary judgment for each of the four deficiencies under those regulations. We decline to review any of them, because they are neither arbitrary and capricious nor unsupported by substantial evidence. See Cedar Lake, 619 F.3d at 456.

1.

Two of the findings of noncompliance arose from the requirement that the facility “develop and implement written policies and procedures that prohibit mistreatment, neglect, and abuse of residents and misappropriation of resident property.” 42 C.F.R. § 483.13(c). “[Failure to either develop or implement the required procedures is sufficient to preclude substantial compliance.” Miss. Care Ctr. v. HHS, 517 Fed.Appx. 209, 213 (5th Cir. 2013).

Cedar Manor does not dispute the facts that support the findings of noncompliance. Cedar Manor faded to secure the Hoyer straps on Resident #l’s wheelchair despite repeated warnings from his family. Cedar Manor took no other preventive action, such as providing Resident #1 with better supervision. Resident #1 then suffered a fall and two broken femurs after those straps became tangled in the wheels of his chair. Furthermore, even after such an accident, Cedar Manor did not secure the straps on Resident #4’s wheelchair, the second deficiency finding.

Cedar Manor’s counter-arguments are not about the facts themselves, but are legal questions about the coverage of the regulation. Cedar Manor submits that neither isolated incidents nor a generalized finding of neglect can be the basis for a finding of noneompliance with Section 483.13(c). Cedar Manor identifies the decision of one ALJ who refused to infer, from an isolated incident, a failure to implement policy. See Heron Pointe Health & Rehab., No. CR1401, 2006 WL 321181, at *8-9 (2006). But prior ALJ decisions are not binding on the DAB or other ALJs, and Heron Pointe’s reasoning on this issue has been rejected. Thus, the DAB’s findings of noncompliance with this regulation were neither arbitrary and capricious nor unsupported by substantial evidence.

2.

The December survey found that Cedar Manor had failed to ensure that “[t]he resident environment remain[ed] as free of accident hazards as is possible; and (2) Each resident receive[d] adequate supervision and assistance devices to prevent accidents.” 42 C.F.R. .§ 483.25(h). Again, the facts regarding the Hoyer straps on Resident #1 and Resident #4’s wheelchairs are undisputed. Cedar Manor contends that Resident #4 never fell out of the wheelchair, but that is irrelevant to whether the facility was in substantial compliance with a regulation regarding accident-prevention. See Clermont Nursing & Convalescent Ctr., DAB No. 1923, 2004 WL 1764714, at *12 (2004). The DAB’s finding of noneompliance with Section 483.25(h) was neither arbitrary and capricious nor unsupported by substantial evidence.

3.

The December survey found that Cedar Manor was out of substantial compliance with the requirement that the “facility ... be administered in a manner that enables it to use its resources effectively and efficiently to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident.” 42 C.F.R. § 483.75. Noncompliance with Section 483.75 “is a derivative finding, based on the presence of other deficiencies.” Asbury Ctr. v. HHS, 77 Fed.Appx. 853, 857 (6th Cir. 2003). Such findings were appropriate as discussed above. Furthermore, Resident #4’s nurse aide told the surveyor that she had not been trained in the operation of the Hoyer sling. Therefore the finding of noncompliance with Section 483.75 was neither arbitrary and capricious nor unsupported by substantial evidence.

B.

' The January survey resulted in findings that Cedar Manor was noncompliant with 42 C.F.R. §§ 483.25(c), 483.65, ahd 483.75(f). The DAB affirmed the summary judgment on each finding of noncompliance, and there is sufficient evidence to support each of them. See Cedar Lake, 619 F.3d at 456.

1.

[8] The January survey found that Cedar Manor failed to “ensure that—(1) A resident who enters the facility without pressure sores does not develop pressure sores unless the individual’s clinical condition demonstrates that they were unavoidable; and (2) A resident having pressure sores receives necessary treatment and services to promote healing, prevent infection and prevent new sores from developing.” 42 C.F.R. § 483.25(c). A failure to provide care in accordance with the patient’s care plan can constitute a violation of this regulation. See Windsor Place v. HHS, 649 F.3d 293, 299 (5th Cir. 2011). In the case of Resident #7, the care plan called for nurses to “[cjleanse [Resident #7’s] perineal area with soap and water following each urination,” and to change gloves prior to applying barrier cream that help[s] prevent pressure sores. The affidavit of the Director of Nursing, regarding the incident, does not dispute the material facts and reveals she was not present when the care was provided. Cedar Manor disputes the number of pressure sores found on Resident #7, but that was not the basis for the finding of noncompliance and is thus not material. The DAB’s holding is neither arbitrary and capricious nor unsupported by substantial evidence.

2.

Title 42 C.F.R. § 483.65 requires that “[t]he facility must establish and maintain an infection control program designed to. provide a, safe, sanitary, and comfortable .environment and to help prevent the development and transmission of disease and infection.” The undisputedly deficient perineal care that Resident #7 received counter to the care plan is also sufficient to support the DAB’s holding as to this regulation. That Cedar Manor maintains infection control policies and in-service training does not create a material dispute over the failure to implement those policies when providing care.

8.

The third January noncomplianee finding arose from a failure to “ensure that nurse aides are able to demonstrate competency in skills and techniques necessary to care for residents’ needs, as identified through resident assessments, and described in the plan of care.” 42 C.F.R. § 483.75(f). “Demonstrating competency in a skill set requires correctly carrying skills out.” Heritage House of Marshall, Health & Rehab. Ctr., DAB No. 2566, 2014 WL 2921190, at *13 (2014). Cedar Manor offered evidence of its nurse’s training and experience but nothing to contest that the nurse had provided improper perineal care. Cedar Manor relies on a previous ALJ decision that found that a trained nurse’s actions that did not cause actual harm was still substantially compliant. See Malee Health, DAB No. CR2525, 2012 WL 1670506, at *9. But prior ALJ decisions are not binding on the DAB, and Heritage House distinguished the “more than minimal harm” of improper perineal care from the failure to use proper lifting procedures in Mabee. Heritage House, 2014 WL 2921190, at *13. The DAB’s decision was neither arbitrary and capricious nor unsupported by substantial evidence.

III.

Cedar Manor contests the imposition of the $350-per-day CMPs for the period after a DADS survey found that the December violations had cleared on January 16, 2014, but before the subsequent survey found the violations related to Resident #7 on January 27, 2014. The imposition of CMPs is also' reviewed using the same deferential APA standard. Cedar Lake, 619 F.3d at 456. The penalties for this alleged gap period will be upheld if there is substantial evidence to support that conclusion and it is not arbitrary and capricious. Id,

CMS has the authority to impose CMPs on facilities that are out of substantial compliance with the Medicare regulations. 42 C.F.R. § 488.400. The penalties continue until “[t]he facility has achieved substantial compliance, as determined by CMS or the State based upon ,a revisit or after an examination of credible written evidence....” 42 C.F.R. § 488.454(a)(1). CMS’s determination that a facility has not achieved substantial compliance takes precedence over a decision by a state agency that a facility is in substantial compliance. 42 C.F.R. § 488.452(a)(2). Furthermore, a state agency’s finding that past deficiencies have cleared is not equivalent to a finding that the facility is in substantial compliance. Meadowbrook Manor — Naperville, DAB No. 2173, 2008 WL 2625664, at *9 (2008).

