author: COHEN, District Judge:

text:
    UNITED STATES of America, EX REL. Gerry PHALP and Matt Peoples, Plaintiffs-Appellants, v. LINCARE HOLDINGS, INC. and Lincare, Inc., d/b/a Diabetics Experts of America, Defendants-Appellees.
    No. 16-10532
    United States Court of Appeals, Eleventh Circuit.
    (May 26, 2017)

      Daniel W. Allen, Jose M. Bautista, Bau-tista & Allen, Kansas City, MO, Stephanie Anne Casey, Lindsey Lazopoulos Friedman, Curtis Bradley Miner, Colson Hicks Eidson, Coral Gables, FL, Daniel E. Gus-tafson, Gustafson Gluek, PLLC, Minneapolis, MN, Patrick Howard, Charles Joseph Kocher, Simon Bahne Paris, Saltz Mongeluzzi Barrett & Bendesky, PC, Phi-lidelphia, PA, for Plaintiffs-Appellants.
    A. Brian Albritton, Michael S. Hooker, Lawrence P. Ingram , Phelps Dunbar, LLP, Jessica Kirkwood Alley, Freeborn & Peters LLP, Steven L. Brannock, Bran-nock & Humphries, PA, Tampa, FL, for Defendants-Appellees.
    Weili Justin Shaw, U.S. Department of Justice, Civil Division, Appellate Staff, Washington, DC, for Amicus Curiae United States of America.
    Before MARCUS and BLACK, Circuit Judges, and COHEN, District Judge.

       Honorable Mark H. Cohen, United States District Judge for the Northern District of Georgia, sitting by designation.

   COHEN, District Judge:

Plaintiffs Gerry Phalp and Matt Peoples (collectively “Relators”) brought a qui tam action pursuant to the False Claims Act, 31 U.S.C. §§ 3729-3733 (“FCA”), alleging that Defendants submitted claims to Medicare without adequate authorization from the relevant Medicare beneficiaries and claims that were the product of unsolicited telemarketing calls to Medicare beneficiaries. Relators appeal summary judgments granted to Defendants with respect to each issue.

We affirm the district court with one modification. Although the district court applied an erroneous scienter standard, the evidence proffered by Relators as to Defendants’ state of mind with respect to the assignment of benefits forms was insufficient to survive summary judgment under the proper standard. The district court did not err in granting summary judgment on Relators’ claims that Defendants violated Medicare’s unsolicited telephone contact rules.

I. BACKGROUND

A. Facts

Relators are former salespersons for Lineare, Inc. (“Lineare”), which does business as Diabetic Experts of America (“Diabetic Experts”). Defendants are Relators’ former employer and related entities. Lin-eare supplies Medicare patients suffering from chronic obstructive pulmonary disease with oxygen, respiratory, and other therapy services. Diabetic Experts is a fictional name Lineare registered in 2004 to sell diabetic-testing supplies. Lineare Holdings, Inc. (“Holdings”) is a holding company for its wholly-owned subsidiary, Lineare, Inc., and other subsidiaries. Additionally, Holdings supports the information systems of Lineare and Diabetic Experts by providing, among other things, a database which contains the telephone numbers for Diabetic Experts’ customers.

During the relevant time period, Diabetic Experts was in the practice of supplying Medicare patients with diabetic-testing supplies. Specifically, Diabetic Experts would place calls to individuals to whom Lineare previously had provided Medicare-covered items related to chronic obstructive pulmonary disease. Diabetic Experts would offer these individuals a free diabetic-testing monitor and sell them diabetic-testing supplies, including blood-testing strips. After selling diabetic-testing strips to these individuals, Diabetic Experts would submit claims to Medicare using authorizations, or assignments of benefits (“AOBs”), previously provided by the Medicare beneficiaries to Lineare in connection with Lincare’s provision of items related to chronic obstructive pulmonary disease. Diabetic Experts did not obtain AOBs that were specifically related to diabetic testing supplies. Instead, Diabetic Experts submitted the AOBs given to Lin-eare that were generic in nature and provided that the Medicare beneficiaries agreed: (1) to rent or purchase “certain medical equipment, products, supplies, prescription drugs and/or associated services” from “Lineare and its affiliates;” (2) that Lineare would provide “HME [home medical equipment] and Supplies” or “DME [durable medical equipment];” and (3) to assign Medicare benefits to Lineare.

B. Procedural Background

Relators alleged in their Second Amended Complaint (“Complaint”) that Defendants violated the FCA by submitting reimbursement claims to Medicare that were non-compliant with Medicare regulations in two respects: (1) the reimbursement claims submitted by Defendants were based upon improper generic authorizations given to Lineare in connection with the provision of items related to chronic obstructive pulmonary disease and failed to include a new authorization when Defendants requested reimbursement for diabetic blood-testing strips; and (2) the claims submitted to Medicare arose out of telemarketing calls with beneficiaries that violated Medicare’s unsolicited telephone contact rules. The Complaint included six examples of claims submitted by Defendants to Medicare on behalf of six different Medicare beneficiaries which were alleged to be illustrative of Defendants’ unlawful conduct.

Defendants moved for summary judgment. They contended that the claims filed on behalf of these exemplars complied with the applicable Medicare regulations and could not form the basis of any FCA claim. The district court issued an order on July 13, 2015 (the “July Summary Judgment Order”), granting Defendants’ motion for summary judgment on the six exemplars, but recognized the possibility that its order may not be dispositive of the entire case. United States ex rel. Phalp v. Lincare Holdings, Inc., 116 F.Supp.3d 1326, 1361 (S.D. Fla. 2015). Subsequently, Rela-tors cited evidence of three additional exemplars which were alleged to be illustrative of Defendants’ practice of unlawfully telemarketing Medicare beneficiaries. The district court issued a second order on January 11, 2016 (the “January Summary Judgment Order”), granting Defendants’ motion for summary judgment on the three additional exemplars. United States ex rel. Phalp v. Linecare Holdings, Inc., No. 10-CV-21094, 2016 WL 3961840 (S.D. Fla. Jan. 11, 2016). Relators appeal portions of those two orders to this Court.

1. The July Summary Judgment Order

The district court held that the evidence was insufficient to create a genuine issue of material fact with regard to scienter— that is, whether the defendants “knew or should have known that its policies or practices violated the applicable statutes and implementing regulations.” The district court analyzed Relators’ “best evidence” of scienter, which consisted of two emails. One dealt with an entirely different compliance issue. In the second email, Lin-eare personnel wrote that “they ‘[m]ay need to reconsider [their] process for Patient Agreements,’ ” but the email postdated the relevant transactions by several months. The court concluded that these two emails did not “allow a reasonable jury to conclude that Diabetic Experts knowingly submitted false claims.”

Citing United States ex rel. Hixson v. Health Mgt. Sys., Inc., 613 F.3d 1186, 1191 (8th Cir. 2010), the district court stated that when a defendant claims that the governing law is ambiguous, “[t]o prevail under the False Claims Act, ‘relators must show that there is no reasonable interpretation of the law that would make the allegedly false statement true.’ ” The district court expanded on this line of reasoning, stating that “a defendant’s ‘reasonable interpretation of any ambiguity inherent in the regulations belies the scienter necessary to establish a claim of fraud under the FCA.’ ” Based on this reasoning, as “an alternative and independent ground” for granting summary judgment in favor of Defendants, the court concluded “as a matter of law that, with regard to the six exemplars, no reasonable jury could find for Relators on the questions of whether Defendants submitted false claims or made or used false records with the requisite scienter.”

