author: JAMES L. DENNIS, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee v. Martin GUILLEN-CRUZ, also known as Martin Guillen-Martinez, Defendant-Appellant
    No. 16-40131
    United States Court of Appeals, Fifth Circuit.
    Filed April 10, 2017

      Carmen Castillo Mitchell, Jimmy Eric Pardue, Assistant U.S. Attorneys, U.S. Attorney’s Office, Southern District of Texas, Houston, TX, for Plaintiff-Appellee.
    Marjorie A. Meyers, Federal Public Defender, Philip G. Gallagher, H. Michael Sokolow, Assistant Federal Public Defenders, Federal Public Defender’s Office, Southern District of Texas, for Defendant Appellant.
    Before DAVIS, DENNIS, and SOUTHWICK, Circuit Judges.
   JAMES L. DENNIS, Circuit Judge:

Defendant-Appellant Martin Guillen-Cruz pleaded guilty to being found in the United States after a previous deportation in violation of 8 U.S.C. § 1326(a) and (b). The probation officer who prepared Guil-len-Cruz’s presentence report (PSR) added eight points to his offense level because he had a prior conviction for exporting defense articles on the United States Munitions List without a license in violation of 22 U.S.C. § 2778(b)(2) and (c). The PSR concluded that Guillen-Cruz’s conviction constituted a prior aggravated felony for purposes of the United States Sentencing Guidelines (USSG or Guidelines) § 2L1.2(b)(l)(C), as defined in 8 U.S.C. § 1101(a)(43)(C). After all the factors were accounted for, the PSR calculated Guillen-Cruz’s offense level as 14. At sentencing, the district court reduced the offense level to 13, resulting in an advisory sentencing range of 18 to 24 months’ imprisonment. The district court sentenced Guillen-Cruz to 24 months’ imprisonment.

Guillen-Cruz appeals, asserting an argument he did not raise below: the district court inappropriately imposed a sentencing enhancement pursuant to USSG § 2L1.2(b)(l)(C). Because we find that the district court erred in imposing the enhancement, that each factor of plain error review is satisfied, and that the error mer-' its the exercise of our discretion, we VACATE Guillen-Cruz’s sentence and REMAND for resentencing.

I

This court reviews the district court’s interpretation of the Guidelines de novo. United States v. Ocana, 204 F.3d 585, 588 (5th Cir. 2000). Because Guillen-Cruz did not raise an objection to the enhancement before the district court, we review for plain error. See United States v. Hernandez, 690 F.3d 613, 620 (5th Cir. 2012). To establish plain error, Guillen-Cruz must show: (1) an error or defect “that has not been intentionally relinquished or abandoned”; (2) that the legal error was “clear or obvious, rather than subject to reasonable dispute”; and (3) that the error affected his substantial rights. United States v. Escalante-Reyes, 689 F.3d 415, 419 (5th Cir. 2012) (en banc) (quoting Puckett v. United States, 556 U.S. 129, 135, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009)). If these three elements are satisfied, we have the discretion to remedy the error “if the error seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.” Id. (quoting Puckett, 556 U.S. at 135, 129 S.Ct. 1423).

II

Under USSG § 2L1.2(b)(l)(C), a district court must increase a defendant’s offense level by eight if the defendant has previously been deported after a conviction for an aggravated felony. “Aggravated felony” has the meaning given that term at 8 U.S.C. § 1101(a)(43), which contains a lengthy list of offenses and categories of offenses. The Government argues that Guillen-Cruz’s prior conviction under 22 U.S.C. § 2778 qualifies as an aggravated felony either under 8 U.S.C. § 1101(a)(43)(C), defining aggravated felony as “illicit trafficking in firearms,” “destructive devices,” or “explosive materials,” or under § 1101(a) (43)(E) (ii), defining aggravated felony as an offense described in 18 U.S.C. § 924(b).

A

When considering whether a defendant’s prior conviction constitutes an aggravated felony, “courts use what has become known as the ‘categorical approach’: They compare the elements of the statute forming the basis of the defendant’s conviction with the elements of the ‘generic’ crime — ie., the offense as commonly understood.” Descamps v. United States, — U.S. -, 133 S.Ct. 2276, 2281, 186 L.Ed.2d 438 (2013). However, “[i]f the statute of conviction defines multiple offenses, at least one of which does not describe an aggravated felony, we apply a modified categorical approach.” Larin-Ulloa v. Gonzales, 462 F.3d 456, 464 (5th Cir. 2006). This modified categorical approach allows for examination of specified documents to determine under which subsection of a divisible statute the individual was convicted. Omari v. Gonzales, 419 F.3d 303, 308 (5th Cir. 2005). For guilty plea convictions, this “may include consideration of the ‘charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented.’ ” Id. (quoting Shepard v. United States, 544 U.S. 13, 20-21, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005)). Usually, courts must first determine whether to apply the categorical or modified categorical approach. See generally Mathis v. United States, — U.S. -, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016). However, because Guillen-Cruz’s prior offense is not an aggravated felony under either approach, we pretermit deciding which approach is applicable.

B

1

Guillen-Cruz’s sentence was enhanced based on a violation of 22 U.S.C. § 2778(b)(2) and (c), • which prohibit the willful export of articles on the Munitions List, 22 C.F.R. § 121.1, without a license. Guillen-Cruz .argues that his conviction is not an aggravated felony because he was convicted of exporting high-capacity rifle magazines, which he contends is conduct that does not fall under the definition of aggravated felony at 8 U.S.C. § 1101(a)(43)(C). The Government does not argue to the contrary, instead asserting that Guillen-Cruz cannot meet his burden on plain error review because no case establishes that a conviction under 22 U.S.C. § 2778(b) and (c) does not qualify as an aggravated felony.

The Government is correct that, generally, “if a defendant’s theory requires the extension of precedent, any potential error could not have been ‘plain.’ ” United States v. Guzman, 739 F.3d 241, 246 n.8 (5th Cir. 2014) (quoting United States v. Garcia-Rodriguez, 415 F.3d 452, 455 (5th Cir. 2005)). However, this court has found clear error in the absence of precedent where the plain language of the prior offense statute clearly criminalized conduct outside of the Guidelines offense. See United States v. Maturin, 488 F.3d 657, 663 (5th Cir. 2007). To our knowledge, no court has previously decided whether a conviction under 22 U.S.C. § 2778(b)(2) and (c) constitutes an aggravated felony as defined by 8 U.S.C. § 1101(a)(43)(C). Notwithstanding the lack of precedent, it is plain from the face of the relevant statutes and regulations that it does not.

As used in the relevant sentencing provision, USSG § 2L1.2(b)(l)(C), “ ‘aggravated felony’ has the meaning given that term in section. 101(a)(43) of the Immigration and Nationality Act (8 U.S.C. § 1101(a)(43)).” Section 1101(a)(43)(C) defines aggravated felony as “illicit trafficking in firearms or destructive devices (as defined in [18 U.S.C. § 921]) or in explosive materials (as defined in [18 U.S.C. § 841(c) ]).” Under 18 U.S.C. § 921(a)(3), a “firearm” is defined as “(A) any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive; (B) the frame or receiver of any such weapon; (C) any firearm muffler or firearm silencer; or (D) any destructive device.” A “frame or receiver” is the “part of a firearm which provides housing for the hammer, bolt or breechblock and firing mechanism, and which is usually threaded at its forward portion to receive the barrel.” 27 C.F.R. § 479.11. The term “destructive device” means “any explosive, incendiary, or poison gas” bomb, grenade, mine, rocket, missile, or similar device. 18 U.S.C. § 921(a)(4)(A). A destructive device may also be “any type of weapon ... .which will, or which may be readily converted to, expel a projectile by the action of an explosive or other propellant, and which has any barrel with a bore of more than one-half inch in diameter.” Id. § 921(a)(4)(B). Destructive devices include “any combination of parts either designed or intended for use in converting any device into any destructive device described [above] and from which a destructive device may be readily assembled.” Id. § 921(a)(4)(C). “ ‘Explosive materials’ means explosives, blasting agents, and detonators.” Id. § 841(c).

A magazine is an element of a firearm that houses ammunition. See United States v. Gonzalez, 792 F.3d 534, 535-36 (5th Cir. 2015) (including a helpful primer on magazines). Under the definitions discussed above, a rifle magazine is plainly not a “firearm” or “the frame or receiver” of a firearm or a “muffler or firearm silencer.” See 18 U.S.C. § 921(a)(3). Nor is a magazine a “destructive device” for purposes of § 921(a)(4)(A). The closest apparent match is a sub-definition of destructive device that includes “any type of weapon [or combination of parts] ... which will, or which may be readily converted to, expel a projectile by the action of an explosive or other propellant, and which has any barrel with a bore of more than one-half inch in diameter.” Id. at § 921(a)(4)(B)-(C). However, Guillen-Cruz’s prior conviction was for export of magazines that hold 7.62x39 millimeter ammunition, and the statute requires that a weapon or “combination of parts” to create such weapon must have a “barrel with a bore of more than one-half inch in diameter.” Id. Even if a magazine could constitute a subset of a “combination of parts” for purposes of this provision, the barrel bore for a weapon that uses 7.62 millimeter, or .3 inch, ammunition, would not be more than half-an-inch in diameter.