Despite' the fact that DADS determined that the December violations had cleared on January 16, 2014, it did not issue a finding that Cedar Manor had achieved substantial compliance. On February 18, 2014, CMS certified that it had achieved substantial compliance as of February 1, 2014. That finding of substantial compliance controls over the DADS finding that prior violations had cleared. See 42 C.F.R. § 488.452(a)(2). Cedar Manor maintains that CMS’s findings of substantial compliance focus on the January survey violations and include no other evidence that Cedar Manor was out of substantial compliance during this gap period. But, the burden to prove that a facility has returned to substantial compliance is on the facility, not CMS. Cedar Manor has not provided evidence to meet that burden beyond the DADS finding, and it was not arbitrary or capricious for the DAB to impose the penalties for the gap period.

The summary-judgment findings and the imposition of CMPs by the DAB are neither arbitrary nor capricious and are supported by substantial evidence. The ..petition for review is DENIED.

      . We cite the regulations as they were numbered at the time of the proceedings at issue. To avoid confusion, however, we note that there was a major revision of the pertinent regulations effective November 28, 2016. Title 42 C.F.R. § 483.13(c) is now § 483.12(b)(1); § 483.25(h) is now § 483.25(d); § 483.75 is now ,, § 483,70; § 483.25(c) is now § 483.25(b)(1) and has slightly different wording; § 483.65 is now § 483.80; and § 483.75(f) is now § 483.35(c).

      . 42 C.F.R. §§ 483.13(c), 483.25(h)(l)-(2), and 483.75.

      . A Hoyer sling is a lifting device used to assist patients in and out of their wheelchairs.

      . 42 C.F.R. §§ 483.25(c), 483.65, and 483.75(f).

      . Britthaven of Chapel Hill, DAB No. 2284, 2009 WL 4519868, at *4 (2009) (holding that an ALJ decision is not binding on the DAB or other ALJs); see, e.g., Oceanside Nursing & Rehab Ctr., DAB No. 2382, 2011 WL 3251314, at *6 (2011) (rejecting the reasoning of Heron Pointe).

      . See, e.g., Chi. Ridge Nursing Ctr., DAB No. 2151, 2008 WL 546360, at *17 (2008) ("We have consistently rejected the contention, as being contrary to the structure and purposes of the nursing home enforcement scheme, that CMS must affirmatively prove that non-complianed exists on each day that a remedy is in effect after the first day of noncompliance.”).


source: Caselaw Access Project

author: LESLIE H. SOUTHWICK, Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee v. Keilon Yidal SANDERS, also known as Bird, Defendant-Appellant
    No. 15-10321
    United States Court of Appeals, Fifth Circuit.
    Filed December 15, 2016

      Suzanna Odette Etessam, James Wesley Hendrix, Assistant U.S. Attorneys, U.S. Attorney’s Office, Northern District of Texas, Dallas, TX, for Plaintiff-Appellee.
    Keilon Vidal Sanders, Pro Se.
    Before ELROD, SOUTHWICK, and GRAVES, Circuit Judges.
   LESLIE H. SOUTHWICK, Circuit Judge:

Keilon Vidal Sanders was sentenced to 120 months imprisonment after he pled guilty to one count of conspiracy involving 1,000 kilograms or more of marijuana. Sanders now argues that his guilty plea was entered involuntarily and that the district court violated his right to self-representation. We AFFIRM as to the voluntariness of the plea but VACATE Sanders’s sentence and REMAND for re-sentencing because the district court failed to honor his request for self-representation. . .

FACTUAL AND PROCEDURAL BACKGROUND

Sanders was charged in an eleven-count indictment with involvement in a narcotics conspiracy with nineteen other defendants. He was initially represented by court-appointed counsel, Michael Ray Harris, but soon moved to dismiss his attorney. Sanders claimed Harris had little experience in federal court and had become angry when Sanders was unwilling to sign a plea agreement. At no point in his first motion did Sanders ask to represent himself. Instead, he asked the court to appoint new counsel.

The district court granted Harris’s motion to withdraw as counsel and substituted Brook Busbee. Shortly thereafter, Sanders pled guilty to the first count of the indictment. Before accepting the plea, the‘court asked Sanders whether he understood the charges against him. He responded affirmatively and waived a reading of the indictment. Even so, the court required the prosecutor to explain the elements of the offense with which Sanders was charged. After she did so, Sanders agreed he committed the essential elements. Sanders also told the court that he had gone over the plea agreement in “great detail” with his attorney and was satisfied with her representation. Later in the colloquy, the court inquired specifically as to voluntariness, and Sanders reported he had not been threatened or forced into pleading guilty. Further, no one promised him anything in exchange for his plea.

The following month, Sanders sent a letter to the court seeking to rescind his guilty plea on the basis that Busbee had been working with the Government and not on his behalf. The court struck his correspondence from the record because he had an attorney who alone could make filings on'his behalf. The court directed Sanders to convey his concerns to his appointed attorney. The court noted that Sanders was not entitled to “hybrid representation” — representation “partly by counsel and partly by himself.” In response, Sanders filed a document asserting he should have control over his own defense and renewed his motion to withdraw his guilty plea. Again, the court struck the pleadings from the record. At no point during this correspondence did Sanders explicitly request to represent himself.

Two weeks later, Sanders moved to dismiss Busbee as his attorney. His motion did not explicitly reference his right to self-representation but cited Faretta v. California, 422 U.S, 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), to support his right to waive the assistance of counsel. The court did not rule on his motion until roughly eight months later, when it removed Busbee as counsel and substituted Jeffrey A Ansley. In the interim, Sanders argues, the judge “got very upset” after he requested permission to proceed pro se during a status conference. Sanders’s handwritten account reveals he sought to remove his attorney and requested being allowed to choose between having counsel and proceeding pro se.

After Ansley’s appointment, Sanders filed a “Petition to Represent Self Under the Sixth Amendment of the Constitution [of] the United States of America.” The Government characterizes this correspondence as part of Sanders’s “slew of indecipherable pro se pleadings.” Perhaps, but the motion clearly expresses Sanders’s desire to “exercise his right to defend himself.” As a result, Ansley filed multiple motions to withdraw as counsel, confirming Sanders’s desire to proceed pro se. The court did not formally grant Ansley’s re: quest until after Sanders’s sentencing hearing.

Ansley was present with Sanders at that hearing. Initially, the court warned Sanders of the dangers of self-representation: the judge analogized Sanders’s request to “cutting [himself] open and taking [his own appendix] out.” The court encouraged Sanders again to speak with his attorney, after which Ansley reiterated Sanders’s desire to proceed without assistance. The court then denied Ansley’s request to withdraw but agreed to allow Sanders to speak on his own behalf with Ansley acting as standby counsel. The court later noted that if counsel had objections to its ruling, Ans-ley and the Government could “take [them] to the Fifth Circuit.”