2. The January Summary Judgment Order

At the conclusion of the July 13 Summary Judgment Order, the district court invited the parties to submit a status report indicating what, if any, claims remained in the case. Relators supplemented the record with evidence of three additional exemplars, who were previous clients of Lincare’s wholly owned subsidiaries, Med4Home and Reliant. Relators alleged that Diabetic Experts’ telemarketing of these beneficiaries was in violation of Medicare’s prescription against unsolicited telephone contact. See 42 U.S.C. § 1395m(a)(17)(A). Relators argued that, unlike Diabetic Experts’ relationship with Lineare, Med4Home and Reliant could not be considered the same supplier as Diabetic Experts for purposes of Medicare regulations.

On January 11, 2016, the district court entered its order granting summary judgment in favor of Defendants. The court found that the three additional exemplars presented by Relators fell within the exception to the anti-telemarketing prescription that applies where the beneficiary gives written permission to the Medicare supplier. See 42 C.F.R. § 424.57(c)(ll)(i) (“The supplier must ... agree not to contact a beneficiary by telephone when supplying a Medicare-covered item unless ... [t]he individual has given written permission to the supplier to contact them by telephone concerning the furnishing of a Medicare-covered item that is to be rented or purchased.”). The court subsequently granted summary judgment for Defendants on Relators’ remaining claims.

II. STANDARD OF REVIEW

“We review a district court’s grant of summary judgment de novo, viewing all of the facts in the record in the light most favorable to the non-movant.” Haynes v. McCalla Raymer, LLC, 793 F.3d 1246, 1249 (11th Cir. 2015) (quotation and citation omitted). Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact” such that “the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

“We review a district court’s decision to rule on a summary-judgment motion before all discovery disputes have been resolved for abuse of discretion.” Urquilla-Diaz v. Kaplan Univ., 780 F.3d 1039, 1050 (11th Cir. 2015) (citation omitted). In order to prevail on appeal, “a party must be able to show substantial harm to its case from the denial of its requests for additional discovery,” Leigh v. Warner Bros., Inc., 212 F.3d 1210, 1219 (11th Cir. 2000), and that the party timely informed the district court of the outstanding discovery, Cowan v. J.C. Penney Co., Inc., 790 F.2d 1529, 1532 (11th Cir. 1986). Moreover, the party “must specifically demonstrate how postponement of a ruling on the motion [for summary judgment would have] enable[d] him, by discovery or other means, to rebut the movant’s showing of the absence of a genuine issue of fact.” Reflectone, Inc. v. Farrand Optical Co., 862 F.2d 841, 843 (11th Cir. 1989) (quotation marks and citation omitted).

III. DISCUSSION

A. Relators Failed to Offer Evidence That Defendants Acted With the Requisite Scienter to Establish a Violation of the FCA.

The FCA imposes liability on any person who “knowingly presents, or causes to be presented, a false or fraudulent claim for payment or approval; [or] knowingly makes, uses, or causes to be made or used, a false record or statement material to a false or fraudulent claim.” 31 U.S.C. § 3729(a)(l)(A-B). The FCA authorizes private citizens to bring actions on behalf of the United States. Id. § 3730(b). Rela-tors in this case brought claims under two subsections of the FCA, § 3729(a)(1)(A) and (B). To establish a cause of action under § 3729(a)(1)(A), a relator must prove three elements: (1) a false or fraudulent claim, (2) which was presented, or caused to be presented, for payment or approval, (3) with the knowledge that the claim was false. 31 U.S.C. § 3729(a)(1)(A). To prove a claim under § 3729(a)(1)(B), a relator must show that: (1) the defendant made (or caused to be made) a false statement, (2) the defendant knew it to be false, and (3) the statement was material to a false claim. 31 U.S.C. § 3729(a)(1)(B).

In this case, Relators’ theory of FCA liability is a “false certification theory,” whereby Defendants are alleged to have falsely certified that they “complied with a [Medicare] statute or regulation the compliance with which is a condition for Government payment.” United States v. Amin Radiology, No. 5:10-CV-583-Oc-PRL, 2015 WL 403221, at *3 (M.D. Fla. Jan. 28, 2015) (quotation and citation omitted)), aff'd sub nom. U.S. ex rel. Florida v. Amin Radiology, 649 Fed.Appx. 725 (11th Cir. 2016). This case is not one in which the plaintiff seeks to enforce Medicare regulations, but is a lawsuit brought under and governed by the FCA. U.S. ex rel. Clausen, 290 F.3d at 1311 (“The False Claims Act does not create liability merely for a health care provider’s disregard of Government regulations or improper internal policies unless, as a result of such acts, the provider knowingly asks the Government to pay amounts it does not owe.”) (citation omitted). Accordingly, the “fact that there may have been a violation of the laws governing Medicare ... is not enough, standing alone, to sustain a cause of action under the False Claims Act.” Amin Radiology, 2015 WL 403221, at *3 n.3; see also Hopper v. Solvay Pharm., Inc., 588 F.3d 1318, 1328 (11th Cir. 2009) (concluding that “[i]mproper practices standing alone are insufficient to state a claim under either § 3729(a)(1) or (a)(2) absent allegations that a specific fraudulent claim was in fact submitted to the government.”).

The FCA imposes liability on any person who “knowingly presents, or causes to be presented, a false or fraudulent claim for payment or approval; [or] knowingly makes, uses, or causes to be made or used, a false record or statement material to a false or fraudulent claim.” 31 U.S.C. § 3729(a)(l)(A-B). With regard to scienter, a relator must show that the defendant acted “knowingly,” which the FCA defines as either “actual knowledge,” “deliberate ignorance,” or “reckless disregard.” 31 U.S.C. § 3729(b). “Congress added the ‘reckless disregard’ provision to the FCA in 1986” in order “to ensure that ‘knowingly’ captured the ‘ostrich’ type situation whether an individual has ‘buried his head in the sand’ and failed to make simple inquiries which would alert him that false claims are being submitted.” Urquilla-Diaz, 780 F.3d at 1058 (internal quotations partially omitted) (quoting S. REP. 99-345, at 21, reprinted in 1986 U.S.C.C.A.N. 5266, 5288)). “Although proof of a specific intent to defraud is not required, the statute’s language makes plain that liability does not attach to innocent mistakes or simple negligence.” Id. (citation and quotation omitted).

Liability attaches to only those who act in gross negligence—those who fail to make such inquiry as would be reasonable and prudent to conduct under the circumstances. In other words, Congress did not intend to turn the False Claims Act, a law designed to punish and deter fraud, into a vehicle either punishing honest mistakes or incorrect claims submitted through mere negligence or imposing a burdensome obligation on government contractors rather than a limited duty to inquire.

Id. (internal punctuation, quotation, and citations omitted).

In the July Summary Judgment Order with regard to the initial six exemplars, the district court concluded that Relators failed to produce sufficient evidence that Defendant submitted false claims with the requisite level of scienter because “a defendant’s reasonable interpretation of any ambiguity inherent in the regulations belies the scienter necessary to establish a claim of fraud under the FCA.” The district court’s conclusion that a finding of scienter can be precluded by a defendant’s identification of a reasonable interpretation of an ambiguous regulation that would have permitted its conduct is erroneous. Although ambiguity may be relevant to the scienter analysis, it does not foreclose a finding of scienter. Instead, a court must determine whether the defendant actually knew or should have known that its conduct violated a regulation in light of any ambiguity at the time of the alleged violation. See United States v. R&F Props. of Lake Cty., Inc., 433 F.3d 1349, 1358 (11th Cir. 2005) (finding a question of fact as to the defendants’ understanding of a regulation precluded summary judgment despite ambiguity in the regulation).