There is no definition in 18 U.S.C. § 841(c) or § 921 that, on its face, includes rifle magazines. Thus, under the modified categorical approach, enhancing Guillen-Cruz’s sentence based on a prior conviction for exporting rifle magazines constituted a clear or obvious error.

The error is even more plain under the categorical approach: Articles on the Munitions List include items that clearly do not fit within the relevant definitions, such as “[w]arships and other combatant vessels,” and “[r]adar systems and equipment.” 22 C.F.R. § 121.1. This renders a conviction under 22 U.S.C. § 2778(b)(2) and (c) categorically broader than the generic offense, “illicit trafficking in firearms,” “destructive devices,” or “explosive materials,” 8 U.S.C. § 1101(a)(43)(C). Thus, “it is indisputably clear from a reading of the plain statutory language” that a conviction for exporting an item on the Munitions List is not an aggravated felony. See Maturin, 488 F.3d at 663.

2

The Government contends that even if Guillen-Cruz’s conviction is not an aggravated felony under § 1101(a)(43)(C), his prior conviction satisfies the definition of aggravated felony at § 1101(a)(43)(E)(ii), which includes “offense[s] described in ... [18 U.S.C. § 924 (b) ] (relating to firearms offenses).” Specifically, the Government claims that Guillen-Cruz’s 22 U.S.C. § 2278' conviction proves an offense described in 18 U.S.C. § 924(b), which states:

Whoever, with intent to commit therewith an offense punishable by imprisonment for a term exceeding one year, or with knowledge or reasonable cause to believe. that an offense punishable by imprisonment for a term exceeding one year is to be committed therewith, ships, transports, or receives a firearm or any ammunition in interstate or foreign commerce shall be fined under this title, or imprisoned not more than ten years, or both.

The Government argues that rifle magazines are “ammunition” for purposes of this statute, and points to a Fourth Circuit case that, it claims, stands for the proposition that proving a 22 U.S.C. § 2778 offense necessarily proves a violation of 18 U.S.C. § 924(b). See United States v. Wilson, 721 F.2d 967, 971 (4th Cir. 1983). Guillen-Cruz argues, inter alia, that the “relating to firearms offenses” parenthetical indicates exclusion of ammu-nitions offenses and that the Fourth Circuit’s decision in Wilson dealt specifically with convictions for “transport of firearms in foreign commerce with intent to commit a felony,” not all 22 U.S.C. § 2778(b) convictions.

While incorporating 18 U.S.C. § 924(b) by reference, the definition of aggravated felony at 8 U.S.C. § 1101(a)(43)(E)(ii) specifies “(relating to firearms offenses).” The Government cites an unpublished Ninth Circuit case and a Board of Immigration Appeals case holding that, notwithstanding the parenthetical, ammunitions offenses qualify as aggravated felonies for purposes of § 1101(a)(43)(E)(ii). Ruvalcaba-Castorena v. Lynch, 637 Fed.Appx. 420, 420 (9th Cir. 2016); In re Oppedisano, 26 I. & N. Dec. 202, 203-06 (BIA 2013). The Government argues that these and other cases, which hold that “relating to” language was descriptive rather than restrictive, show that the parenthetical does not exclude ammunitions — as opposed to firearms — offenses. This understanding comports with this court’s reading of at least one other “relating to” parenthetical in § 1101(a)(43). See Ruiz-Romero v. Reno, 205 F.3d 837, 839-40 (5th Cir. 2000) (“relating to alien smuggling” parenthetical at § 1101(a)(43)(N) was merely descriptive and not restrictive); United States v. Monjaras-Castaneda, 190 F.3d 326, 331 (5th Cir. 1999) (same). Moreover, it comports with a reading of the other subsections of § 1101(a)(43), which reference a number of statutes and frequently include a “relating to” parenthetical, even where all of the offenses referenced in the statute “relate to” the enumerated offense. See, e.g., § 1101(a)(43)(D) (referring to “an offense described in section 1956 of title 18,” which is the section for “[l]aundering of monetary instruments,” and specifying “(relating to laundering of monetary instruments)”); § 1101(a)(43)(J) (referring to 18 U.S.C. § 1962, which lists only racketeer influenced corrupt organizations offenses, and specifying “(relating to racketeer influenced corrupt organizations)”). If the “relating to” language were intended to be restrictive, it would be mere surplusage in each of these examples. See Luster v. Collins (In re Collins), 170 F.3d 512, 512 (5th Cir. 1999) (“The canons of interpretation are suspicious of surplussage [sic].”). Thus, we find the “relating to firearms offenses” parenthetical is descriptive, rather than limiting.

However, even without any limitation, the Government cannot establish its alternative basis for affirmance. First, we disagree with the Fourth Circuit to the extent it held that “proof of all the elements of [22 U.S.C.] § 2778 automatically proves a [18 U.S.C.] § 924(b) violation.” Wilson, 721 F.2d at 971. That cannot be true, as a conviction under 22 U.S.C. § 2278(b) and (c) could be sustained if an individual exported a warship or “[r]adar systems and equipment,” 22 C.F.R. § 121.1, items which are plainly not anticipated by the firearms or ammunition offenses listed in 18 U.S.C. § 924(b). Second, 7.62x39 millimeter magazines are neither “firearms” nor “ammunition” for purposes of § 924(b). Firearm, as used in § 924(b) has the same definition discussed in the previous section, see § 921(a)(3), and does not include magazines for the reasons previously explained. Ammunition is defined as “ammunition or cartridge cases, primers, bullets, or propellant powder designed for use in any firearm.” 18 U.S.C. § 921(a)(17)(A). A magazine is not any of these items, but a part that “stores [bullet] cartridges in a column and attaches to the firearm.” Gonzalez, 792 F.3d at 536. The Government cites no case in support of its claim that a magazine is ammunition. A plain reading of the relevant statutes confirms that the magazine at issue are neither firearms, nor ammunition for purposes of § 924. Thus, the Government fares no better under 8 U.S.C. § 1101(a)(43)(E)(ii) than it did under § 1101(a)(43)(C).

C

Having determined that the district court committed an error that was clear or obvious, and that the Government has not successfully raised an alternative basis for affirmance, we now turn to the remaining prongs of plain error review: the impact on Guillen-Cruz’s substantial rights and our own discretion. See Escalante-Reyes, 689 F.3d at 419. Where a defendant shows “a reasonable probability of a different outcome absent the error,” he has established that the error affected his substantial rights. Molina-Martinez v. United States, — U.S. -, 136 S.Ct. 1338, 1346, 194 L.Ed.2d 444 (2016); see Puckett, 556 U.S. at 135, 129 S.Ct. 1423. Absent the erroneous enhancement, Guillen-Cruz’s advisory range would have been reduced from between 18 and 24 months to between 10 and 16 months of imprisonment. As the Government concedes, because the district court imposed a within-Guidelines sentence, there is a reasonable probability that but for the error, the district court would have imposed a shorter sentence. Thus, Guillen-Cruz has shown that the error affected his substantial rights.

A court should correct a plain, forfeited eiTor affecting substantial rights only where “the error seriously affects the fairness, integrity or public reputation of judicial proceedings.” United States v. Olano, 507 U.S. 725, 736, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (citation, alteration, and internal quotation marks omitted). In evaluating this aspect of plain error review, we “consider the particular facts and degree of error in this case, and compare those factors to other cases that have turned on the fourth prong.” United States v. Martinez-Rodriguez, 821 F.3d 659, 664 (5th Cir. 2016). Guillen-Cruz argues that the error was sufficient to significantly affect his substantial rights, and therefore the error compromised the fairness of the proceedings. The Government argues in its briefing that the court should not exercise its discretion to reverse the error because the degree of error was insignificant, Guil-len-Cruz’s prior conviction under 22 U.S.C. § 2778 was the equivalent of a conviction under 18 U.S.C. § 924(b), and Guillen-Cruz has a substantial criminal history.

The Government made additional contentions concerning our discretion after the conclusion of briefing. In a motion to supplement the record, the Government averred that Guillen Cruz had submitted a letter to the sentencing court in his prior 22 U.S.C. § 2778 case, in which he accepted responsibility for his actions, including possessing rifles and ammunitions with the intent to export these items to Mexico. The Government contends that because Guil-len-Cruz has admitted in a prior action that he committed an aggravated felony, we need not vacate his sentence. The Government raised two additional issues at oral argument, contending (1) that due to a recent Guidelines amendment, had he been convicted of illegal reentry today, Guillen-Cruz’s prior offense would qualify as an aggravated felony under the new definition of that phrase, and (2) that an arrest listed in Guillen-Cruz’s criminal history has since ripened into a theft conviction — an aggravated felony — rendering irrelevant the collateral immigration consequences of the erroneous enhancement. The Government argues that these factors decrease the injustice of letting the erroneous enhancement stand.