At the hearing, the presentence report (PSR) became an issue. It assigned a base offense level of 32, a two-level increase for possessing a dangerous weapon, a three-level increase for having a managerial role, and a three-level decrease for his acceptance of responsibility. The court asked Sanders to argue his previous attorney’s objections to the PSR. Sanders explained he had not received a copy of those objections and had received the PSR only two days before the hearing. After a somewhat sharply worded exchange between Sanders and the court, Sanders informed the court he needed more time to read the PSR and develop his own objections. The court apparently believed Sanders was attempting to delay the proceedings, so it. required Sanders to consult with Ansley before proceeding any further.

Finally, the court discussed the guidelines calculation. Before closing argument, the Government stated it was not opposed to removing the two-level enhancement for possession of a firearm. Following that reduction, Sanders’s guidelines range was 121 to 151 months with a 120-month mandatory minimum. The court adopted the mandatory minimum sentence and imposed a five-year term of supervised release. Before the hearing formally concluded, the judge stated, “I want the record to reflect I did grant the motion to withdraw filed by Mr. Ansley, and he was the standby lawyer today.” Sanders timely filed his notice of appeal.

DISCUSSION

Sanders now alleges four errors. First, he argues the district court lacked subject matter jurisdiction. Second, he claims the district court erred by accepting his guilty plea, which, he argues, was entered involuntarily. Third, he argues the district court violated his right to self-representation by foi-cing him to accept Ansle/s counsel. Finally, Sanders asserts he did not receive a copy of his PSR at least 35 days before the sentencing hearing, which prevented him from preparing for sentencing and, thus, deprived him of the opportunity to defend himself. See Fed. R. Cbim. P. 32(e)(2).

I, Subject Matter Jurisdiction

Sanders challenges the district court’s subject matter jurisdiction. A criminal, case is properly before the district court if the indictment charges the defendant “with an offense against the United States in language similar to that used by the relevant statute.” United States v. Scruggs, 714 F.3d 258, 262 (5th Cir. 2013) (quotation marks omitted). This indictment so charged Sanders, so the district court had subject matter jurisdiction.

II. Coerced Guilty Plea,

‘Sanders argues that his guilty plea was “made under duress and coercion,” thereby invalidating the plea and the plea agreement. The Government contends that review is for plain error because Sanders did not object to the sufficiency of the plea colloquy. On the other hand, review is for harmless error “[w]hen a defendant objects at the district court level to the court’s failure to comply with Rule 11 during the plea colloquy.” United States v. Powell, 354 F.3d 362, 367 (5th Cir. 2003). Sandérs repeatedly filed motions to withdraw his guilty plea at the district court level. The difficulty with deciding the effectiveness of these motions in preserving error is that Sanders filed each motion while he was represented by counsel. As a result, the court struck some of Sanders’s personal filings from the record. The district court was certainly correct that Sanders was not entitled to representation by himself and by appointed counsel. United States v. Daniels, 572 F.2d 535, 540 (5th Cir. 1978). We conclude that there was no properly filed motion preserving the issue of the validity of the plea.

We thus engage in plain-error review. Sanders must show an obvious error that affects his substantial rights. Puckett v. United States, 556 U.S. 129, 135, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009). There must be “a reasonable probability that, but for the eiTor, he would not have entered the plea.” United States v. Dominguez Benitez, 542 U.S. 74, 83, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004). The court may then, in its discretion, correct the error only if it “seriously affects the fairness, integrity or public reputation of judicial proceedings.” Puckett, 556 U.S. at 135, 129 S.Ct. 1423 (quotation marks omitted).

Sanders argues that he understood neither “the nature of the charges against him nor the consequences of his plea.” Sanders also argues the prosecutor effectively coerced him into pleading guilty by threatening to withhold her substantial-assistance motion.

Federal Rule of Criminal Procedure 11(b)(2) provides: “Before accepting a plea of guilty or nolo contendere, the court must address the defendant personally in open court and determine that the plea is voluntary and did not result from force, threats, or promises (other than promises in a plea agreement).” The district court satisfied these obligations. The record as a whole indicates Sanders was neither threatened nor forced into pleading guilty. Sanders has not demonstrated the district court plainly erred when it accepted his guilty plea. See Puckett, 556 U.S. at 135, 129 S.Ct. 1423.

III. Denial of Right to Self-Representation

Finally, Sanders argues the district court deprived him of the opportunity to defend himself by never granting his multiple motions for self-representation.

Challenges that a constitutional right to self-i'epi-esentation was denied are reviewed de novo. United States v. Jones, 421 F.3d 359, 363 (5th Cir. 2005). Of importance on this appeal, the “impermissible denial of self-representation cannot be harmless” and requires automatic reversal. United States v. Cano, 519 F.3d 512, 516 (5th Cir. 2008) (quotation marks omitted).

Defendants have a constitutional right to represent themselves in federal court. Faretta, 422 U.S. at 815-21, 95 S.Ct. 2525. A defendant’s request to proceed pro se must be clear and unequivocal, and the record must show that he “knowingly and intelligently” waived the right to counsel. Id. at 835, 95 S.Ct. 2525. Once a clear, unequivocal, knowing, and intelligent invocation has been made, the court cannot force a defendant to accept the assistance of counsel. Id. at 835-36, 95 S.Ct. 2525. Even so, the right to self-representation is limited by the trial court’s responsibility to prevent delay and other obstructionist behavior. United States v. Long, 597 F.3d 720, 726 (5th Cir. 2010) (citation omitted).

Sanders contends he made multiple motions to represent himself at the sentencing heating. The Government contends Sanders did not unequivocally voice his request until the hearing itself. We agree that several of the initial motions were equivocal. It was not until March 2015, ten months after getting his third attorney and a month before his sentencing hearing, that Sanders made it clear that he wished to represent himself. At that time, he filed a “Petition to Represent Self Under the Sixth Amendment of the Constitution [of] the United States of America.” In this petition, Sanders expressed his “desire and wish to exercise his right to defend himself.”

No ruling on Sanders’s motion was made before the sentencing hearing. Ansley was present at sentencing, but Sanders reiterated that he “didn’t ask for Mr. Ansley.” The court insisted Sanders “communicate with him and be cooperative with him.” Sanders consulted with Ansley, and Ansley again reported Sanders’s desire to proceed pro se. After filing a pre-hearing written motion and without any wavering after being questioned at the hearing, Sanders was entitled to represent himself. The court, though, denied the request by saying it would not “let [Ansley] 'withdraw.” The court permitted Sanders to speak for himself but referred to Ansley as his “standby lawyer” throughout the hearing. At the end of the hearing, the court characterized its actions as having allowed the attorney to withdraw but requiring that he participate as a standby lawyer. The record does not support such a characterization. At all times, except perhaps at the very end of sentencing, the district court required Sanders to act through Ansley.

We conclude by addressing the district court’s perception that Sanders’s desire to represent himself was simply an effort to delay the proceedings. Had that been so, the court may not have erred. See Long, 597 F.3d.at 729. Nothing, though, supports that Sanders was simply seeking to delay. He requested permission to proceed without counsel nearly one month before the sentencing hearing, and he never requested a delay or continuance of the proceedings themselves. The court’s frustration with Sanders is understandable. It had appointed three different attorneys for him. But the good efforts of the district court cannot override what has to be labeled Faretta error, meaning that the court failed to honor a clear request for self-representation. Faretta, 422 U.S. at 835, 95 S.Ct. 2525. That request was made well in advance of the hearing. We therefore conclude that self-representation did not occur for most of the hearing.