Furthermore, under the district court’s legal interpretation, a defendant could avoid liability by relying on a “reasonable” interpretation of an ambiguous regulation manufactured post hoc, despite having actual knowledge of a different authoritative interpretation. However, scien-ter is not determined by the ambiguity of a regulation, and can exist even if a defendant’s interpretation is reasonable. See United States ex rel. Minn. Ass’n of Nurse Anesthetists v. Allina Health Sys. Corp., 276 F.3d 1032, 1053-54 (8th Cir. 2002) (holding that scienter is established if a defendant knowingly disregards the proper interpretation of an ambiguous regulation); see also S. Rep. 99-345, at 6-7 (1986), reprinted in 1986 U.S.C.C.A.N. 5266, 5271-72 (clarifying that instead of an actual knowledge standard,- the Senate Judiciary Committee intended to adopt a standard which recognizes “that those doing business with the Government have an obligation to make a limited inquiry to ensure the claims they submit are accurate.”).

Applying the correct standard, this Court finds that Relators failed to present sufficient evidence of scienter to defeat Defendants’ motion for summary judgment. As explained above, Relators’ “best evidence” of scienter consisted of two emails: one dealt with an entirely different compliance issue and the other postdated the relevant transactions by several months. The district court correctly concluded that neither email would permit “a reasonable jury to conclude that Diabetic Experts knowingly submitted false claims.”

Relators have not identified any error in this analysis and instead have emphasized evidence of an email exchange from November 2008 between Lineare employees inquiring whether Lineare could share AOBs with Diabetic Experts. There is nothing about this exchange, which merely discussed Defendants’ then-existing policy, to suggest that any of Defendants’ employees believed or had reason to believe they were violating Medicare regulations.

Relators also argue that the plain language of 42 C.F.R. § 424.36(a) and the 2008 amendments thereto constituted notice to Defendants that any authorization should have included the specific service being provided and, as such, establish the requisite scienter in this case. There is nothing in the plain language of 42 C.F.R. § 424.36(a) that would put Defendants on notice that Diabetic Experts’ use of AOBs given to Lineare were not compliant with Medicare regulations.

Accordingly, the district court did not err in concluding that summary judgment to Defendants was appropriate because Relators did not provide sufficient evidence of scienter.

B. The District Court Did Not Err in Concluding That Defendants’ Telemarketing Practice Did Not Violate Medicare’s Prohibition on Unsolicited Telephone Contacts.

Medicare regulations prohibit a supplier from contacting a Medicare beneficiary by phone unless one of the following three exceptions applies:

(i) The individual has given written permission to the supplier to contact them by telephone concerning the furnishing of a Medicare-covered item that is to be rented or purchased.
(ii) The supplier has furnished a Medicare-covered item to the individual and the supplier is contacting the individual to coordinate the delivery of the item.
(iii) If the contact concerns the furnishing of a Medicare-covered item other than a covered item already furnished to the individual, the supplier has furnished at least one covered item to the individual during the 15-month period preceding the date on which the supplier makes such contact.

42 C.F.R. § 424.57(c)(ll).

In its July Summary Judgment Order, the district court found that Lin-eare sold durable medical equipment covered by the Medicare regulations to the six exemplar beneficiaries within the fifteen months leading up the calls in question made by Diabetic Experts. Based on this fact, the district court correctly found that the calls made by Diabetic Experts fell squarely within the third exception to Medicare’s prescription against making unsolicited telephone contact, which permits calls to beneficiaries “[i]f the contact concerns the furnishing of a Medicare-covered item other than a covered item already furnished to the individual, [and] the supplier has furnished at least one covered item to the individual during the 15-month period preceding the date on which the supplier makes such contact.” 42 C.F.R. § 424.57(c)(ll)(iii).

With regard to the three additional exemplars at issue in the January Summary Judgment Order, the district court found that “each of the New Exemplars contains consent to contact by ‘supplier and its affiliates.’ ” The district court correctly concluded that these consents meant that the calls placed by Defendants fell within the first exception to the proscription on telemarketing beneficiaries where the beneficiary gives written permission to the Medicare supplier. 42 C.F.R. § 424.57(c)(ll)(i).

Relators have not presented any argument that requires this Court to disturb the lower court’s ruling. Relators’ contention that there was evidence that the first six exemplars did not consent to being contacted misses the import of the district court’s July Summary Judgment Order, which relied upon the third, instead of the first, exception to § 424.57(c)(ll).

Additionally, the Court finds without merit Relators’ assertion that the district court abused its discretion in denying discovery on the “no consent” AOBs and by ruling on Defendants’ summary judgment motion while Relators had a pending motion related to the discovery. The record reveals that any pending discovery requests related to damages and there is no indication that the information sought would have had any bearing on the outcome of the district court’s ruling. See Relators’ Mot. for Leave to File Suppl. to Mot. for Partial Summ. J. (indicating that pending discovery motion was limited to damages discovery).

IV. CONCLUSION

We affirm the district court’s orders granting summary judgment to Defendants. Although the district court incorrectly stated that a defendant can preclude a finding of scienter by identifying a reasonable interpretation of an ambiguous regulation that would have permitted its conduct, Relators nevertheless failed to present sufficient evidence of scienter to survive summary judgment under the correct standard. The district court also did not err in granting summary judgment on Relators’ claim that Defendants violated Medicare’s proscription against unsolicited telemarketing calls.

AFFIRMED AS MODIFIED.

      . The district court concluded that Lineare and Diabetic Experts are a single supplier for the purposes of the Medicare statutes, regulations, and supplier standards at issue. This ruling is not contested on appeal.

      . The district court’s finding that a Medicare beneficiary is unable to reuse the blood-testing strips is not contested on appeal.

      . The district court also made various findings concerning whether a new AOB was required to submit claims for diabetic testing strips and whether such strips should be clas-sifted as "supplies” or "equipment” under Medicare regulations. It is unnecessary for this Court to determine whether the district court’s or Relators’ interpretation of multiple provisions of the Medicare regulatory scheme is the correct one, given this Court’s conclusion that Relators’ evidence was insufficient to establish scienter under the FCA.

      . The court also rejected Relators’ argument that even if their exemplars did not demonstrate FCA violations, Relators could survive summary judgment based on facts known to them personally from their time as employees of Lineare affiliates. We agree with the district court that Relators’ evidence failed to create a genuine dispute of material fact, and confine our discussion to Relators’ exemplars.

      . On May 20, 2009, Congress enacted the Fraud Enforcement and Recovery Act of 2009 ("FERA”), Pub. L. No. 111-21, 123 Stat. 1617 (2009), which amended the FCA and re-designated 31 U.S.C. § 3729(a)(1) as 31 U.S.C. § 3729(a)(1)(A) and 31 U.S.C. § 3729(a)(2) as 31 U.S.C. § 3729(a)(1)(B). We need not decide whether the earlier or amended version of the FCA is applicable because we conclude that the district court properly granted summary judgment to Defendants on Relators’ claims based on the alleged violation of the Medicare regulations under either version of the statute. Moreover, the 2009 amendment does not materially affect the issues on appeal.