As previously discussed, in the absence of the enhancement, Guillen-Cruz’s advisory sentencing range would have been reduced from between 18 and 24 months to between 10 and 16 months of imprisonment. The degree of error in a given case certainly affects whether the fairness, integrity, or public reputation of judicial proceedings has been compromised. See Martinez-Rodriguez, 821 F.3d at 664-67; United States v. John, 597 F.3d 263, 288 (5th Cir. 2010). Despite the Government’s argument that an 8-month difference is a “small degree of error,” this court has held in both published and unpublished opinions that sentencing errors of a similar magnitude seriously affected the fairness, integrity, and public reputation of sentencing proceedings and warranted reversal. See United States v. Santacruz-Hernandez, 648 Fed.Appx. 456, 458 (5th Cir. 2016) (finding reversible plain error where error resulted in sentencing range increase from between 4 and 10 months to between 6 and 12 months and defendant received 12-month sentence); United States v. Mudekunye, 646 F.3d 281, 289-91 (5th Cir. 2011) (finding reversible plain error where error resulted in sentencing range increase from between 63 and 78 months to between 78 and 97 months and defendant received 97-month sentence); John, 597 F.3d at 285-86 (finding reversible plain error where error resulted in sentencing range increase from between 70 and 87 months to between 97 and 121 months and defendant received a 108-month sentence); United States v. Carrizales-Jaramillo, 303 Fed.Appx. 215, 217 (5th Cir. 2008) (finding reversible plain error where error resulted in sentencing range increase from between 24 and 30 months to between 30 and 37 months and defendant received 31-month sentence). We find that the disparity caused by the error in this case weighs in favor of vaca-tur.

We have already established that Guil-len-Cruz’s 22 U.S.C. § 2778 conviction is not an aggravated felony as defined in § 1101(a)(43)(E)(ii). The Government does not cite authority for its contention that a 22. U.S.C. § 2778 conviction is “just as egregious” as an 18 U.S.C. § 924(b) conviction. Thus, this factor does not weigh against exercising our discretion to vacate the sentence in this case.

The Government argues that Guillen-Cruz’s significant criminal history “militates against satisfaction of the fourth prong,” specifically pointing to Guillen-Cruz’s multiple prior arrests and the 22 U.S.C. § 2778 conviction. Guillen-Cruz’s PSR indicates that in the four years preceding his present offense he was arrested for: transporting six undocumented aliens (formal charges were not filed); attempting to smuggle five 5.56 caliber magazines into the United States (formal charges were not filed); unauthorized use of a motor vehicle (the case was dismissed in the interest of justice); burglary of a habitation (the complaint was dismissed); and public intoxication (no charges were filed). At the time the PSR was written, Guillen-Cruz also had a pending charge for theft by appropriation, which the Government informs us has since ripened into a conviction. None of these events contributed to Guillen-Cruz’s criminal history score, which, according to the PSR, meant that the criminal history category substantially under-represented the seriousness of Guil-len-Cruz’s criminal history or the likelihood that he will commit other crimes. However, the district court declined to depart upward on the basis of this information.

We do not believe that the defendant’s criminal history supports a basis for affirming the erroneous sentence. Martinez-Rodriguez, cited by the Government, held that despite the defendant’s criminal history, the court would “not ignore the disparity in the sentences that [the defendant] identifie[d] on appeal.” 821 F.3d at 666-67. While the absolute disparity in that case was greater than it is here, we find that Guillen-Cruz’s criminal history, which largely consists of arrests for which the underlying conduct was never charged or the charges were eventually dismissed does not trump the significant sentencing disparity caused by the district court’s plain error.

The Government failed to raise its argument that Guillen-Cruz previously-admitted responsibility for conduct that could have supported an aggravated felony enhancement in its brief. Parties are required to brief their contentions to preserve them. Fed. R. App. P. 28; see Hernandez v. Garcia Pena, 820 F.3d 782, 786 n.3 (5th Cir. 2016). Whether we will consider an unpreserved argument is a matter of discretion. See United States v. Miranda, 248 F.3d 434, 443 (5th Cir. 2001). Although ' we construe this rule “more leniently when the party who fails to brief an issue is the appellee,” Garcia Pena, 820 F.3d at 786 n.3 (citation omitted), the facts supporting the Government’s argument are noted in the PSR and were readily available prior to briefing. As we see no “substantial public interests” implicated by the resolution of this issue, see Miranda, 248 F.3d at 444, we find that the Government has forfeited it.

Similarly, with respect to the Government’s remaining arguments, even if they had merit, “we generally do not consider contentions raised- for the first time at oral argument,” Martinez v. Mukasey, 519 F.3d 532, 545-46 (5th Cir. 2008), and decline to do so here. As evidenced by the attachment to the Government’s Rule 28j letter — which was filed after oral argument — Guillen-Cruz’s theft conviction was finalized in January 2016, well before the Government submitted its brief on appeal. Similarly, the Guidelines amendment cited was available to the Government in advance of oral argument, at the very least by its November 1, 2016, effective date, see U.S. Sentencing Guidelines Manual app. C, amend. 802 (U.S. Sentencing Comm’n 2016), and should properly have been brought to the court’s attention via a Rule 28j letter in advance of oral argument. The Government has given us no reason to depart from our usual practice.

For these reasons, we VACATE Guillen-Cruz’s sentence and REMAND for resen-tencing.

      . This section was recently amended. Citations to the Guidelines refer to the section that was in effect at the time Guillen-Cruz was sentenced.

      . The Government argues that it is unclear "whether, or to what extent, the categorical or modified categorical approaches” should be used in a case where a defendant’s prior conviction is for a federal offense. However, this court has previously held that the categorical and modified categorical approaches apply when determining whether a prior federal conviction constitutes an aggravated felony under § 1101(a)(43)(C). See, e.g., Franco-Casasola v. Holder, 773 F.3d 33, 36-37 (5th Cir. 2014).

      . The caliber of a firearm corresponds with the caliber of the bullet that the firearm will project. See National Research Council’s Committee to Assess the Feasibility, Accuracy and Technical Capability of a National Ballistics Database, Ballistic Imaging 36 (Nat’l Academies Press 2008).


source: Caselaw Access Project

author: HAYNES, Circuit Judge:

license: Public Domain

text:
    Virgie Ann Romero MCBRIDE, Plaintiff-Appellee Cross-Appellant v. ESTIS WELL SERVICE, L.L.C., Defendant-Appellant Cross-Appellee Saul C. Touchet, Plaintiff-Appellee Cross-Appellant v. Estis Well Service, L.L.C., Defendant-Appellant Cross-Appellee
    No. 16-30481
    United States Court of Appeals, Fifth Circuit.
    FILED April 10, 2017

      Nicholas A. Blanda, Attorney, Lafayette, LA, for Saul C. Touchet.
    Brian C. Colomb, Domengeaux Wright Roy Edwards & Colomb, L.L.C., Lafayette, LA, for Virgie Ann Romero McBride.
    Daniel A. Webb, Brooke Anne Riggs, Sutterfield & Webb, L.L.C., New Orleans, LA, for Defendant-Appellant Cross-Ap-pellee.
    Before SMITH and HAYNES, Circuit Judges, and JUNELL, District Judge.

       District Judge of the Western District of Texas, sitting by designation.

   HAYNES, Circuit Judge:

This consolidated Jones Act and general maritime law case arises out of an accident on a barge in the navigable waterways of Louisiana. The owner of the barge, Defendant Estis Well Services, L.L.C., appeals from the district court’s judgment in favor of plaintiffs Virgie Ann Romero McBride, individually and on behalf of the minor child I.M.S., and Saul C. Touchet. For the reasons explained below, we AFFIRM.

I. Background

This is the second time this case has come before our court. The first appeal was interlocutory, and we held in an en banc opinion that McBride and Touchet could not recover punitive damages on their Jones Act and general maritime law claims. See McBride v. Estis Well Service, L.L.C., 768 F.3d 382 (5th Cir. 2014) (en banc). The accident in this case and the subsequent claims filed against Estis were previously described in the en banc opinion as follows:

These consolidated cases arise out of an accident aboard Estis Rig 23, a barge supporting a truck-mounted drilling rig operating in Bayou Sorrell, a navigable waterway in the State of Louisiana. The truck right toppled over, and one crew member, Skye Sonnier, was fatally pinned between the derrick and mud tank, and three others, Saul Touchet, Brian Suire, and Joshua Bourque, have alleged injuries. At the time of the incident, Estis Well Service, L.L.C. (“Es-tis”) owned and operated Rig 23, and employed Sonnier, Touchet, Suire, and Bourque (collectively, the “crew members”).
Haleigh McBride, individually, on behalf of Sonnier’s minor child, and as adminis-tratrix of Sonnier’s estate, filed suit against Estis, stating causes of action for unseaworthiness under general maritime law and negligence under the Jones Act and seeking compensatory as well as punitive damages under both claims. The other crew members filed separate actions against Estis alleging the same causes of action and also requesting compensatory and punitive damages. Upon the crew members’ motion, the cases were consolidated into a single action.

Id. at 384 (footnote omitted).