Because we hold that the district court violated Sanders’s right to self-representation by forcing him to accept Ansley’s counsel, we need not reach the issue of whether Sanders’s right to self-representation was implicated when he did not receive his PSR in a timely manner.

⅜ ⅜ ⅜

We AFFIRM the judgment of conviction based on Sanders’s guilty plea. The sentence is VACATED and the matter REMANDED for resentencing.


author: JAMES E. GRAVES, JR., Circuit Judge:

text:
    Susan L. VAUGHAN, Plaintiff-Appellant v. ANDERSON REGIONAL MEDICAL CENTER, Defendant-Appellee
    No. 16-60104
    United States Court of Appeals, Fifth Circuit.
    FILED December 16, 2016

      Robert Nicholas Norris, Louis Hanner Watson, Jr., Esq., Watson & Norris, P.L.L.C., Jackson, MS, for Plaintiff-Appellant.
    Romney Hastings Entrekin, Esq., Peeler Grayson Lacey, Jr., Esq., Benjamin Blue Morgan, Esq., Attorney, Burson En-trekin Orr Mitchell & Lacey, P.A., Laurel, MS, for Defendant-Appellee.
    Before BENAVIDES, HAYNES, and GRAVES, Circuit Judges.
   JAMES E. GRAVES, JR., Circuit Judge:

This single-issue interlocutory appeal arises out of a wrongful termination lawsuit filed by Susau Vaughan, a nurse supervisor, against Anderson Regional Medical Center. Vaughan alleges the Medical Center discharged her in retaliation for raising age-discrimination complaints. Vaughan’s claims invoke the Age Discrimination in Employment Act (ADEA), and she seeks, among other things, damages for pain and suffering and punitive damages.

The- district court dismissed Vaughan’s claims for pain and suffering damages and punitive damages because Fifth Circuit precedent bars such recoveries under the ADEA. The district court’s dismissal order did, however, note divergent views held by other circuits and the Equal Employment Opportunity Commission. Finding the damages issue “a controlling question of law as to which there is substantial ground for difference of opinion,” the district court certified an appeal to this Court under 28 U.S.C. § 1292(b). We granted leave to file an interlocutory appeal.

The district court correctly concluded that Dean v. Am. Sec. Ins. Co., 559 F.2d 1036 (5th Cir. 1977) requires dismissal of Vaughan’s pain and suffering and punitive damages claims. Accordingly, we AFFIRM.

JURISDICTION

We have jurisdiction over Vaughan’s interlocutory appeal pursuant to 28 U.S.C. § 1292(b). The district court properly exercised its jurisdiction over the federal statutory claim under 28 U.S.C. § 1331.

STANDARD OF REVIEW

The district court dismissed Vaughan’s damages claims pursuant to Fed. R. Civ. P. 12(b)(6). Accordingly, this Court reviews the decision below de novo, “accepting all well-pleaded facts as true and viewing those facts in the light most favorable to the plaintiff.” True v. Robles, 571 F.3d 412, 417 (5th Cir. 2009). “Dismissal is appropriate when the plaintiff has not alleged ‘enough facts to state a. claim to relief that is plausible on its face’ and has failed to ‘raise a right to relief above the speculative level.’ ”. Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).

ANALYSIS

The parties dispute Dean’s applicability. The district court relied upon Dean below, but certified its ruling for interlocutory review after recognizing a circuit split regarding the availability of pain and suffering and punitive damages in ADEA retaliation cases.

This Court adheres to a “rule of orderliness,” under which a panel may not overturn a controlling precedent “absent an intervening change in law, such as by a statutory amendment, or the Supreme Court, or our en banc court. Indeed, even if a panel’s interpretation of the law appears flawed, the rule of orderliness prevents a subsequent panel from declaring it void.” Sprong v. Fidelity Nat’l Property & Cas. Ins. Co., 787 F.3d 296, 305 (5th Cir. 2015) (block quotation and citation omitted). To decide whether the rule of orderliness applies, we must therefore analyze whether: (1) Dean is distinguishable from this case; or (2) an intervening change in law justifies setting Dean aside.

We conclude that the answer to both questions is “no.”

I. Dean is not distinguishable

We perceive no basis upon which to distinguish Dean. Vaughan concedes that Dean forecloses pain and suffering and punitive recoveries for ADEA age discrimination claims, see Appellant’s Br. at 2, but suggests that Dean does not control ADEA retaliation claims. We disagree.

Dean held in unqualified terms that “neither general damages [i.e., compensatory damages for pain and suffering] nor punitive damages are recoverable in private actions posited upon the ADEA.” Dean, 559 F.2d at 1040. ADEA age discrimination and retaliation claims are equally “private actions posited upon the ADEA,” and the ADEA has contained a prohibition on employer retaliation since its inception. See Age Discrimination in Employment Act of 1967, Pub. L. 90-202 at §. 4(d), 81 Stat. at 603 (1967) (“It shall be unlawful for an employer to discriminate against any of his employees or applicants for employment, for an employment agency to discriminate against any individual, or, for a labor organization to discriminate against any member thereof or applicant for membership, because such individual, member or applicant for membership has opposed any practice made unlawful by this section, or because such individual, member or applicant for membership has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or litigation under this Act.”) (current version at 29 U.S.C. § 623(d)). A plaintiff could,file a retaliation claim under the ADEA when we decided Dean, and Dean contains no suggestion that its holding regarding damages for “private actions posited upon the ADEA” silently excluded ADEA retaliation actions. See Dean, 559 F.2d at 1036.

Dean’s holding therefore controls this case if, as we will conclude below, no intervening changes in law undermine its continued vitality.

II. No intervening change in law justifies setting. Dean aside

Vaughan’s effort to undermine Dean relies heavily upon the 1977 amendments' to the remedies provided for retaliatory discharges under the Fair Labor Standards Act (FLSA), a statute we interpret to provide remedies “consistent” with the ADEA. Vaughan’s argument that the 1977 FLSA amendments enlarged the remedies available for ADEA retaliation claims finds support in the decisions of at least one circuit, and the EEOC endorses that interpretation. See Moskowitz v. Trustees of Purdue Univ., 5 F.3d 279, 284 (7th Cir. 1993) (indicating that the 1977 FLSA amendments “enlarge[d] the remedies ... beyond those standardly available for ... ADEA ... violations” when a plaintiff brings retaliation claims); see also EEOC Directive No. 915.004, EEOC Enforcement Guidance on Retaliation and Related Issues, at n. 186 (Aug. 25, 2016) (“The FLSA, as amended in 1977, 29 U.S.C. § 216(b), authorizes compensatory and punitive damages for retaliation claims under ... the ADEA.”), available at https://www. eeoc.govfiaws/guidance/retaliation-guidance.cfin#_ftnrefl86 (last accessed Dec. 12,2016).