      . Specifically, the district court correctly found “that Diabetic Experts' practice of calling customers of its affiliate who had consented to contact by affiliates as represented by the New Exemplars are not violations of the statute that could create an objectively false claim when presented to the government.”


source: Caselaw Access Project

author: BY THE COURT: HULL, Circuit Judge, MARTIN, Circuit Judge,

license: Public Domain

text:
    Thomas D. ARTHUR, Plaintiff-Appellant, v. COMMISSIONER, ALABAMA DEPARTMENT OF CORRECTIONS, Anne Adams Hill, General Counsel, Alabama Department of Corrections, in her official capacity, Holman CF Warden, Defendants-Appellees.
    No. 17-11879-P
    United States Court of Appeals, Eleventh Circuit.
    Date Filed: 05/25/2017

      Suhana Han, Adam Brebner, Akash M. Toprani, Sullivan & Cromwell, LLP, NEW YORK, NY, Christine A. Freeman, John Anthony Palombi, Federal Defender Program, Inc., MONTGOMERY, AL, for Plaintiff-Appellant.
    Thomas R. Govan, Jr., James Clayton Crenshaw, James Roy Houts, Steven Marshall, Lauren Ashley Simpson, Alabama Attorney General’s Office, MONTGOMERY, AL, for Defendants-Appellees.
    Before GERALD BARD TJOFLAT, Acting Chief Judge, HULL, MARCUS, WILSON, MARTIN, JORDAN, ROSENBAUM, JULIE CARNES and JILL PRYOR, Circuit Judges.

       Chief Judge Ed Carnes and Judge William H. Pryor Jr., having recused themselves, did not participate.

   BY THE COURT:

A member of this Court in active service having requested a poll on whether this case should be reheard by the Court sitting en banc, and a majority of the judges in active service on this Court having voted against granting a rehearing en banc, it is ORDERED that this case will not be reheard en banc. The motion for a stay of execution is DENIED.

HULL, Circuit Judge,

concurring in denial of rehearing en banc:

Only because a dissent has been filed, I write briefly to put this case in the proper context and to set forth why I concur in the denial of rehearing en banc.

Under sentence of death, Thomas Arthur’s execution is currently scheduled for May 25, 2017 at 6:00 p.m. CST. This is Mr. Arthur’s eighth scheduled execution and seventh 42 U.S.C. § 1983 case. Arthur v. Comm’r, Ala. Dep’t of Corr., CM/ECF for the Eleventh Cir. Ct. App. no. 17-11879, at 2, 2017 WL 2292095, at *1, 680 Fed.Appx. 894, 896 (11th Cir. 2017) (the “Panel Opinion”).

This appeal arises in Mr. Arthur’s sixth § 1983 case. Panel Opinion at 2, 2017 WL 2292095, at *1, 680 FedAppx. at 896. As outlined in great detail in this Court’s 58-page panel opinion, Mr. Arthur, from 2007-2017, in multiple § 1983 cases, has challenged Alabama’s lethal-injection execution protocol, including the three drugs to be administered in the execution, its substitution of midazolam as the first drug, its consciousness checks, and virtually every feature of Alabama’s execution procedures. Panel Opinion at 8-12, 2017 WL 2292095, at *4-5, 680 FedAppx. at 899-902.

Mr. Arthur’s Previous § 1983 Cases

Notably, Mr. Arthur’s third § 1983 method-of-execution litigation lasted for over five years. Panel Opinion at 9, 2017 WL 2292095, at *4, 680 FedAppx. at 899. In April 2011, Alabama switched the first drug in its lethal-injection protocol from sodium thiopental to pentobarbital. See Arthur v. Comm’r, Ala. Dep’t of Corr., 840 F.3d 1268, 1275 (11th Cir. 2016) (“Arthur”). Two months later, Mr. Arthur filed a new § 1983 complaint challenging this pentobarbital-based protocol. Id

In September 2014, Alabama switched to midazolam. Id. at 1276. Mr. Arthur twice amended his complaint in his third § 1983 case to challenge midazolam and Alabama’s execution protocol involving mi-dazolam. Id. at 1275-78.

In the instant appeal in this sixth § 1983 case, this Court’s panel opinion recounts the variety of just some of Mr. Arthur’s claims in that third § 1983 litigation because Mr. Arthur did not raise his current “telephone-in-the-viewing-room claim” during that five-year challenge to Alabama’s execution protocol in that third § 1983 lawsuit. Panel Opinion at 9-10, 2017 WL 2292095, at *4-5, 680 Fed.Appx. at 899-902. Instead, Mr. Arthur raised this telephone claim only in this current sixth § 1983 case (which, as explained below, is now time-barred). See Panel Opinion at 15-16, 2017 WL 2292095, at *6-7, 680 Fed. Appx. at 901-04.

But back to Mr. Arthur’s third § 1983 case. After holding a two-day bench trial in January 2016 regarding midazolam, the “pinch test,” medical monitoring, and many other § 1983 claims about Alabama’s execution procedures, the district court issued two dispositive orders in Mr. Arthur’s third § 1983 case. Arthur, at 1278, 1283, 1296. In its first order, the district court determined that the Alabama Department of Corrections (“ADOC”) was entitled to judgment on Mr. Arthur’s facial method-of-execution and Equal Protection challenges. Id. at 1283-86. In its second order, the district court denied relief on Mr. Arthur’s many as-applied challenges to ADOC’s method of execution as applied to Mr. Arthur personally. Id. at 1296-98. As a result, in July 2016, the district court entered final judgment on Mr. Arthur’s third § 1983 case raising multiple challenges under the Eighth Amendment, and Mr. Arthur timely appealed to our Court. Id. at 1298.

On November 2, 2016, this Court affirmed the district court’s final judgment in Mr. Arthur’s third § 1983 case, rejecting his various challenges to Alabama’s execution protocol, including, but not limited to, Alabama’s use of midazolam as the first drug in the three-drug lethal injection series and his request for a firing squad to execute him. Id. at 1303-04, 1315-17. After exhaustively reviewing the evidence submitted by both Mr. Arthur and ADOC in that third § 1983 case, this Court’s 140-page opinion determined, among other things, that Mr. Arthur had not met his burden of demonstrating that, as applied to him, Alabama’s lethal injection protocol was “sure or very likely to cause serious illness and needless suffering, and give rise to sufficiently imminent dangers,” the showing demanded by the Supreme Court. Id. at 1312 (quoting Glossip v. Gross, 576 U.S.-,-, 135 S.Ct. 2726, 2737, 192 L.Ed.2d 761 (2015)).

On February 21, 2017, the United States Supreme Court denied Mr. Arthur’s petition for a writ of certiorari in that five-year § 1983 litigation. Arthur v. Dunn, — U.S.-, 137 S.Ct. 725, 197 L.Ed.2d 225 (2017). On April 24, 2017, the United States Supreme Court denied Mr. Arthur’s petition for rehearing. Mr. Arthur has exhaustively litigated his § 1983 Eighth Amendment claim and many other claims for 25 years in state and federal courts. Arthur, at 1274-78 (recounting litigation history).

Statute of Limitations in Sixth § 1983 Case

This brings us to the background of ADOC’s telephone prohibition, which is the subject of this appeal in Mr. Arthur’s sixth § 1983 case. As also outlined in great deal in this Court’s panel opinion, Mr. Arthur’s telephone-in-the-viewing-room claim, brought only in his sixth § 1983 case, is barred by the statute of limitations. Panel Opinion at 20-25, 2017 WL 2292095, at *8-11, 680 Fed.Appx. at 904-08.

The parties agree that Mr. Arthur’s § 1983 telephone-in-the-viewing-room claim is subject to a two-year statute of limitations. Powell v, Thomas, 643 F.3d 1300, 1303 (11th Cir. 2011) (per curiam); Ala. Code § 6-2-38. To be clear, Mr. Arthur has not requested that his designated execution witness have access to a telephone somewhere else in the prison or even adjacent to the execution viewing room. See Panel Opinion at 3, 2017 WL 2292095, at *1-2, 680 Fed.Appx. at 896-98. The § 1983 complaint and briefs explicitly request a telephone inside the viewing room. Panel Opinion at 3, 2017 WL 2292095, at *1-2, 680 Fed.Appx. at 896-98. The problem in this appeal for Mr. Arthur is the statute of limitations that applies to the claim in his sixth § 1983 case. Specifically at issue is when the statute of limitations period began to run on Mr. Arthur’s claim that Alabama’s telephone prohibition for his friend-witness in the viewing room violates the First Amendment right of access to the courts to bring a potential underlying Eighth Amendment claim during his execution. While federal courts borrow the statute of limitations period from state law, “the accrual date of a § 1983 cause of action is a question of federal law.” Wallace v. Kato, 549 U.S. 384, 388, 127 S.Ct. 1091, 1095, 166 L.Ed.2d 973 (2007).