After we affirmed the district court’s judgment dismissing the punitive damages claims, the case went back to the district court, culminating in a week-long bench trial. Prior to trial, Estis conceded liability under both the Jones Act and general maritime law claims, but continued to dispute damages and the right to. maintenance and cure. The district court made findings of fact and conclusions of law on the record, and it awarded damages to McBride and both damages and cure to Touchet. On McBride’s claims, the district court ordered Estis to pay damages for, among other things, loss of past support, loss of future support, and survival damages for pre-death fear and conscious pain and suffering. On Touchet’s claims, the district court ordered Estis to pay damages for, among other things, future lost earnings / loss of earning capacity and future medical expenses, and to additionally pay cure until Touchet reaches maximum medical improvement. Estis appeals the district court’s judgment on these specific awards.

II. Standard of Review

When reviewing a judgment from a bench trial, this court reviews the findings of facts for clear error and the legal issues de novo. Lehmann v. GE Glob. Ins. Holding Corp., 524 F.3d 621, 624 (5th Cir. 2008). “Under the clearly erroneous standard, we will reverse only if we have a definite and firm conviction that a mistake has been committed.” Canal Barge Co. v. Toreo Oil Co., 220 F.3d 370, 375 (5th Cir. 2000). “If the district court made a legal error that affected its factual findings, ‘remand is the proper course unless the record permits only one resolution of the factual issue.’ ” Ball v. LeBlanc, 792 F.3d 584, 596 (5th Cir. 2015) (quoting Pullman-Standard v. Swint, 456 U.S. 273, 292, 102 S.Ct. 1781, 72 L.Ed.2d 66 (1982)).

III. Discussion

A. McBride’s Damages Award

Estis challenges the district court’s award of damages to McBride for both pre-death conscious pain and suffering and loss of past and future support. We address each of Estis’s arguments in turn,

i. Pre-Death Fear and Conscious Pain and Suffering

Under the Jones Act, a plaintiff can recover damages for pre-death pain and suffering. De Centeno v. Gulf Fleet Crews, Inc., 798 F.2d 138, 141 (5th Cir. 1986). Compensable pain and suffering includes a victim’s “emotional injury caused by fear of physical injury to himself.” Naquin v. Elevating Boats, L.L.C., 744 F.3d 927, 939 (5th Cir. 2014) (quoting Consol. Rail Corp. v. Gottshall, 512 U.S. 532, 556, 114 S.Ct. 2396, 129 L.Ed.2d 427 (1994)). However, for a plaintiff to recover for a decedent’s pain and suffering, he “must prove, by a preponderance of the evidence, that the decedent was conscious after realizing his danger.” Snyder v. Whittaker Corp., 839 F.2d 1085, 1092 (5th Cir. 1988).

Estis argues that the district court erroneously awarded damages for Sonnier’s pre-death fear and conscious pain and suffering because objective evidence shows that Sonnier was not conscious after impact and thus did not suffer. The district court awarded a total of $400,000 for pre-death fear and conscious pain and suffering, without further delineating between pre-injury and post-injury survival damages. As a threshold matter, Estis does not challenge the district court’s finding of pre-death fear and thus fails to challenge one of the predicate injuries supporting the damages award. Nevertheless, even if he had challenged the finding of pre-death fear, there is sufficient evidence to support the district court’s finding. Eyewitness testimony showed that Sonnier was aware of the danger and running for his life immediately prior to impact, and photographs from the scene showed that his body was positioned in such a way that his left arm was raised in a defensive posture to protect himself.

As to pre-death conscious pain and suffering, the pathologist who performed the autopsy on Sonnier testified that Sonnier could have been conscious and aware for up to five minutes after impact, but was more likely than not conscious for one to two minutes after impact. • Moreover, witness testimony claimed that Sonnier was alive and gurgling blood shortly after impact, and the district court appears to have found this testimony credible. Estis’s attempt to undermine the credibility of the eyewitness testimony based on prior inconsistent statements is unavailing. See In re Port Arthur Towing Co., 42 F.3d 312, 318 (5th Cir. 1995) (“[W]eighing conflicting evidence and inference and determining the relative credibility of witnesses to resolve factual disputes is the [factfinder’s] prov-inee.” (alteration in original) (quoting Turnage v. Gen. Elec. Co., 953 F.2d 206, 207 (5th Cir. 1992))). We therefore hold that the district court’s finding that Sonnier was conscious after impact, the only finding challenged relative to this award, was not clearly erroneous,

ii. Loss of Past and Future Support

Estis next argues that the district court erroneously awarded damages for loss of past and future support. The district court found that damages for loss of support were appropriate because the totality of the facts, including testimony from the child’s mother and Sonnier’s father, showed that Sonnier consistently supported his daughter to the extent he was able to do so. The district court then relied on expert testimony to determine the amount awarded.

Estis contends that the amount awarded was too speculative and not supported by competent evidence. However, the district court found the methodology used by both experts to be reliable and generally accepted in the fields of vocational rehabilitation and economics, and Estis does not directly challenge this finding or point to evidence that otherwise discredits it. Although Estis asserts that the district court failed to consider Sonnier’s earnings at the time of his death, the record clearly shows otherwise. Moreover, the district court limited its consideration of Sonnier’s lost future earnings to a potential career path related to Sonnier’s prior work experience, while explicitly rejecting more optimistic scenarios as too speculative.

Estis’s remaining argument is that an award of damages for loss of support should be limited to the amount awarded in Sonnier’s rescinded child support obligation. Estis points to no evidence that Sonnier’s support for the child was limited to a terminated child support obligation, and likewise cites no case law, and we are unaware of any, showing that damages for loss of support must be limited to child support obligations. To the contrary, the district court found that Sonnier was a devoted father who was committed to supporting the child to the extent he was able to do so and, except while incarcerated, provided the primary means of support for the child. Estis has not shown that this finding was clearly erroneous. Accordingly, we affirm the judgment as to McBride.

B. Touchet’s Damages and Cure Awards

In challenging the damages and cure awards to Touchet, Estis argues that the district court erred by awarding cure payments for future medical expenses and damages for loss of future wages. We address each argument in turn,

i. Future Medical Expenses

The district court ordered Estis to pay future cure until Touchet reaches maximum medical improvement and $55,185 in future medical expenses beyond Touchet’s maximum medical improvement. Estis argues that the $55,185 award for future medical expenses was erroneous because it requires Estis to pay future cure payments for an indefinite period of time. It also seems to argue that the cure payments are erroneous as a matter of law to the extent they continue beyond Touchet’s maximum medical improvement. We conclude that this determination was not reversible error.

“Maintenance and cure is an obligation imposed upon a shipowner to provide for a seaman who becomes ill or injured during his service to the ship.” Boudreaux v. United States, 280 F.3d 461, 468 (5th Cir. 2002). Maintenance entitles an injured seaman to food and lodging, and cure entitles an injured seaman to reimbursement for medical expenses and proper treatment and care. Id. “The maintenance and cure duty terminates only when maximum [medical improvement] has been reached, i.e., ‘where it is probable that further treatment will result in no betterment in the claimant’s condition.’ ” Id. (quoting Rashidi v. Am. President Lines, 96 F.3d 124, 128 (5th Cir. 1996)). When supported by a physician’s testimony, it is appropriate for a district court to award future maintenance and cure until the plaintiff reaches maximum medical improvement. See Lirette v. K & B Boat Rentals, Inc., 579 F.2d 968, 969-70 (5th Cir. 1978). Moreover, a plaintiff can be awarded both cure and tort damages for future medical expenses, so long as no duplication will occur, because the cure obligation is independent of tort law. Boudreaux, 280 F.3d at 468-69; see also Pallis v. United States, 369 Fed.Appx. 538, 545-46 (5th Cir. 2010) (“It is clear from Bou-dreaux that an award of future medical expenses is not duplicative of cure because the former sounds in tort while the latter is a contractual remedy.”).

A review of the record reveals that, contrary to Estis’s assertion, the $55,185 award for future medical expenses was not a lump sum future cure payment but rather a damages award for Estis’s tort liability. The district court made it clear that cure payments would cease once Touchet reached maximum medical improvement, and medical treatments thereafter would be compensated from the $55,185 award for future medical expenses. Indeed, each time the district court ordered cure payments it explicitly ordered Estis to pay cure, whereas the judgment awarding future medical expenses makes no mention of cure payments.

The future cure payments that the district court did award, however, were limited to paying for a surgical plan of care and continued psychological treatments until Touchet reaches maximum medical improvement. Moreover, the award was appropriately supported by the testimony of Estis’s treating physicians. Far from being erroneous, the award for future cure “amounts to little if anything more than a declaration of [Estis’s] undoubted duty to pay maintenance [and cure] until [Touchet] attains maximum possible cure, a duty which existed independent of and regardless of the judgment.” See Lirette, 579 F.2d at 970.

ii. Future Lost Earnings

Estis argues that the award of damages for lost earnings was clearly erroneous because a video of Touchet actively engaged in crabbing work proves that he was not permanently disabled from offshore work. Touchet’s treating physicians testified that Touchet’s activities on the video were consistent with his condition but that he was more likely than not permanently disabled from oilfield work. Based on this testimony, the district court found that Touchet was permanently disabled. This factual finding was not clearly erroneous. Accordingly, we affirm the district court’s judgment awarding future cure payments, future medical expenses, and future lost earnings to Touchet.