We conclude, however, that Vaughan’s argument fails to recognize the 1977 FLSA amendments incorporated remedial language substantively identical to passages already provided in the ADEA. Put simply, the 1977 FLSA amendments do not disturb our holding in Dean, because they added language to the FLSA that we have already construed in the context of the ADEA — in Dean.

We issued our opinion in Dean on September 23, 1977, more than a month prior to the 1977 FLSA amendments. Compare Dean, 559 F.2d at 1036, with-Fair Labor Standards Amendments of 1977, Pub. L. No. 95-151, 91 Stat. 1245 (NoV. 1, 1977) (current version at 29 U.S.C. §§ 201-219). By the time we interpreted it in Dean, the ADEA had for nearly ten years “au-thorised] a court to grant such ‘legal or equitable relief as may be appropriate to effectuate the purposes of this chapter, including without limitation judgments compelling employment, reinstatement or promotion, or enforcing the liability for amounts deemed to be unpaid minimum wages or unpaid overtime compensation under this section.’” Dean, 559 F.3d at 1037-38; see also Age Discrimination in Employment Act of 1967, Pub. L. No. 90-902 at § 7(b), 81 Stat. 604-05 (1967) (current version at 29 U.S.C. § 626(b)). Several weeks after we decided Dean, Congress added the following substantively equivalent remedial language to the FLSA: “Any employer who violates the provisions of section 15(a)(3) of this Act, 29 USC 215, shall be liable for such legal or equitable relief as may be appropriate to effectuate the purposes of section 15(a)(3), including without limitation employment, reinstatement, promotion, and the payment of wages lost and an additional equal amount as liquidated damages.” 91 Stat. 1245 at 1252 (current version at 29 U.S.C. § 216(b)).

Given the remedial passages’ textual similarities, we conclude that the 1977 FLSA amendments simply brought the FLSA’s remedies for employer retaliation into line with the ADEA’s remedies for similar conduct. This interpretation eom-ports with our history of applying Dean long after the 1977 FLSA amendments. See Smith v. Berry Co., 165 F.3d 390, 396 (5th Cir. 1999) (citing Dean for the proposition that “punitive damages and damages for. mental pain and suffering ... are not available” for age discrimination claims under the ADEA). The Eleventh Circuit, which views Fifth Circuit precedents predating Sept. 30, 1981, as binding precedent, has also continued to cite Dean. See Snapp v. Unlimited Concepts, Inc., 208 F.3d 928, 938 (11th Cir. 2000) (“We ... feel some constraint to exclude punitive damages from the ‘legal relief provided in the [FLSA] by the former Fifth Circuit’s decision in Dean.”); see also Goldstein v. Manhattan Industries, Inc., 758 F.2d 1435, 1446 (11th Cir. 1985) (citing Dean for the proposition that “neither punitive damages nor compensatory damages for pain and suffering are recoverable under the ADEA.”). Within this circuit, our district courts have reasonably inferred that Dean remains good law, and therefore forecloses pain and suffering and punitive damages under the FLSA. See, e.g., Douglas v. Mission Chevrolet, 757 F.Supp.2d 637, 640 (W.D. Tex. 2010) (“Because of the Fifth Circuit’s expressed desire for remedies under the ADEA and the FLSA to be interpreted consistently, and because the Fifth Circuit has held that emotional distress damages and punitive damages are unavailable under the ADEA,. this , Court holds that emotional distress damages and punitive damages are unavailable in an FLSA anti-retaliation claim.”).

Having concluded that the 1977 FLSA amendments’ borrowing of the ADEA’s remedial language does not constitute an intervening change in the ADEA warranting, our departure from Dean, we address two other points raised by Vaughan’s briefing.

First, the fact that the EEOC believes the ADEA permits pain and suffering and punitive recoveries does not constitute an intervening legal change sufficient to displace Dean. The EEOC has stated its interpretation of the ADEA’s remedial provisions in a policy directive and at least three sections of its Cpmpliance Manual, and we are mindful that the EEOC’s interpretations of the ADEA reflect “a body of experience and informed judgment to which courts and litigants may properly resort for guidance.” Fed. Exp. Corp. n Holowecki, 552 U.S. 389, 399, 128 S.Ct. 1147, 170 L.Ed.2d 10 (2008) (quoting Bragdon v. Abbott, 524 U.S. 624, 642, 118 S.Ct. 2196, 141 L.Ed.2d 540 (1998)). The EEOC’s interpretation merits Skidmore deference “to the extent that ... interpretation[] ha[s] the power to persuade.” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 111 n.6, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002) (quotations and citations omitted); see also Holowecki, 552 U.S. at 399, 128 S.Ct. 1147. In this case, the EEOC’s interpretation of the ADEA’s remedial provision appears to depend almost entirely upon Moskowitz, an opinion we find unpersuasive. Even if we found the EEOC’s interpretation persuasive, however, it would not provide a sufficient basis for departing from an established precedent. See Spong v. Fid. Nat. Prop. & Cas. Ins. Co., 787 F.3d 296, 306 (5th Cir. 2015) (noting that “[a]n intervening change in law must be binding on this court,” and “merely persuasive, not binding” interpretations do not overcome the rule of orderliness).

Second, the transfer of ADEA functions previously performed by the Secretary of Labor to the EEOC does not constitute an intervening change in law sufficient-to displace Dean. When we decided Dean, the ADEA gave certain roles and powers to the Secretary of Labor. See Dean, 559 F.2d at 1038-40. As Vaughan notes, the current version of the statute gives those roles and powers to the EEOC. The transfer of ADEA functions occurred pursuant to Reorganization Plan No. 1 of 1978, which called for a straightforward substitution of the EEOC in place of certain statutory references to the Secretary of Labor. Vaughan fails to demonstrate that the transfer of functions created any significant differences for ADEA plaintiffs.

For example, Vaughan argues that “[i]n the’ past private suits for age discrimination were secondary to administrative proceedings by the Secretary of Labor, which did not allow for compensatory damages.” Appellant’s Br, at 5. The ADEA’s current text demonstrates no less of a preference for administrative proceedings than the version Dean interpreted. In Dean, we concluded that the ADEA “patently encouraged and preferred ,.. administrative remedies and suits brought by the Secretary of Labor ,,. to private actions.” Dean, 559 F.2d at 1038. As evidence of this preference, we noted two specific aspects of the statute: (1) its requirement that private individuals give the Secretary of Labor 60 days’ advance notice of their intention to file a private ADEA claim, and (2) the Secretary of Labor’s ability to cut off an individual’s right to maintain a private ADEA suit by commencing an enforcement action within the notice period. See id. Those aspects of the statute remain the same, other than the substitution of the EEOC for the Secretary of Labor. See 29 U.S.C. § 626(d)(1) (notice requirement); § 626(c)(1) (termination of private right of action upon commencement of EEOC action).

CONCLUSION

Our opinion in Dean applies to all “private actions posited upon the ADEA,” Dean, 559 F.2d at 1040, including Vaughan’s ADEA retaliation claim. Under Dean, Vaughan may not invoke the ADEA as a basis for general compensatory damages for pain and suffering or punitive damages. Id. Perceiving no intervening change in law that would lead us to set Dean aside, we AFFIRM.