Regardless of whether Mr. Arthur’s claim is best analyzed under the method-of-execution or the access-to-courts framework, this Court’s panel opinion concluded that the statute of limitations began to run when the AJDOC telephone prohibition at issue was enacted on August 1, 2012, because at that point Mr. Arthur knew or should have known of the injury for which he seeks relief. Panel Opinion at 22, 2017 WL 2292095, at *9-10, 680 Fed.Appx. at 905-07; see Chappell v. Rich, 340 F.3d 1279, 1283 (11th Cir. 2003) (per curiam) (concluding that the statute of limitations for an access-to-courts claim begins to run “only when the plaintiffs knew or should have known that they have suffered injury to their right of access and who caused it”); McNair v. Allen, 515 F.3d 1168, 1174 (11th Cir. 2008). Given Mr. Arthur’s extensive challenges to so many aspects of ADOC’s rules and protocols, our Court’s panel opinion agreed with the district court’s ruling that August 1, 2012 was the point at which Mr. Arthur knew or should have known of the putative injury to his right of access. Panel Opinion at 22, 2017 WL 2292095, at *9-10, 680 Fed.Appx. at 905-07; see Chappell, 340 F.3d at 1283. And in its careful review, this Court’s panel opinion reasoned that, even assuming arguendo that the two-year statute of limitations did not begin to run until ADOC switched to midazolam as the first drug in September 2014, it still expired by September 2016, and Mr. Arthur’s sixth § 1983 lawsuit was filed too late. Panel Opinion at 22, 2017 WL 2292095, at *9-10, 680 Fed.Appx. at 905-07.

Narrow Scope of This Appeal

The narrow scope of this appeal is also important to context. As discussed in this Court’s panel opinion, Alabama Code § 15-18-83 restricts execution witnesses to relatives or friends of Mr. Arthur. In this appeal, Mr. Arthur has not made a claim that § 15-18-83 is unconstitutional. Panel Opinion at 4-5, 2017 WL 2292095, at *2-3, 680 FedAppx. at 897-99. In this appeal, Mr. Arthur has not made a claim that he has a constitutional right under the Sixth Amendment or Fourteenth Amendment to have his counsel present as a witness in the execution viewing room. Panel Opinion at 4 & n.4, 5, 19, 38, 2017 WL 2292095, at *2 & n. 4, *2-3, *8, *11, 680 Fed.Appx. at 897 & n. 4, 897-99, 904, 907. Accordingly, this Court’s panel opinion did not address such claims, nor did the panel opinion address the more general question of whether Mr. Arthur retains a right of access to the courts during his execution. Panel Opinion at 4 & n.4, 19, 2017 WL 2292095, at *2 & n. 4, *8, 680 FedAppx. at 897 & n. 4, 904. Indeed, the panel opinion proceeded under the assumption that Mr. Arthur does have a right of access during his execution. Panel Opinion at 20-25, 2017 WL 2292095, at *8-11, 680 FedAppx. at 904-08. But there were insurmountable statute of limitations problems for Mr. Arthur as discussed in more detail in the Court’s panel opinion. Panel Opinion at 21-25, 2017 WL 2292095, at *9-11, 680 Fed. Appx. at 905-08.

Furthermore, this Court’s panel opinion emphasized that Mr. Arthur failed to cite any authority standing for the proposition that visitors in an Alabama correctional facility (which is what Mr. Arthur’s designated witness, an attorney, will be under Alabama law when witnessing his execution) have any independent constitutional right to telephone access inside the execution viewing room. Panel Opinion at 33, 2017 WL 2292095, at *14-15, 680 Fed. Appx. at 911-13. And again, Mr. Arthur never challenged the constitutionality of the relevant Alabama law. Panel Opinion at 4-5, 2017 WL 2292095, at *2-3, 680 FedAppx. at 897-99.

For these and the other reasons outlined in this Court’s panel opinion, I concur in the denial of rehearing en banc in Mr. Arthur’s sixth § 1983 case as to his eighth scheduled execution.

MARTIN, Circuit Judge,

dissenting to the denial of rehearing en banc:

A judge of this court asked for en banc consideration of Thomas Arthur’s access to the court claim. A majority of judges has now voted against en banc review. I would have preferred for the whole court to consider Mr. Arthur’s claim, so I respectfully dissent.

The State of Alabama plans to execute Mr. Arthur tonight. Mr. Arthur has made the quite modest request of Alabama that his attorney, who will be with him when the State takes his life, be allowed to have a telephone with her at the time of Mr. Arthur’s execution. This is so the lawyer would have a way to contact the courts if something goes wrong. There are reports from recent executions about problems resulting from the administration of lethal injection drugs. Still, Alabama has denied Mr. Arthur’s request. I don’t know whether Alabama’s refusal to allow possession of a telephone rises to the level of a violation of Mr. Arthur’s “constitutional right of access to the courts.” Bounds v. Smith, 430 U.S. 817, 828, 97 S.Ct. 1491, 1498, 52 L.Ed.2d 72 (1977). Nevertheless, I vote with my colleagues who want to consider this issue en banc, so we can give it proper consideration.

Judges on the United States District Court and this Court have spent countless hours considering and debating Mr. Arthur’s simple request. See Arthur v. Comm’r, Ala. Dep’t of Corr., 680 Fed.Appx. 894, 2017 WL 2292095 (11th Cir. 2017) (unpublished); Grayson v. Warden, 672 Fed.Appx. 956 (11th Cir. 2016) (per curiam) (unpublished); Arthur v. Dunn, No. 2:16-cv-00866-WKW, 2017 WL 1362861 (M.D. Ala. Apr. 12, 2017); Grayson v. Dunn, No. 2:12-cv-00316-WKW, 221 F.Supp.3d 1329, 2016 WL 6832630 (M.D. Ala. Nov. 18, 2016). Other states allow attorney witnesses to use a phone during their client’s execution, and I can’t think of any good reason for Alabama’s policy prohibiting telephone access. Neither, to my mind, has Alabama given any explanation for why its policy is necessary. Having gotten no discernable explanation from Alabama about why it needs to deny a lawyer a phone as she witnesses her client’s death, I am hard pressed not to see the refusal as unreasonable and an unbecoming use of the State’s power. Of course we don’t know what will happen during Mr. Arthur’s execution tonight. Yet we do know with full certainty that Alabama’s telephone policy will completely foreclose Mr. Arthur’s access to the courts if the worst should happen. It may be that Alabama can, consistent with the Constitution, block Mr. Arthur’s ability to seek judicial relief from a botched execution by cutting off all lines of communication. But even if the Constitution allows Mr. Arthur’s counsel to be held incommunicado, is it wise?