AFFIRMED.

      . McBride and Touchet cross-appeal asking this court to reconsider its prior en banc decision in this case holding that punitive damages are not available to the cross-appellants on their Jones Act and general maritime law claims. See McBride v. Estis Well Service, L.L.C., 768 F.3d 382 (5th Cir. 2014) (en banc). As McBride and Touchet both concede, consideration of this claim is foreclosed by our prior en banc decision.

      . The original named plaintiff, individually and on behalf of I.M.S., was the minor child's biological mother, Haleigh Janee McBride. I.M.S. was subsequently adopted by her maternal grandparents, and Virgie McBride was substituted as the named plaintiff.

      . See Sea-Land Servs., Inc. v. Gaudet, 414 U.S. 573, 584-85, 94 S.Ct. 806, 39 L.Ed.2d 9 (1974) ("Recovery for loss of support ... includes all the financial contributions that the decedent would have made to his dependents had he lived” (emphasis added)), superseded by statute on other grounds, Longshore and Harbor Workers’ Compensation Act Amendments of 1972, Pub. L. No. 92-576, 86 Stat. 1263, as recognized in Miles v. Apex Marine Corp., 498 U.S. 19, 111 S.Ct. 317, 112 L.Ed.2d 275 (1990).

      . Although Pattis is not "controlling precedent,” it "may be [cited as] persuasive authority.” Ballard v. Burton, 444 F.3d 391, 401 n.7 (5th Cir. 2006) (citing 5th Cir. R. 47.5.4).


author: EDITH H. JONES, Circuit Judge:

text:
    Lonny ACKER, Plaintiff-Appellant v. GENERAL MOTORS, L.L.C., Defendant-Appellee
    No. 16-11174
    United States Court of Appeals, Fifth Circuit.
    FILED April 10, 2017

      Allison Christine Reppond, Trial Attorney, Rob Wiley, P.C., Dallas, TX, for Plaintiff-Appellant.
    John Bridges Brown, Attorney, Stephanie Johnson Manning, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Dallas, TX, for Defendant-Appellee.
    Before STEWART, Chief Judge, and JONES and OWEN, Circuit Judges.
   EDITH H. JONES, Circuit Judge:

Appellant Lonny Acker is a General Motors, L.L.C. (“GM”) employee who was approved for intermittent Family and Medical Leave Act (“FMLA”) leave but on several occasions was absent from work and did not follow company protocol for requesting FMLA leave. He suffered several weeks of disciplinary unpaid layoff. He sued GM for FMLA interference and retaliation and for disability discrimination under the Americans with Disabilities Act (“ADA”) and the Texas Commission on Human Rights Act (“TCHRA”). The district court entered summary judgment for GM. We AFFIRM, principally because the FMLA and accompanying regulations require employees to follow their employer’s “usual and customary” procedures for requesting FMLA leave absent “unusual circumstances,” 29 C.F.R. § 825.303(c).

BACKGROUND

Acker began working for GM in the fall of 2000 at its automobile plant in Kokomo, Indiana. In summer 2014, he voluntarily transferred to the GM assembly plant in Arlington, Texas. He is an electrician who typically works third shift. Acker suffers from acute iron-deficiency anemia that sometimes causes him to experience blackouts, grayouts, heart palpitations, and fatigue. As a consequence, Acker was certified for intermittent medical leave under the FMLA by his physician.

GM has a detailed attendance policy. The product of collective bargaining between GM and the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, this attendance policy is codified in what is known as “Document No. 8 — Memorandum of Understanding — Special Procedure for Attendance” (“Doc. 8”). As a current electrician covered by the collective bargaining agreement, Acker is subject to Doc. 8.

For an unplanned absence, the collective bargaining agreement simply requires employees to notify GM at least thirty minutes before the shift starts. Failure to call by the deadline is considered an “instance” under Doc. 8, unless the employee can explain the untimeliness satisfactorily to management. When absences are unexcused, GM allocates up to eight hours per instance of that employee’s “Vacation Restricted” hours to each hour that the employee was absent. Under this arrangement, employees are permitted up to five “instances” of unexcused absence before they become subject to discipline under the policy. Acker testified that he understood this use of “Vacation Restricted” time as a “free pass.” After the “free” absences are used up, Doc. 8 imposes “Attendance Improvement Steps” for additional unexcused absences through a six-step program that moves from two written warnings to unpaid disciplinary layoff to termination.

GM also has a policy for requesting FMLA leave. Union benefit representatives at each GM facility assist employees ■with FMLA leave requests. Employees must make an initial request for FMLA leave with GM’s Benefits & Services center, administered by third-party vendor Sedgwick Claims Management Services, Inc. (“Sedgwick”). Once an employee has requested intermittent FMLA leave, Sedg-wick sends the employee a letter reiterating GM’s policies for requesting and taking leave. This policy is described in an employee letter as follows:

If you have requested intermittent leave, you are required to report any time taken under the Family and Medical Leave Act (FMLA), at least 30 minutes PRIOR to the start of your normal scheduled work shift, by calling the GM Absence Call In Line [redacted] and selecting the “FMLA” option when prompted (option #8). You are also required to call the GM Benefits & Services Center at [redacted] by the end of your normally scheduled work shift to report your FMLA absence. When calling, select the prompt for “FMLA”.

Acker testified that he was familiar with this procedure and received a packet including this letter.

By September 2014, Acker testified, he had used all of his “free pass” days. In mid-November 2014, Acker contacted Sedgwick to request FMLA leave. Acker received instruction from Sedgwick to obtain a medical certification by November 28, and he complied. On December 9, Sedgwick notified him that he was approved for intermittent FMLA leave from November 11, 2014 to May 11, 2015. Nevertheless, he began receiving discipline for several unapproved absences according to GM’s procedures.

The record is undisputed concerning the disciplinary procedure GM followed and the facts underlying the discipline. Acker was absent from work on September 29 and received his first written disciplinary warning under Doc. 8 on October 7. Acker testified that he did not request FMLA leave for the September 29 absence. Acker was absent a month later, on October 30, and was disciplined with a second written warning a day later. Acker testified that he did not request FMLA leave for this absence, either.

Acker was absent again November 12, 13, and 14, which were counted as two “instances” of unexeused absence under GM’s policy. Combined with the first two unexcused absences, Acker became subject to two weeks’ unpaid suspension as a disciplinary layoff. Acker contacted Sedgwick to request FMLA leave for the November 12 and 13 absences, and his request was approved by Sedgwick. When GM was made aware of this approval, GM rescinded its disciplinary action for November 12 and 13. However, Acker testified that, for the November 14 absence, he failed to call in 30 minutes before his shift began and missed the FMLA absence call-in time by over an hour. For this November 14 default, GM treated the first week of the earlier disciplinary layoff, which Acker had already undergone, as discipline pursuant to Doc. 8.

Acker was also absent on November 22 and 23. Phone records produced by Acker confirm that none of his three calls to the GM shift absence line were timely. Acker was issued another disciplinary layoff with two weeks of unpaid suspension for these unexcused absences, in line with the Doc. 8 policy of progressive discipline.

Acker was absent again on December 6, 7, and 8. His absence for December 7 was approved because Acker timely called both the GM absence line and the GM Benefits & Services line. While Acker did contact the GM absence line for December 6 and December 8, he failed to contact the Benefits & Services line in time on both occasions. Thus on January 14, 2015, Acker was denied FMLA coverage for both days and issued a disciplinary layoff under GM policy, this time a 30 day unpaid suspension. Although the Doc. 8 policy required Acker’s termination for these additional unexcused absences, GM retained him with an opportunity to correct his attendance issues. The last disciplinary action GM had to take with respect to Acker’s attendance was on January 14.

Since February 2015, Acker testified, he has taken more than 80 days of intermittent FMLA leave and managed to timely call the GM Absence and Benefits & Services lines according to the collective bargaining agreement. Nevertheless, Acker filed suit against GM in September 2015 for damages concerning the unpaid suspensions. After discovery, GM moved for and was granted summary judgment by the district court. Acker timely appealed.

STANDARD OF REVIEW

“Summary judgment is required ‘if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.’” Lawrence v. Fed. Home Loan Mortg. Corp., 808 F.3d 670, 673 (5th Cir. 2015) (quoting Fed. R. Civ. P. 56(a)). Summary judgment cannot be defeated through “[c]onclusional allegations and denials, speculation, improbable inferences, unsubstantiated assertions, and legalistic argumentation.” Oliver v. Scott, 276 F.3d 736, 744 (5th Cir. 2002).