      . To avoid any confusion of terms, this opinion uses the phrase “pain and suffering damages” as a more precise method of referencing the "general compensatory dámages” Dean foreclosed. Dean's convention of referring to pain and suffering damages, which a plaintiff may not recover under the ADEA, as “general compensatory damages” does not prevent other types of ADEA recoveries our precedents sometimes label “compensatory,” such as back pay awards. See Dean, 559 F.2d at 1039 (recognizing availability of ADEA back pay awards); see also Tyler v. Union Oil Co. of Cal., 304 F.3d 379, 400-02 (5th Cir. 2002) (referring to a permissible ADEA back pay award as "compensatory damages”).
      The Medical Center’s motion below sought dismissal of all "compensatory” damages claims, “including but not limited to deep pain, humiliation, anxiety and emotional distress,” and its appellate briefing phrases the question before this court as “whether a plaintiff can be.awarded general compensatory (e.g., pain and suffering) and/or punitive damages for an ADEA retaliation claim,” Ap-pellee's Br. at 1. We emphasize that the examples of damages the Medical Center identifies — damages we hold Dean forecloses in all private ADEA actions — should not be read to limit the availability of other types of monetary damages the ADEA plainly permits, such as back pay awards.

      . See Lubke v. City Of Arlington, 455 F.3d 489, 499 (5th Cir. 2006) ("Because the remedies available under the ADEA and the FMLA both track the FLSA, cases interpreting remedies under the statutes should be consistent.”).

      . See Bonner v. City of Prichard, Ala., 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc) (stating that Fifth Circuit decisions handed down prior, to the close of business of Sept, 30, 1981, serve as binding precedent within the Eleventh Circuit).

      . In the Snapp litigation, the district court denied defendant’s motion to dismiss a claim for pain and suffering damages. See Appellees’ Br. at *2, Snapp v. Unlimited Concepts, No. 98-2936-GG, 1999 WL '33617325 (11th Cir. 1999). The Eleventh Circuit never analyzed the substance of that ruling, as the jury “awarded ... no money in compensatory damages.” Id. at *4.

      . One district court within this circuit relied upon Dean as a bar to FLSA punitive damages claims, but did not analyze or apply Dean as a bar to compensatory damages for injuries including mental anguish. See Little v. Tech. Specialty Prod., LLC, 940 F.Supp.2d 460, 480 (E.D. Tex. 2013). That case appears to be an outlier. Little relied upon Lee v. U.S. Sec. Associates, Inc., No. A-07-CA-395-AWA, 2008 WL 958219, at *7 (W.D. Tex. Apr. 8, 2008), but the Western District of Texas actually changed its position before the Little ruling. See Douglas, 747 F.Supp.2d at 640 (finding that the FLSA does not permit emotional distress damages) (NB: Douglas does not expressly acknowledge Lee, but Douglas rejects the same out-of-circuit precedents Lee relied upon).

        .See EEOC Directive No. 915.004, EEOC Enforcement Guidance on Retaliation and Related Issues, at n. 186 (Aug. 25, 2016) ("The FLSA, as amended in 1977, 29 U.S.C. § 216(b), authorizes compensatory and punitive damages for retaliation claims under .., the ADEA.”), available at https://www.eeoc, gov/laws/guidance/retaliation-guidance.cfm#_ ftnrefl86 (last accessed Dec, 12, 2016); see also EEOC Compliance Manual § 8, Charge-Processing Outline at IV(B), 2006 WL 4672791; EEOC Compliance Manual § 8-III, Special Remedial Issues at B(l), 2006 WL 4672794; EEOC Compliance Manual § 10, Compensation Discrimination, 2006 WL 4672894.

      . Moskowitz suggested that the 1977 FLSA amendments "enlarge[d] the remedies .,. beyond those standardly available for ... ADEA .., violations” when a plaintiff brings retaliation claims, 5 F.3d at 284. Because the ADEA already permitted retaliation claims before the 1977 FLSA amendments, and appears to have supplied the 1977 FLSA’s remedial text, we decline to view Moskowitz as persuasive authority.

      . See Reorganization Plan No. 1 of 1978, 92 Stat. 3781 at § 2 (1978) (“All functions vested in the Secretary of Labor or in the Civil Service Commission pursuant to Sections 2, 4, 7, 8, 9, 10, 11, 12, 13, 14, and 15 of the Age Discrimination in Employment Act of 1967, as amended, (29 U.S.C. 621, 623, 626, 627, 628, 629, 630, 631, 632, 633, and 633a) are hereby transferred to the Equal Employment Opportunity Commission. All functions related to age discrimination administration and enforcement pursuant to Sections 6 and 16 of the Age Discrimination in Employment Act of 1967, as amended, (29 U.S.C. 625 and 634) are hereby transferred to the Equal Employment Opportunity Commission.”),


author: GREGG COSTA, Circuit Judge: JONES, Circuit Judge,

text:
    Santiago PINEDA, and all others similarly situated under 29 U.S.C. 216(B); Maria Pena, Plaintiffs-Appellants Cross-Appellees v. JTCH APARTMENTS, L.L.C.; Simona Vizireanu, Defendants-Appellees Cross-Appellants
    No. 15-10932
    United States Court of Appeals, Fifth Circuit.
    Filed December 19, 2016

      Robert Lee Manteuffel, Jamie Harrison Zidell, Attorney, J.H. Zidell, P.C., Dallas, TX, for Plaintiffs-Appellants Cross-Appel-lees
    Nadine Rowena King-Mays, King-Mays Firm, Dallas, TX, Joseph C. Putnam, Jr., Irving, TX, for Defendants-Appellees Cross-Appellants.
    Before JONES, BARKSDALE, and COSTA, Circuit Judges.
   GREGG COSTA, Circuit Judge:

This appeal raises two questions about the retaliation provision of the Fair Labor Standards Act: Does the Act allow a retaliation victim to recover damages for emotional distress? Does the Act protect a nonemployee spouse from employer backlash? We conclude that the FLSA allows only employees to bring suit, but that an employee may recover for emotional injury resulting from retaliation.

I.

Santiago Pineda and Maria Pena, a married couple, lived in an apartment owned by JTCH Apartments, L.L.C. and leased to Pena. Pineda did maintenance work in and around the apartment complex. As part of Pineda’s compensation for this work, JTCH discounted Pena’s rent.

Pineda filed this lawsuit initially just seeking unpaid overtime under the FLSA. He sued JTCH and its owner and manager, Simona Vizireanu. Three days after Pineda served JTCH with the summons, he and his wife received a notice to vacate their apartment for nonpayment of rent. The amount JTCH demanded equaled the rent reductions Pena had received over the period of Pineda’s employment. In response to the notice, the couple left the apartment.

Pena then joined Pineda’s suit, and the amended complaint included retaliation claims based on the back rent demanded after the filing of the lawsuit. See 29 U.S.C. § 215(a)(3). During the jury trial that followed, Defendants moved successfully for judgment as a matter of law on Pena’s retaliation claim, arguing that a nonemployee like Pena is outside the protections of the FLSA. At the charge conference, Pineda unsuccessfully sought an instruction on emotional distress damages for his retaliation claim.