I also voted to hear this case en banc, because I am troubled by an idea floating through the filings of the State of Alabama, as well as this court’s Majority opinion denying Mr. Arthur’s claim. That idea is, if we allow counsel for an inmate to have a telephone, the courts may receive “contradictory claims” from the prison while the execution is going on. Maj. Op., at 32 n.13, 2017 WL 2292095, at *14 n.13, 680 Fed.Appx. at 910 n.13; see Appellee Br. 26-28; Arthur, No. 2:16-cv-00866-WKW, D.E. 18 at 13-14 (M.D. Ala. Nov. 23, 20 16). But the very reason courts exist as one of the three branches of our government is to hear “contradictory claims” and decide the merits of those claims. I suppose it could make things easier for judges to say that hearing “contradictory claims” makes things too complicated, so we will simply make it impossible to receive the account from one party or the other. I reject this view, which elevates the impact on judges above whatever rights Mr. Arthur is accorded in the process of the State taking his life. It is safe to presume that the State of Alabama will have access to the phones in the prison where it will put Mr. Arthur to death tonight. Mr. Arthur only seeks the same. If there is a dispute about whether something untoward or maybe even unconstitutional is going on during his execution, it is the job of the courts to resolve that dispute.

For these reasons, I respectfully dissent from deciding the issues Mr. Arthur raises here in an unpublished opinion issued by a divided panel of this Court. I would hear this case en banc.

      . Alabama previously scheduled Mr. Arthur’s execution for: (1) April 27, 2001; (2) September 27, 2007; (3) December 6, 2007; (4) July 31, 2008; (5) March 29, 2012; (6) February 19, 2015; and (7) November 3, 2016. See Arthur v. Comm’r, Ala, Dep’t of Corr., 840 F.3d 1268, 1274, 1275 n.2 (11th Cir. 2016).

      . See Ariz. Dep’t of Corr., Department Order Manual, Order 710.13 (1.5.1.3) (Oct. 23, 2015) (allowing attorney execution witness to access a mobile phone "in exigent circumstances”); Ohio Dep't of Rehab. & Corr., No. Ol-COM-11, § VI.G.2 (Oct. 7, 2016) (allowing attorney execution witness "free access” to a phone). Arizona and Ohio allow telephones by regulation. There has been no time to investigate since the panel issued its opinion last night, but I assume that other states allow telephones as a matter of routine, even where no regulation expressly permits it.

      . In Alabama's District Court filings in Mr. Arthur’s case, the State simply offers the conclusion that the regulation prohibiting telephones is "reasonably related to legitimate penological interests.” In the State's pleadings in this Court, it implies that counsel with a telephone could result in courts interfering with the execution. I do not read either of these references to explain the necessity for separating counsel from a phone during an execution.


author: BY THE PANEL: MARTIN, Circuit Judge,

text:
    IN RE: Orestes HERNANDEZ, Petitioner.
    No. 17-11989-E
    United States Court of Appeals, Eleventh Circuit.
    Date Filed: 05/31/2017

      Orestes Hernandez, Pro Se.
    Emily M. Smachetti, U.S. Attorney Service-Southern District of Florida, U.S. Attorney’s Office, Miami, FL, for Successive Habeas Respondent.
    Before MARCUS, MARTIN, and JILL PRYOR, Circuit Judges.
   BY THE PANEL:

Pursuant to 28 U.S.C. §§ 2255(h) and 2244(b)(3)(A), Orestes Hernandez has filed an application seeking an order authorizing the district court to consider a second or successive motion to vacate, set aside, or correct his federal sentence, 28 U.S.C. § 2255. Such authorization may be granted only if this Court certifies that the second or successive motion contains a claim involving:

(1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or
(2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.

28 U.S.C. § 2255(h). “The court of appeals may authorize the filing of a second or successive application only if it determines that the application makes a prima facie showing that the application satisfies the requirements of this subsection.” Id. § 2244(b)(3)(C); see also Jordan v. Sec’y, Dep't of Corrs., 485 F.3d 1351, 1357-58 (11th Cir. 2007) (explaining that this Court’s determination that an applicant has made a prima facie showing that the statutory criteria have been met is simply a threshold determination).

In his application, Hernandez seeks to raise one claim in a second or successive § 2255 motion. Hernandez asserts that his claim relies on a new rule of constitutional law, citing Johnson v. United States, — U.S.-, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), in which the Supreme Court held that the residual clause of the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), is unconstitutionally vague. He also asserts that his claim relies on Mathis v. United States, — U.S.-, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016). Hernandez contends that the Supreme Court’s holding in Johnson implicates the mandatory terms of imprisonment he received under 18 U.S.C. § 924(c) for using a firearm during a crime of violence. He argues that his convictions for Hobbs Act robbery and extortion, 18 U.S.C. § 1951, and carjacking, 18 U.S.C. § 2119, no longer qualify as crimes of violence under § 924(c), after the Supreme Court’s holding in Johnson and Mathis.

Under 28 U.S.C. § 2244(b)(1), a claim presented in a second or successive habeas corpus application under § 2254 that was presented in a prior application must be dismissed, 28 U.S.C. § 2244(b)(1). This Court has held that § 2244(b)(l)’s mandate applies to applications for leave to file a second or successive § 2255 motion. In re Baptiste, 828 F.3d 1337, 1339-40 (11th Cir. 2016). Hernandez has previously filed an application for leave to file a second or successive § 2255 motion based on Johnson. In that application, Hernandez contended that his § 924(c) convictions were no longer valid. We denied his application, reasoning that Hernandez’s Hobbs Act convictions qualified as crimes of violence under § 924(c)(3)(A)’s use-of-force clause. In re: Orestes Hernandez, No. 16-11862, manuscript op. at 2-3 (11th. Cir. May 17, 2016). We noted that Hernandez’s indictment confirmed that he was convicted under the part of § 1951 that contained a use of force. Id. at 3. Accordingly, we denied his application, reasoning that Hernandez’s sentence was valid even if Johnson invalidated § 924(c)’s residual clause. Id. Because Hernandez raises the same argument in this application that we previously denied on the merits, under binding precedent his application must be denied. Baptiste, 828 F.3d at 1339.

Moreover, Mathis does not provide an independent basis for his application, as the Supreme Court’s holding in Mathis did not announce a “new rule of constitutional law.” See 28 U.S.C. § 2255(h). Rather, the Supreme Court in Mathis provided guidance to courts in interpreting an existing criminal statute. See Mathis, 136 S.Ct. at 2248-57.

Accordingly, because Hernandez has failed to make a prima facie showing of the existence of either of the grounds set forth in 28 U.S.C. § 2255, his application for leave to file a second or successive motion is hereby DENIED.

MARTIN, Circuit Judge,

concurring in result, joined by JILL PRYOR, Circuit Judge:

Orestes Hernandez was sentenced to 775-months imprisonment. 300 months of his sentence—25 years in prison'—came from three mandatory-minimum sentencing enhancements he got for using a gun in the commission of his crimes under 18 U.S.C. § 924(c). Mr. Hernandez asks us to make sure the crimes he was charged with qualify as crimes of violence so as to justify the 25 extra years he received under § 924(c). However, we are barred from reviewing his application by In re Baptiste, 828 F.3d 1337 (11th Cir. 2016), which held that “the federal habeas statute requires us to dismiss a claim that has been presented in a prior application” to file a § 2255 motion. Id. at 1339. I have stated my view that this bar created by our Court in Baptiste has no basis in the text of the habeas statute:

Baptiste was construing ... 28 U.S.C. § 2244(b)(1), which says any “claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed.” Of course, [ ] § 2255 motions ... are filed by federal prisoners [and] § 2255 motions are certainly not brought “under section 2254,” which governs petitions filed by state prisoners. But the Baptiste panel ruled that even though § 2244(b)(1) does not mention § 2255 motions, it applies to them anyway, since “it would be odd [] if Congress had intended to allow federal prisoners” to do something state prisoners can’t do.