DISCUSSION

Acker raises three issues on appeal. First, regarding his FMLA interference claim, he contends that his calls to GM and the Benefits & Services lines were sufficient to raise a genuine issue of material fact as to whether he provided reasonable notice of his need for unplanned FMLA leave. Second, he claims that the disciplinary layoffs were in retaliation for exercising his FMLA rights. Third, he argues that his request for FMLA leave was also a request for a reasonable accommodation for a disability under the ADA and TCHRA, and that the disciplinary layoffs thus also constituted disability discrimination.

A. FMLA Interference

To prove an interference claim, a plaintiff “must at least show that [the defendant] interfered with, restrained, or denied [his] exercise or attempt to exercise FMLA rights, and that the violation prejudiced [him].” Bryant v. Tex. Dep’t of Aging & Disability Servs., 781 F.3d 764, 770 (5th Cir. 2015) (quoting Cuellar v. Keppel Amfels, L.L.C., 731 F.3d 342, 347 (5th Cir. 2013)). An “interference claim merely requires proof that the employer denied the employee his entitlements under the FMLA.” Stallings v. Hussmann Corp., 447 F.3d 1041, 1051 (8th Cir. 2006).

While the employee has a right to take leave under the FMLA, the employee must give his employer notice of his intention to take leave in order to be entitled to it. See 29 U.S.C. § 2612(e)(1) (“Requirement of notice”); (2) (“Duties of employee”). See also 29 C.F.R. § 825.303. When the need for leave is foreseeable, the employee generally “must provide the employer at least 30 days advance notice before FMLA leave is to begin.” 29 C.F.R. § 825.302(a). If 30 days’ notice is not practicable, “notice must be given as soon as practicable.” Id. In all instances, “an employee must comply with the employer’s usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances.” Id. § 825.302(d). “Where an employee does not comply with the employer’s usual notice and procedural requirements, and no unusual circumstances justify the failure to comply, FMLA-protected leave may be delayed or denied.” Id. This regulation “explicitly permits employers to condition FMLA-pro-tected leave upon an employee’s compliance with the employer’s usual notice and procedural requirements, absent unusual circumstances.” Srouder v. Dana Light Axle Mfg., LLC, 725 F.3d 608, 614 (6th Cir. 2013).

Even when an employee’s need for leave is unforeseeable, the regulations make clear the employee’s duty to comply with the employer’s policy. “When the need for leave is not foreseeable, an employee must comply with the employer’s usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances.” 29 C.F.R. § 825.303(c). “[A]n employer generally does not violate the FMLA if it terminates an employee for failing to comply with a policy requiring notice of absences, even if the absences that the employee failed to report were protected by the FMLA.” Twigg v. Hawker Beechcraft Corp., 659 F.3d 987, 1008-09 (10th Cir. 2011). See also Bacon v. Hennepin Cty. Med. Ctr., 550 F.3d 711, 715 (8th Cir. 2008) (“Employers who enforce [call-in] policies by firing employees on FMLA leave for noncompliance do not violate the FMLA.”).

An employer may thus require that an employee hew to the employer’s usual and customary procedures for requesting FMLA leave. Discipline resulting from the employee’s failure to do so does not constitute interference with the exercise of FMLA rights unless the employee can show unusual circumstances. “Formal notice-of-absence policies serve an employer’s legitimate business interests in keeping apprised of the status of its employees and ensuring that it has an adequate workforce to carry out its normal operations.” Twigg, 659 F.3d at 1009; Goff v. Singing River Health Sys., 6 F.Supp.3d 704, 711 (S.D. Miss. 2014) (summary judgment is appropriate in FMLA case without evidence of unusual circumstances excusing employee’s failure to call employer timely).

It is undisputed that Acker’s phone records show he failed to call in timely under GM’s procedure on the dates for which he received disciplinary layoff: November 14, 22, 23, and December 6 and 8. Acker cannot rely on his deposition testimony, inconsistent with phone records that he described as the “universe” of his calls during the relevant period, to create a fact issue on timeliness. Vais Arms, Inc. v. Vais, 383 F.3d 287, 294 (5th Cir. 2004) (“vague, self-serving statements” are “not sufficient to raise a genuine issue of material fact”); see also Jackson v. Cal-W. Packaging Corp., 602 F.3d 374, 379 (5th Cir. 2010). Thus, in order to establish FMLA interference, Acker has to show that for each of these non-FMLA-ap-proved absences, unusual circumstances prevented him from following the union-negotiated procedures. This he has not done.

Acker testified that his disability causes him to experience severe disorientation, blackouts, grayouts, heart palpitations, and extreme fatigue when in. the acute phase, and that his disability can reach the acute phase suddenly and could constitute a sudden medical issue or emergency. He offered no factual support, however, that he reached the acute stage or experienced a medical emergency on the days in question. Indeed, he testified that he was too “dizzy” to follow GM’s call-in procedure only on November 14, but he was given FMLA leave and was not disciplined under Doc. 8 for that absence. He did not explain why “unusual circumstances” left him capable of calling one line, but not the other: on November 22, December 6, and December 8, Acker timely called the GM absence line, but failed to call the GM Benefits & Services line. There is no proof that unusual circumstances arising from his condition prevented him from complying with GM’s call-in policy with respect to one line but not the other.

Relying on Saenz v. Harlingen Med. Ctr., L.P., 613 F.3d 576 (5th Cir. 2010) as well as Millea v. Metro-North R.R. Co., 658 F.3d 154 (2d Cir. 2011), Acker argues that failure to comply with an employer’s usual and customary procedures cannot be grounds for discipline when the employee provides “reasonable” notice of an unforeseen absence. He thus argues that there is a fact issue whether his (untimely) phone calls provided reasonable notice to GM irrespective of company policies.

Acker’s reliance on these cases is misplaced. First, the holdings in each of those cases are predicated on outdated, materially different regulations. The Sixth Circuit noted the material changes to the FMLA regulations that went into effect on January 16, 2009. See Srouder, 725 F.3d 608. Based on the previous regulations, the Sixth Circuit had held that the “FMLA does not permit an employer to limit his employee’s FMLA rights by denying them whenever an employee fails to comply with internal procedural requirements that are more strict than those contemplated by the FMLA.” Id. at 613-614 (citing Cavin v. Honda of Am. Mfg., Inc., 346 F.3d 713 (6th Cir. 2003)). But the revised regulations explicitly allow employers to condition FMLA leave on following the employer’s policy. Srouder, 725 F.3d at 614. Indeed, this court in Saenz acknowledged that the posb-2009 regulations, if applicable, could have required summary judgment for the employer:

the 2009 revisions to the FMLA regulations governing notice should not apply to the instant case ... the most salient regulatory change — the revisions to 29 C.F.R. § 825.303 — arguably increases the duties imposed upon employees seeking FMLA leave. Were we to apply the new regulations, [the employer] might very well be entitled to summary judgment ... we. decline to retroactively apply the new regulations, and all citations to the governing FMLA regulations refer to the pre-2009 Code of Federal Regulations edition.

Saenz, 613 F.3d at 582 n.9. The new regulations control the standard for this case, and Acker has not raised a fact issue for FMLA interference.

B. FMLA Retaliation

To prove FMLA retaliation, the employee must demonstrate: “1) he was protected under the FMLA; 2) he suffered an adverse employment action; and 3) he was treated less favorably than an employee who had not requested leave under the FMLA or the adverse decision was made because he sought protection under the FMLA.” Mauder v. Metro. Transit Auth. of Harris Cty., Tex., 446 F.3d 574, 583 (5th Cir. 2006). The third element requires the employee to show “there is a causal link” between the FMLA-protected activity and the adverse action. Richardson v. Monitronics Int’l, Inc., 434 F.3d 327, 332 (5th Cir. 2005).

Acker cannot make a prima facie case. He has not shown how his disciplinary leave was caused by his attempts to seek protection under the FMLA instead of his failure to follow GM’s attendance and absence approval process. Acker is still employed by GM. He has taken more than 30 days of intermittent FMLA leave since his last disciplinary layoff by following GM’s call-in procedure. It is undisputed that GM’s policy should have resulted in Acker’s termination for his absence on December 6, but GM offered Acker the opportunity to correct his attendance problems. These undisputed facts belie any casual connection between his claimed adverse. action and his attempt to seek FMLA leave.

C. ADA/TCHRA

Acker also argues that in disciplining him for violation of the Doc. 8 procedures, GM failed to accommodate his disability by means of FMLA leave. He contends that his requests for FMLA leave, although made outside of the process GM provided, were simultaneously requests for a reasonable accommodation under the ADA, and concomitantly, the TCHRA. Acker argues that because a request for medical leave generally is a request for an accommodation in some instances, a request for FMLA leave is also a request under the ADA. The district court disagreed and held that Acker did not make a request for a reasonable accommodation.