The jury found for Pineda on both his overtime wage claim and his retaliation claim. It awarded him $1,426.50 on the former and $3,775.50 on the latter. In post-trial rulings, the district court awarded Pena liquidated damages of $1,426.50 and awarded his counsel $76,732.88 in attorney’s fees, which was a 25% reduction from the amount requested. The court ordered the reduction primarily because the fee request was “grossly disproportionate to the modest recovery.”

Pineda and Pena appeal. Pineda argues that the court should have instructed the jury on- damages for emotional harm. Pena argues that she is within the zone of interests protected by the FLSA retaliation provision and thus should have also been able to seek such damages from the jury.

Defendants also appeal. Their brief seeks to undo the jury’s verdict on a number of grounds, among them that Pineda was an independent contractor and failed to prove that JTCH was an enterprise engaged in commerce. Their notice of appeal raising those issues was deemed untimely, however, by a motions panel of this court. The only issue they timely raised relates to the fee award.

II.

A

We begin by considering whether the district court should have asked the jury whether it believed Pineda had. proven damages for emotional distress. As the availability of such damages under the FLSA is a question of statutory interpretation, our review is de novo. GE Capital Commercial, Inc, v. Worthington Nat. Bank, 754 F.3d 297, 302 (5th Cir. 2014) (“[Wjhen ‘a jury instruction hinges on a question of statutory construction, this court’s review is de novo.’ ” (quoting United States v. Garcia-Gonzalez, 714 F.3d 306, 312 (5th Cir. 2013))).

The damages provision of the FLSA provides the following remedies for retaliation claims: “Any employer who violates the provisions of section 215(a)(3) of this title shall be liable for such legal or equitable relief as may be appropriate to effectuate the purposes of section 215(a)(3) of this title, including without limitation employment, reinstatement, promotion, and the payment of wages lost and an additional equal amount as liquidated damages.” 29 U.S.C. § 216(b). Although we have not decided whether this language allows a plaintiff to recover for emotional injuries, the two courts of appeals that have analyzed the question have. Moore v. Freeman, 355 F.3d 658, 563 (6th Cir. 2004); Travis v. Gary Cmty. Mental Health Ctr., 921 F.2d 108, 112 (7th Cir. 1990). And a number of other circuits have upheld jury awards for emotional damages in FLSA retaliation cases though the legal question was not challenged on appeal. Travers v. Flight Servs. & Sys., Inc., 808 F.3d 525, 530, 539-42 (1st Cir. 2015); Broadus v. O.K. Indus., Inc., 238 F.3d 990, 992 (8th Cir. 2001) (per curiam); Lambert v. Ackerley, 180 F.3d 997, 1011 (9th Cir. 1999).

The remedies provision for retaliation claims was added to the FLSA in 1977. Travis, 921 F.2d at 111. Prior to the 1977 amendments, plaintiffs only had a cause of action for minimum wage and overtime violations. For those claims, section 216(b) was limited, as it still is today, to awarding lost pay, liquidated damages, and attorneys’ fees. Id.; 29 U.S.C. § 216(b). The amendment, however, provided a private cause of action to enforce the FLSA’s an-tiretaliation provision (before 1977, the Secretary had to bring an enforcement action). Fair Labor Standards Amendments of 1977, Pub. L. No. 95-151, 91 Stat. 1252 (Nov. 1,1977). In granting employees the ability to enforce the antiretaliation provision on their own, Congress allowed them to recover not just wages and liquidated damages but also “such legal or equitable relief as may be appropriate.” 29 U.S.C. § 216(b). As the Seventh Circuit has recognized, this is expansive language that should be read to include the compensation for emotional distress that is typically available for intentional torts like retaliatory discharge. Travis, 921 F.2d at 112 (“Compensation for emotional distress, and punitive damages, are appropriate for intentional torts such as retaliatory discharge.”). This also explains the more limited damages available for failure to pay minimum wage or overtime pay because an employer can inadvertently pay less than the law requires, see 29 U.S.C. § 255(a) (recognizing that not all FLSA wage and overtime claims are willful); it cannot unintentionally retaliate against an employee who complains about it.

Despite the uniform view of our sister circuits that damages for emotional distress are available in FLSA retaliation suits, this district court was not the only one in our circuit to conclude otherwise. Compare Little v. Tech. Specialty Prods., LLC, 940 F.Supp.2d 460, 479 (E.D. Tex. 2013), and Saldana v. Zubha Foods, LLC, 2013 WL 3305542, at *6 (W.D. Tex., June 28, 2013) (holding that emotional distress damages are available under the FLSA), with Adams v. Cedar Hill Indep. Sch. Dist., 2014 WL 66488, at *6-7 (N.D. Tex., Jan. 8, 2014), and Douglas v. Mission Chevrolet, 757 F.Supp.2d 637, 639-40 (W.D., Tex. 2010). (holding, that emotional damages are not .available under the FLSA). The disagreement stems from our decisions stating that the remedies provision of the FLSA and the Age Discrimination in Employment Act should be interpreted consistently. See Lubke v. City of Arlington, 455 F.3d 489, 499 (5th Cir. 2006). That congruity is the result of the ADEA incorporating the FLSA’s remedy provision. See id.; 29 U.S.C. § 626(b) (providing that the “provisions of this chapter shall be enforced in accordance with the powers, remedies, and procedures provided in sections 211(b), 216 (except for subsection (a) thereof) and 217 of this title [all FLSA provisions] and subsection (c) of this section”). Applying this equivalence principle, some courts have concluded that our ruling in Dean v. American Security Insurance Co., 559 F.2d 1036 (5th Cir. 1977), that emotional distress damages were not available under the ADEA must mean they are also unavailable under the FLSA. See, e.g., Mission Chevrolet, 757 F.Supp.2d at 639.

The trouble with this line of reasoning is that when Dean considered whether the ADEA afforded a remedy for emotional harm by looking to the FLSA remedy provision via the cross reference, it was looking at the pre-1977 FLSA. As already discussed, that statute limited relief to economic damages and did not even allow private- retaliation suits. Dean thus observed that “[r]eading together the ADEA and the identified sections of the FLSA, an employer is subject to liability to the employee for ‘unpaid minimum wages or unpaid overtime compensation’ and that amount may be doubled to provide ‘liquidated damages,’ in cases of willful violations.” Dean, 559 F.2d at 1037.

In contrast to its ready rejection of the argument that the ADEA allowed recovery for emotional distress through its incorporation of the since amended FLSA damages provision, Dean spent more time considering whether a standalone provision of the ADEA provided such relief. After the ADEA incorporates the FLSA damages provision, it goes on to provide that: “In any action brought to enforce this chapter the court shall have jurisdiction to grant such legal'or equitable relief as may be appropriate to effectuate the purposes of this chapter — ”29 U.S.C. § 626(b). Analyzing this language, Dean concluded that awarding emotional damages' to ADEA plaintiffs would “frustrate, rather than [ ] ‘effectuate the purposes’” of the statute because allowing emotional damages would “introduce! ] a volatile ingredient into the tripartite negotiations involving Secretary, employee and employer” that is the dispute resolution procedure the ADEA prefers. 559 F.2d at 1038-39 (citing Rogers v. Exxon Research & Eng’g Co., 550 F.2d 834 (3d Cir. 1977)).