In re Clayton, 829 F.3d 1254, 1266 (11th Cir. 2016) (Martin, J., concurring). And

Baptiste is inconsistent with the statute in a second way. The text of the habeas statute shows that it requires courts to dismiss only claims that were already presented in an actual § 2255 motion, as opposed to a mere request for certification of a successive § 2255 motion. Both § 2244 and § 2254 distinguish between “applications” (which are the § 2254 petitions and § 2255 motions filed in district courts) and “motions” (which are the earlier request for certification filed in a court of appeals). Baptiste assumes that “motion” and “application” mean the same thing, even though Congress carefully distinguished the two. When Congress uses different words in this way, courts must presume those words mean different things.

In re Anderson, 829 F.3d 1290, 1296 (llth Cir. 2016) (Martin, J., dissenting). My colleagues have articulated other problems with Baptiste. See In re Jones, 830 F.3d 1295, 1297 (11th Cir. 2016) (Rosenbaum and Jill Pryor, J.J., concurring).

Baptiste is blocking relief to prisoners like Mr. Hernandez who ask us to take a second look at their case after we made a mistake in ruling on their case the first time. It seems we did get Mr. Hernandez’s case wrong the first time we saw it. For Mr. Hernandez, this might mean he is required to serve 25 years in prison based on a sentence that is contrary to law. For me, I am left to explain the mistakes the panel and I made the first time he presented us with his problematic sentence.

Mr. Hernandez was sentenced under 18 U.S.C. § 924(c), which requires a longer prison sentence whenever a defendant uses a firearm during a “crime of violence or drug trafficking crime.” 18 U.S.C. § 924(c)(1)(A). The statute gives more than one definition of “crime of violence,” including any felony “that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” Id. § 924(c)(3)(B). Mr. Hernandez claims this definition is unconstitutional in light of Johnson v. United States, 576 U.S. -, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), which held this phrase: “involves conduct that presents a serious potential risk of physical injury to another” in 18 U.S.C. § 924(e)(2)(B)(ii) is unconstitutionally vague.

We recently held that Johnson could invalidate the “very similar” § 924(c)(3)(B) language. In re Pinder, 824 F.3d 977, 978 (11th Cir. 2016). If Johnson does apply to invalidate this language in § 924(c)(3)(B), then Mr. Hernandez’s predicate offenses may not “categorically” qualify as a crime of violence for purposes of § 924(c)’s elements clause. Mr. Hernandez was charged with three counts of violating § 924(c). Count 3’s predicate conviction was Hobbs Act extortion. Counts 6 and 11 relied on Mr. Hernandez’s attempted Hobbs Act extortion and carjacking convictions from two separate occasions.

The panel denied Mr. Hernandez’s last application after summarily concluding each of his § 924(c) convictions were based on predicate convictions of Hobbs Act extortion, which “has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” In re Hernandez, No. 16-11862, manuscript op. at 3 (11th Cir. May 17, 2016) (quoting 18 U.S.C. § 924(c)(3)(A)). I believe the panel, of which I was a member, may have been wrong for a number of reasons.

I.

It is not clear to me that Hobbs Act extortion—the predicate conviction for Count 3—is necessarily a “crime of violence” for the purposes of § 924(c). The panel said that it was, but we cited no caselaw or other authority on that crime. This may have been due to our haste to rule on the application, which was decided (as called for by the statute) within a month of when Mr. Hernandez filed his pro se application, and without the benefit of advocacy or argument from a lawyer. As I have discussed in another case:

Forgoing a detailed merits review makes sense because our decisions at this stage are typically based on nothing more than a form filled out by a prisoner. Without any briefing or other argument made by a lawyer, we are ill equipped to decide the merits of the claim. On top of that, we are expected to decide these applications within 30 days of their filing. “Things are different in the district court. That court has the benefit of submissions from both sides, has access to the record, has an opportunity 'to inquire into the evidence, and usually has time to make and explain a decision about whether the petitioner’s claim truly does meet the § 2244(b) requirements.” Given those limitations, it would be much more prudent, I believe, to allow the District Court to decide the merits of these cases in the first instance .... While the merits of Mr. Saint Fleur’s proposed claim seem easier than in some other cases, it is hard to be sure based on the limited record we have at this stage.

In re Saint Fleur, 824 F.3d 1337, 1341-42, 1344 (11th Cir. 2016) (Martin, J., concurring) (citation omitted). Because of this, I overlooked the possibility that Hobbs Act extortion can be committed without any actual, attempted, or threatened use of force. “Extortion” is defined by 18 U.S.C. § 1951(b)(2) as “the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear.” In evaluating someone’s criminal history, we are required to look for the least culpable conduct that could have resulted in the conviction. That means, for the purposes of this case, we must assume that Mr. Hernandez’s conviction rests on the fear of financial loss. The Eleventh Circuit’s pattern jury instructions tell the jury they can convict a defendant of Hobbs Act extortion so long as they believe the defendant consented to giving up property “because of the wrongful use of ... fear.” 11th Cir. Pattern Jury Instructions 70.1 (emphasis added). This definition “includes the fear of financial loss as well as fear of physical violence.” Id. (emphasis added).

The Supreme Court has told us that the term “physical force” as used in § 924(c)(3)(A) requires “violent force,” which means “strong physical force” or “force capable of causing physical pain or injury to another person.” Curtis Johnson v. United States, 559 U.S. 133, 140, 130 S.Ct. 1265, 1271, 176 L.Ed.2d 1 (2010) (quotation omitted). Of course, any given defendant’s crime may have involved “physical force” as described by Curtis Johnson. But the actual facts of Mr. Hernandez’s convictions have no legal relevance to our decision about whether the crime he was convicted of is a “crime of violence” under § 924(c)’s elements clause. Rather, this question is one “we must answer ‘categorically’—that is, by reference to the elements of the offense, and not the actual facts of [the defendant’s] conduct.” United States v. McGuire, 706 F.3d 1333, 1336 (11th Cir. 2013) (O’Connor, J.). Pursuant to this categorical approach, if Hobbs Act extortion can be committed without “the use, attempted use, or threatened use of physical force,” which our pattern instructions say it can, then that crime obviously can’t have “as an element the use, attempted use, or threatened use of physical force.”

It also bears repeating that Hobbs Act extortion can be committed “by wrongful use of actual or threatened force, violence, or fear.” 18 U.S.C. § 1951(b)(2). Even though this language says Hobbs Act extortion can be committed either with actual/threatened force, violence, or mere fear, “our inquiry can’t end with simply looking at whether the statute is written disjunc-tively (with the word ‘or’). The text of a statute won’t always tell us if a statute is listing alternative means or definitions, rather than alternative elements.” United States v. Lockett, 810 F.3d 1262, 1268 (11th Cir. 2016). Mathis v. United States, 579 U.S.-, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016), tells us what to do when faced with an alternatively phrased statute:

The first task for a sentencing court ... is [] to determine whether its listed items are elements or means. If they are elements, the court should do what we have previously approved: review the record materials to discover which of the enumerated alternatives played a part in the defendant’s prior conviction, and then compare that element (along with all others) to those of the generic crime. But if instead they are means, the court has no call to decide which of the statutory alternatives was at issue in the earlier prosecution.

Id. at 2256 (citation omitted). Mathis examined the statute’s use of the word “burglary” and in doing so made the distinction between the elements that define a crime and the means by which it can be committed. Id. But this distinction may be even more significant for § 924(c)’s “elements clause.” This “elements clause” expressly requires as an “element” the use, attempted use, or threatened use of physical force against the person or property of another. The law has long been clear that alternative means of committing a crime set out in a federal criminal statute are not alternative “elements.” See, e.g., Richardson v. United States, 526 U.S. 813, 817, 119 S.Ct. 1707, 1710, 143 L.Ed.2d 985 (1999). And again, whether a crime is “within the ambit of 18 U.S.C. § 924(c) ... is a question ... we must answer ‘categorically’—that is, by reference to the elements of the offense.” McGuire, 706 F.3d at 1336 (emphasis added). If Hobbs Act extortion is not a crime of violence as defined by the Supreme Court, then Mr. Hernandez’s § 924(c) sentence is unlawful.