Employees who require accommodation due to a disability are responsible for requesting a reasonable accommodation. See Griffin v. United Parcel Serv., Inc., 661 F.3d 216 (5th Cir. 2011) (quoting E.E.O.C. v. Chevron Phillips Chem. Co., L.P., 570 F.3d .606, 621 (5th Cir. 2009)). However, a request for FMLA leave is not a request for a reasonable accommodation under the ADA. “The ADA and the FMLA have divergent aims, operate in different ways, and offer disparate relief.” Navarro v. Pfizer Corp., 261 F.3d 90, 101 (1st Cir. 2001). “FMLA leave is not a reasonable accommodation under the ADA; rather it is a right enforceable under a separate statutory provision.” Harville v. Tex. A&M Univ., 833 F.Supp.2d 645, 661 (S.D. Tex. 2011) (citing Trevino v. United Parcel Serv., No. 3:08-CV-889-B, 2009 WL 3423039, *12 (N.D.Tex. Oct. 23, 2009)).

Textual comparison of the FMLA with the ADA demonstrates why requesting FMLA leave alone is not a request for an ADA reasonable accommodation. An employee who requests FMLA leave asserts he has a “serious health condition that makes the employee unable to perform the functions of the position of such employee.” 29 U.S.C. § 2612(a)(1)(D) (“Entitlement to leave”). A request for a reasonable accommodation under the ADA is a claim that the employee “with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” 42 U.S.C. § 12111(8) (“Definitions: Qualified Individual”). See Capps v. Mondelez Global LLC, 147 F.Supp.3d 327, 340-41 (E.D. Penn. 2015) (“an employee who requests leave does not clearly communicate to her employer that she is disabled and desires an accommodation.”) (quoting Rutt v. City of Reading, Pa., No. CIV.A. 13-4559, 2014 WL 5390428, *4 (E.D. Pa. Oct. 22, 2014)). Thus, an employee seeking FMLA leave is by nature arguing that he cannot perform the functions of the job, while an employee requesting a reasonable accommodation communicates that he can perform the essential functions of the job.

Acker has not demonstrated any dispute of material fact that his untimely phone calls.could have sought a reasonable accommodation under the ADA. He failed to follow GM’s absence procedure, was disciplined, and has successfully followed GM’s absence procedure since. As a consequence, Acker has not proved how GM denied him any accommodation.

CONCLUSION

For the foregoing reasons, the judgment of the district court is AFFIRMED.

      . Likewise Millea involved an incident in 2006, three years before the material change in the regulations. See 658 F.3d at 159-60 (describing the relevant incident in 2006). In addition, that case is factually distinct because unlike here, where Acker did not follow the timing requirements of his employer’s FMLA request policy, the employer in Millea "received timely, although indirect, notice of Millea’s use of FMLA leave.” Id.

      . The Texas Supreme Court has held that the TCHRA can be interpreted in lockstep with the federal ADA. By adopting the TCHR, "the Legislature intended to correlate state law with federal law in employment discrimination cases ... Therefore, we look to federal law to interpret the Act’s provisions.” Auto-Zone, Inc. v. Reyes, 272 S.W.3d 588, 592 (Tex. 2008) (quotations and citations omitted).


author: PRISCILLA R. OWEN, Circuit Judge:

text:
    John DOE, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
    No. 16-20567
    United States Court of Appeals, Fifth Circuit.
    FILED April 11, 2017
    REVISED April 12, 2017

      Charles S. Leeper, Drinker, Biddle & Reath, L.L.P., Washington, DC, Dorothy Alicia Hickok, Esq., Drinker, Biddle & Reath, L.L.P., Philadelphia, PA, for Plaintiff-Appellant.
    Jimmy Anthony Rodriguez, Assistant U.S. Attorney, U.S. Attorney’s Office, Houston, TX, for Defendant-Appellee.
    Before STEWART, Chief Judge, and JONES and OWEN, Circuit Judges.
   PRISCILLA R. OWEN, Circuit Judge:

John Doe filed suit against the United States in the Southern District of Texas, asserting that the Government violated his Fifth Amendment due process rights by accusing him of a crime during the course of a criminal proceeding in which he was not named a defendant. Doe sought a declaratory judgment that his Fifth Amendment rights had been violated, expungement of court records, and other forms of nonmonetary relief. The district court granted a motion to dismiss filed by the Government, holding that the action was barred by limitations. We affirm.

I

In 2008, the Government filed a Criminal Information (the Information), charging a defendant to whom we will refer as Roe under 18 U.S.C. § 371 with conspiracy to violate the Foreign Corrupt Practices Act (FCPA) and conspiracy to commit mail and wire fraud for actions that occurred while Roe was “an officer/or director of [ABC Corp.] and its successor company, [XYZ Corp.]” As the basis of the mail and wire fraud count, the Government asserted that Roe and a “Consultant” engaged in a kickback scheme. To effectuate this scheme, the Government alleged, Roe would cause ABC Corp. and XYZ Corp. to enter into consulting contracts with the Consultant or companies controlled by the Consultant; in return, the Consultant would pay a portion of his consulting fee to Roe.

In the course of explaining the kickback scheme, the Government noted that the Consultant

was a citizen of the United States and a citizen of [a foreign country specifically identified]. From in or about 1977, until in or about 1988, [ ] Consultant was a salesperson employed by [ABC Corp.] responsible for [projects abroad]. In or about 1988, [ ] Consultant resigned from [ABC Corp.] and became a consultant to [ABC Corp.] and subsequently [XYZ Corp.], among other firms. At various times after 1988, [ ] Consultant used corporate vehicles for his consulting business.

The Government identified two of the Consultant’s corporate vehicles by name as, respectively, the “[First] Consulting Company” and the “[Second] Consulting Company” and specified the locations of projects — and in one ease, the specific project — in which the Consultant allegedly participated in the kickback scheme.

Roe pleaded guilty to both conspiracy charges. In the plea agreement, the Government described the factual basis for the guilty plea by largely reiterating the allegations in the Information. However, the Government specifically named one of the foreign projects to which it had previously referred more generally in the Information. During the plea hearing, the Government also noted that its “investigation is broad and [that] there are [other] potential defendants, targets, both here and abroad” and again referenced that the Consultant is “a dual U.S. and foreign national.”

Doe maintains that the Government’s description of the Consultant identified him “in all respects except by name” because “there are few contractors and customers that comprise” the particular industry in which he worked, and “no other person in the industry possesses these same personal and biographical characteristics.” Doe alleges that his clients were able to identify him from this description, causing some clients to cease engaging Doe and his companies for consulting and ultimately costing him “many millions of dollars in consulting fees.” He also asserts that he “was unable to obtain further consulting work[,] ... which was a direct result of the prosecutor’s public statements during the [Roe] plea hearing and elsewhere that the [Government’s] investigation of the [ ] Consultant and others was ‘ongoing.’ ”

Roe’s sentencing did not occur until 2012. During the sentencing hearing, the Government explained the basis for its sentencing recommendation. In pertinent part, it stated that Roe’s “involvement in a very substantial kickback scheme with another consultant in which he stole upwards of $11 million from [XYZ Corp.] is certainly something that faetor[ed] into [its] recommendation.” In response to the district court’s question of whether the kickback scheme benefitted XYZ Corp., the Government noted that the scheme benefitted XYZ Corp. “in the sense that the consultants [sic] that [Roe] was working with was hired to engage in bid-rigging” and obtained projects for XYZ Corp. Doe claims that these references to the consultant involved in the kickback scheme triggered renewed interest from colleagues and former clients. He also alleges that, at this time, he experienced difficulties conducting his financial affairs in his native country because authorities believed that Doe was the subject of a criminal investigation in the United States.

In 2015, Doe filed suit in the Southern District of Texas, contending that the Government violated his right to due process by publicly accusing him of a crime in a' criminal proceeding without providing him a public forum for vindication. The relief he sought included: a declaration that the Government violated his Fifth Amendment right to due process; an order directing the Clerk of the Court to “obliterate and strike” all references to him from the publicly filed documents in Roe’s criminal proceeding; and an order directing the Government to “obliterate and strike from the [Department of Justice] website, and from any other record available to the public, all references” to him in documents relating to or publicly filed in Roe’s criminal proceeding.

The Government moved to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1), arguing that sovereign immunity barred Doe’s suit, and pursuant to Rule 12(b)(6), contending that on the face of the Complaint, Doe’s action was barred by limitations. The district court concluded that sovereign immunity did not bar Doe’s claim and, therefore, declined to dismiss for lack of subject-matter jurisdiction. But the district court held that Doe’s claim for relief based on statements made in 2008 was time-barred by 28 U.S.C. § 2401(a). The district court then considered the statements made by the prosecutor at the sentencing hearing in 2012 in isolation from those made in 2008 and held that Doe had not alleged a plausible due process violation. The statements at the sentencing hearing, the district court concluded, were devoid of “potentially identifying information” and furthered the Government’s legitimate interest in divulging the details of the case against Roe at sentencing. The district court determined sua sponte that efforts to amend Doe’s complaint to set forth additional facts to support equitable tolling of limitations would be futile and dismissed the suit with prejudice. Doe appealed.

II

The district court had jurisdiction under 28 U.S.C. § 1331 because Doe’s claims arise under the Fifth Amendment and presented a federal question. However, because Doe sued the United States, the district court lacked subject matter jurisdiction unless there has been a waiver of sovereign immunity. “A waiver of sovereign immunity ‘cannot be implied but must be unequivocally expressed.’ ” “[A] waiver of the Government’s sovereign immunity will be strictly construed, in terms of its scope, in favor of the sovereign.” Whether the Government is entitled to sovereign immunity from suit presents a question of law that we review de novo.