We have never said that this freestanding language in the ADEA automatically applies to the FLSA, and that would make little sense. Although the ADEA incorporates portions of the FLSA, the FLSA does not incorporate the ADEA. Nonetheless, much of the language in that ADEA provision—“such legal or equitable relief as may be appropriate to effectuate the purposes of this chapter”—is similar to the language Congress added to the FLSA in 1977. But the final “as may be appropriate to effectuate the purposes” phrase on which Dean focuses warrant a different result when it comes to the FLSA retaliation provision. The FLSA has no comparable legislative preference for the ADEA’s administrative conciliation and mediation scheme that motivated the ruling in Dean. 559 F.2d at 1038; see also Bogacki v. Buccaneers Ltd. P’ship, 370 F.Supp.2d 1201, 1205 (M.D. Fla. 2005) (refusing to apply Dean to an FLSA claim because “the core of its decision was the notion that the allowance of damages for emotional distress under the ADEA would thwart the goal of speedy, uncomplicated administrative resolution of ADEA disputes”). Instead of requiring exhaustion of remedies before ,an agency like the EEOC, the FLSA follows the path of tort law, authorizing immediate suits by employees to provide compensation and deterrence. See Bogacki, 370 F.Supp.2d at 1204-05; 29 U.S.C. § 216(b).

We thus conclude that our case law interpreting the ADEA is no obstacle to joining other circuits in deciding that the FLSA’s broad authorization of “legal and equitable relief’ encompasses compensation for emotional injuries suffered by an employee on account of employer retaliation.

The question remains whether there was a factual basis for instructing the jury on that type of damages in Pine-da’s case. Indeed, this question, rather than the legal question about whether the FLSA generally allows damages- for emotional distress, is the one Defendants raise in defending the trial court’s ruling. We find, however, that the evidence is sufficient to have the jury decide the question. During trial, Pineda testified to experiencing marital discord, sleepless nights,'and anxiety about where his family would live after JTCH made what the jury found to be a retaliatory demand for back rent. Such testimony is sufficient to enable a jury to find that the plaintiff experienced compensable emotional distress. See Salinas v. O’Neill, 286 F.3d 827, 832 (5th Cir. 2002) (“Damages for emotional distress may be appropriate, however, where the plaintiff suffers sleeplessness, anxiety, stress, marital problems, and humiliation.”). A question asking whether Pineda had proven any damages for emotional distress should have been submitted to the jury.

B

Pena also sought emotional damages. But even before ruling on the emotional damages question, the district court dismissed Pena’s retaliation claim in its entirety because she was not an employee of JTCH. She contends that she was nonetheless protected by the FLSA because as the spouse of an employee retaliated against for his complaints, she was within the zone of interests the statute protects. See Thompson v. N. Am. Stainless, LP, 562 U.S. 170, 178, 131 S.Ct. 863, 178 L.Ed.2d 694 (2011) (using the zone of interests test for determining who may bring an action alleging retaliation under Title VII).

Pena’s attempt to apply Thompson to her situation ignores a critical distinction between the text of Title VII it addressed and the FLSA’s retaliation provision, Under the FLSA, it is only unlawful “to discharge or ... discriminate against any employee because such employee has filed any complaint.” 29 U.S.C. § 215(a)(3) (emphasis supplied). In contrast, the remedies provisions of Title VII permit a “person claiming to be aggrieved” to file a civil suit. 42 U.S.C. § 2000e-5(f)(1). The Supreme Court read these words to authorize suits by a person, in that case the terminated fiancé of a coworker who filed a discrimination complaint, in the zone of interests sought to be protected by Title VII. Thompson, 562 U.S. at 178, 131 S.Ct. 863. In the FLSA, the obstacle to a suit by a nonemployee like Pena is found not in the remedies provision but in the substantive prohibition of retaliation. The wage and hour law only prohibits discharging or discriminating against an “employee.” 29 U.S.C. § 215(a)(3). In light of this language, it is not surprising Pena is unable to cite any case allowing a nonemployee to bring an FLSA retaliation claim. The district court correctly dismissed Pena’s retaliation claim.

III.

Defendants appeal the district court’s award of attorney’s fees to Pineda. They do not, however, contest the accuracy of the time entries or the reasonableness of that time in light of the factors listed in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974). Instead, they assert that the plaintiffs violated Federal Rule of Civil Procedure 11 by filing a complaint in bad faith. They also rely upon the doctrine of excessive demand, a creature of Texas law. Both of these arguments rest on allegations that plaintiffs’ counsel did not settle the case at an early state before significant fees accrued. The problem is that Defendants waived these arguments by not bringing them before the district court in a proper manner. With respect to Rule 11, Defendants never filed a separate motion for sanctions with the district court, instead only invoking the rule in their opposition to Pineda’s motion for attorneys’ fees. See Fed. R. Civ. P. 11(c)(2) (“A motion for sanctions must be made separately from any other motion. ...”). As a result,' there-are no district court findings on the fact-intensive allegations Defendants raise — and the counterallegations opposing counsel makes about the course of the litigation — for us to review or consider in assessing the fee award. As to the excessive demand argument, Defendants did not raise it in any manner in the district court. See Crawford Prof'l Drugs, Inc. v. CVS Caremark Corp., 748 F.3d 249, 267 (5th Cir. 2014) (stating general rule that arguments not raised before the district court are waived).

With no challenge to the fee award properly before us, we affirm the district court’s award. This case is not over, however. Because we hold that damages for emotional distress are available in an FLSA retaliation suit, and the district court’s ruling to the contrary was made prior to instructing the jury rather than after the verdict was rendered, the case must be remanded for a determination whether Pineda has proven any such harm. Given the significant discrepancy the district court has already noted between the fees expended and the amounts recovered, counsel are instructed to complete the final aspect of this case in an expeditious, cost-sensitive manner.

* * *

The judgment is AFFIRMED in part, REVERSED in part, and the case REMANDED for trial on Pineda’s entitlement to compensation for emotional distress.

JONES, Circuit Judge,

concurring:

I concur in this good opinion and write only to emphasize the panel’s admonition that this case ought to be terminated expeditiously and at minimum cost to the -defendants. Testimony in the record implies that Pineda may have filed this suit for a tiny sum partly to retaliate after the apartment manager reported his possible child abuse to law enforcement. The record also demonstrates unacceptable hardball tactics by. plaintiffs counsel, including the ex parte freezing of the defendant’s bank accounts. Even, worse, this and other tactics seem to reflect counsel’s standard operating procedure to maximize recovery for minimum FLSA violations. Federal courts must be vigilant to prevent procedural abuses.

      . The 1977 Amendments became effective on November 1 of that year, after Dean was decided 'by the court of appeals and more than a year after it was filed in the district court. See Dean, 559 F.2d at 1036; Dean v. Am. Sec. Ins. Co., 429 F.Supp. 3 (N.D. Ga. 1976).