II.

Mr. Hernandez’s § 924(c) convictions under Counts 6 and 11 may be wrong for other reasons as well. Bóth these counts relied on predicate convictions of attempted Hobbs Act extortion and carjacking. Because these counts relied on two predicate crimes, it is impossible to tell from the jury’s verdict whether the jury unanimously agreed that each § 924(c) conviction related to any one particular underlying offense. See In re Gomez, 830 F.3d 1225, 1227 (11th Cir. 2016). That means that if either predicate crime does not qualify as a “crime of violence” under § 924(c) in light of Johnson, then both Count 6 and Count 11 are unlawful. See id. (“[A] general verdict of guilty does not reveal any unanimous finding by the jury that the defendant was guilty of conspiring to carry a firearm during one of the potential predicate offenses, all of predicate offenses, or guilty of conspiring during some and not others.”).

In addition to what I have said about Hobbs Act extortion, attempted Hobbs Act extortion is even less likely to qualify as a “crime of violence” in light of Johnson. As this Court recognized in Gomez, even if the underlying offense (Hobbs Act extortion) is a crime of violence, the attempt to commit that crime may not categorically be a “crime of violence.” Id. at 1228. Beyond the issues I have raised about what qualifies as “extortion,” there is also the unsettled question of whether a defendant can be convicted of attempting Hobbs Act extortion even if he did not take substantial steps toward using or threatening the use of force. See id. Again, we must look to the least culpable conduct for which someone could be convicted of this crime: attempting to cause someone to give up property using the fear of financial loss. It seems to me “the plausible applications of attempted Hobbs Act extortion might not “all require the [attempted] use or threatened use of force.” See McGuire, 706 F.3d at 1337. Our panel therefore should have granted Mr. Hernandez’s application last time and sent it to the District Court to decide these questions “fresh, or in the legal vernacular, de novo .” Jordan v. Sec’y, Dep’t of Corr., 485 F.3d 1351, 1358 (11th Cir. 2007).

III.

As I’ve said, the panel’s decision on Mr. Hernandez’s first application was made quickly after this Court received his prose application, and without the benefit of counsel. Since Baptiste issued, it has been used to bar countless § 924(c) prisoners from even filing a § 2255 motion after we discovered a mistake in our first decision. Mr. Hernandez is among this number. These cases are always troubling, but considering how severe § 924(c) sentences can be, this is especially so. I am also well aware of how often § 924(c) is used to require exceptionally harsh sentences in this circuit. Mr. Hernandez received three § 924(c) sentences for these crimes all charged in a single indictment. In other words, Mr. Hernandez’s record does not show someone who violated § 924(c), got punished for it, then violated it again. That means he received a 475-month sentence for three violations the first time he ever faced this charge. But the § 924(c) violations (charged because Mr. Hernandez used a gun in the crimes) added to his sentence an additional mandatory 300 months (25 years).

Since the time Mr. Hernandez got his over-60-year sentence,' the United States Sentencing Commission has reported to Congress that “[t]he ‘stacking’ of mandatory minimum penalties for multiple violations of section 924(c) results in excessively severe and unjust sentences.” U.S.S.C. Report to Congress, Mandatory Minimum Penalties in the Federal Criminal Justice System, October 2011, at 359. They use the term “stacking” to refer to the practice of charging more than one § 924(c) violation together in a single indictment. “Stacking” results in each violation building on top of the other to trigger a higher mandatory minimum sentence. The first requires at least 5 years in prison, and each one adds 25 years consecutive. Though this system of escalating penalties may have been intended to punish repeat offenders who served one § 924(c) sentence and then violated § 924(c) again later, prosecutors can charge multiple § 924(c) counts to dramatically increase a defendant’s minimum sentence for a series of crimes committed close in time. This includes crimes that all happened in the same day. And “[s]uch a result may occur even if the offender has no prior record.” Id.

According to the Commission’s report to Congress, “[t]he sentences for offenders convicted of multiple counts of an offense under section 924(c) were the highest average sentences for any offenders convicted of an offense carrying a mandatory minimum penalty in fiscal year 2010.” Id. Citing testimony by the Judicial Conference of the United States, the Commission told Congress that sentences under § 924(c) are often greater “than the guideline sentences for offenders who commit the most serious, violent crimes.” Id. at 361. The Sentencing Commission also acknowledged that “the Judicial Conference has urged Congress on at least two occasions to amend the ‘draconian’ penalties established at section 924(c) by making it a ‘trae recidivist statute, if not rescinding it all together.’ ” Id. at 360-61. The Sentencing Commission joined the Judicial Conference of the United States in concluding that the practice of “stacking” § 924(c) sentences is so unjust that Congress should eliminate it. Id. at 364.

Although many things about this case are troubling, perhaps most worrisome is that Mr. Hernandez might never have received this sentence if he had been sentenced in another part of the country. The Sentencing Commission also reported to Congress that the practice of “stacking” § 924(c) charges happens in very few districts. The Commission’s data showed “no evidence that those offenses occur more frequently in those districts than in others.” Id. at 361. The Sentencing Commission thus concluded that “this geographic concentration is attributable to inconsistencies in the charging of multiple violations of § 924(c).” Id. at 361-62. As it happens, the Southern District of Florida, where Mr. Hernandez was sentenced, is one of the districts recognized as exceptionally prolific in charging § 924(c) crimes. In fiscal year 2010, at least one in thirty-five of our entire nation’s § 924(c) sentences came from the Southern District of Florida. IA at 276. The Southern District of Florida was one of only twelve districts in the country that reported having over 50 of these cases that year. Id. For the same period, 38 districts reported having ten or fewer. Id.

III.

If we got it wrong on Mr. Hernandez’s first application (and I fear we did), his sentence may be unlawful. All Mr. Hernandez asked us to do is let the District Court hear a § 2255 motion that would ask if his sentence is illegal. As I wrote in Saint Fleur:

The stakes in these cases are very high, since many of these applicants claim they are in prison beyond the lawful limit of their sentence. And the margin for error is very low, since the “denial of an authorization by a court of appeals to file a second or successive application shall not be appealable and shall not be the subject of a petition for rehearing or for a writ of certiorari.” Federal judges are rarely authorized to make legal decisions that are not subject to review. In the few circumstances for which Congress has given us this authority, we ought to wield it with extreme caution.

824 F.3d at 1344 (Martin, J., concurring) (citation omitted). Baptiste appears to set our earlier decision in stone, even when we get it wrong. Nevertheless Baptiste is binding precedent in this circuit, so Mr. Hernandez will not be allowed to present his case to a District Court for an examination of whether his sentence is legal.

      . Under § 924(c), any person who brandishes a firearm in furtherance of a crime of violence is subject to a statutory mandatory minimum sentence of 7-years imprisonment, which must run consecutively to any other term of imprisonment imposed. 18 U.S.C. §§ 924(c)(l)(A)(ii), (D)(ii). Also, anyone with "a second or subsequent conviction under this subsection ... shall be sentenced to a term of imprisonment of not less than 25 years,” which also must run consecutively to any other term of imprisonment imposed. Id. §§ 924(c)(l)(C)(i), (D)(ii).

      . For more on the intent behind § 924(c), see United States v. Rawlings, 821 F.2d 1543 (11th Cir. 1987).