A

In arguing that sovereign immunity is not implicated, Doe relies on United States v. Briggs, in which this court held that “[sovereign immunity does not bar ... relief’ when an unindicted individual requests to have his or her name expunged after being accused of a crime in the indictment but is not provided a forum for vindication. We concluded that a request to expunge “in the circumstances ... presented” in Briggs is “no more subject to the defense of sovereign immunity than the filing of a bill of particulars or the raising of an objection ... by the named defendants.”

The Government asserts that when 5 U.S.C. § 702, which is part of the Administrative Procedure Act (APA), was amended, Congress intended to preclude proceedings like those in Briggs. The current text of § 702 is set forth in the margin. A 1976 amendment, enacted the year after Briggs was decided, added, in relevant part, the second sentence of § 702. We discern no intent from the text of § 702 to foreclose a claim like that asserted in Briggs that is pursued in an ongoing criminal proceeding. The Government was already a party to the proceeding in Briggs because it had initiated the criminal prosecution. Although it was alleged in Briggs that the Government had committed a constitutional violation, no relief was sought from the Government as a consequence. The unindicted injured party invoked the court’s authority to manage and expunge its own records. That did not implicate the Government’s sovereign immunity from suit.

The decision in Briggs, as well as its progeny in our Circuit, addressed a situation procedurally distinct from the present action. Doe has initiated a separate, civil action, “halting] the federal government into a court proceeding” as the named defendant. There is no ongoing criminal proceeding to which the Government is already a party, though the new action has been brought in the same court in which Roe was convicted, and Doe seeks ex-pungement of those criminal court records, in addition to other forms of relief.

A court seemingly has the power to manage its records, even though the proceeding that generated those records has concluded. A request for expungement or sealing of court records would not appear to implicate sovereign immunity, but we are not called upon to address that question in this ease. Doe has directly sued the United States, and Doe seeks relief beyond expungement, including a declaration that the Government violated his Fifth Amendment rights when it accused him of a crime in the Roe criminal prosecution.

Because the Government has been sued, subject matter jurisdiction is at issue, and we must resolve that issue “prior to addressing the merits” of any claims. The Government moved to dismiss all of Doe’s claims, asserting that they are barred by sovereign immunity and arguing that the only potential waiver of sovereign immunity is contained in 5 U.S.C. § 702. The Government contends that there has been no “agency action” within the meaning of 5 U.S.C. § 551(13), and that “agency action” as defined in § 551(13) is required in order for the waiver in § 702 to apply. The district court denied that motion but dismissed on the basis of limitations. However, if subject matter jurisdiction is lacking, this court must dismiss, without reaching the limitations issues.

As an initial matter, the Government does not contend that the Department of Justice (DOJ) is not an “agency.” We note that 5 U.S.C. § 551 defines “agency” as “each authority of the Government of the United States, whether or not it is within or subject to review by another agency,” but it also lists a number of exclusions from the term “agency,” including the courts of the United States and Congress. The DOJ is not among these exclusions. A similar definition of “agency” and a similar list of exclusions appear in 5 U.S.C. § 701. The DOJ is listed as an “Executive department ]” in 5 U.S.C. § 101, and an “Executive department” is included as an “Executive agency” in 5 U.S.C. § 105. It therefore appears that the DOJ may be an agency with regard to certain acts or failures to act, though 5 U.S.C. § 701(a)(2) excludes from Chapter 7 of the APA “agency action [that] is committed to agency discretion by law.”

Congress amended § 702 in 1976 to allow “[t]he United States [to] be named as a defendant” when nonmonetary relief is sought and the plaintiff’s claim is that “an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority.” The intended effect of the amendment was to “broaden the avenues for judicial review of agency action by eliminating the defense of sovereign immunity in cases covered by the amendment.”

At least two Circuit Courts of Appeals have held that the second sentence of § 702 waives sovereign immunity for all actions seeking equitable, nonmonetary relief against an agency, even if there has been no “agency action” within the meaning of the APA. However, our court has held that sovereign immunity is not waived by § 702 unless there has been “agency action,” as that term is defined in § 551(13). Agency action is statutorily defined to “include[ ] the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act.”

Doe maintains that he has suffered a “sanction.” The Government asserts that it is not a “sanction” for a governmental agency to make statements that “allegedly harm a person’s reputation or standing in the business community,” citing a 1948 decision from the D.C. Circuit Court of Appeals. The D.C. Circuit has called that decision into question at least twice, observing that “ ‘an agency intent on penalizing a party through adverse publicity, especially false or unauthorized publicity, might well merit a review of its action’ as a sanction.”

The term “sanction” is defined in 5 U.S.C. § 551(10), and includes “withholding of relief.” The definition of “agency action” includes “the equivalent or denial” of “relief.” “[A]gency action” also includes “failure to act,” and the Supreme Court has explained that “ ‘failure to act,’ is in our view properly understood as a failure to take an agency action — that is, a failure to take one of the agency actions (including their equivalents) earlier defined in § 551(13).” As noted, the definition of “agency action” in § 551(13) includes “relief.” The term “relief’ is defined in § 551(11)(A) to “include) ] the whole or a part of an agency ... (A) grant of ... remedy.” In accusing Doe of a crime without providing a public “forum in which [Doe could seek] to vindicate his rights,” namely a hearing or trial in a criminal court proceeding in which Doe could defend the serious charges against him, the Government failed to act and failed to provide relief or a remedy to Doe. It accused Doe of a crime without indicting him, without introducing evidence to prove the allegations, and without allowing Doe to challenge that evidence and present evidence of his own.

Ill

The district court dismissed Doe’s claims under Rule 12(b)(6), concluding they were facially barred by limitations, and we review de novo a dismissal for failure to state a claim. “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” In making this determination, we may consider “the complaint, its proper attachments, ‘documents incorporated into the complaint by reference, and matters of which a court may take judicial notice.’ ”

The district court observed that our court has “not addressed which statute of limitations period applies to a due process claim seeking expungement of an accusation,” and therefore “adopt[ed] the general statute of limitation provision of 28 U.S.C. § 2401(a), which provides that ‘every civil action commenced against the United States shall be barred unless the complaint is filed within six years after the right of action first accrues.’ ” Neither party has argued that this statute is inapplicable, and we will therefore assume, without deciding, that it governs all of Doe’s claims.

The district court concluded that § 2401(a) barred relief for the statements made in the Information, the plea agreement, and the plea hearing, each of which occurred in 2008. We will affirm that decision only if “it is evident from the plaintiffs pleadings that the action is barred and the pleadings fail to raise some basis for tolling or the like.”

A

Subject to limited exception, 28 U.S.C. § 2401(a) bars an action “unless the complaint is filed within six years after the right of action first accrues.” “[I]t is ‘the standard rule’ ” that a cause of action first accrues “when the plaintiff has a ‘complete and present cause of action.’ ” Stated another way, accrual occurs “when ‘the plaintiff can file suit and obtain relief.’ ”

Doe argues that he did not have a complete and present cause of action until he “was affirmatively denied a forum for vindication,” that is, until either the Government notified him that he would not be indicted for his alleged involvement in the kickback scheme or the Government would be barred by limitations from prosecuting Doe for his alleged criminal activity. However, we have held that a Fifth Amendment claim seeking expungement of district court records was cognizable even though prosecution of the party seeking expungement might yet occur. In In re Smith, we ordered expungement despite noting that “[o]ur opinion will in no way interfere with any legitimate investigation” of the party who obtained expungement, and in United States v. Briggs, we granted relief despite acknowledging the possibility of a later indictment. Vindication of “[t]he fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time and in a meaningful manner.’ ” We note that, although the foregoing statement was made in a different context, the present case exemplifies the need for a claim such as Doe’s to be brought at a meaningful time. The 2008 records that Doe seeks to expunge, have been public for many years, and the harm to Doe commenced in 2008.

In cases like the present one, the accrual of a right to relief is not deferred until it is clear that no indictment will or can ever issue. The fact that the Government might have rendered the “extraordinary remedy of expungement” unwarranted had it indicted Doe before he brought his claim does not affect the accrual of such a claim. The statute of limitations is not deferred until the power to indict is legally beyond the Government’s reach or the Government affirmatively states that it will not indict. Doe’s claim that the Fifth Amendment was violated when “government charges [were] made with no opportunity to defend” accrued when the Government purportedly accused him of criminal activity without indicting him.

B

Doe argues that the due process violation is a “continuing” one, and that the statute of limitations should be equitably tolled until the Government “afford[s] the opportunity to contest the ... criminal allegations against him.” Although courts may equitably toll § 2401(a), they do so “sparingly.” Discrete actions, even if “serial,” “are not entitled to the shelter of the continuing violation doctrine.”

Generally, in determining if equitable tolling is appropriate, we focus the inquiry “on what event, in fairness and logic, should have alerted the average lay person to act to protect his rights.” As we have explained above, when Doe was “named” as a criminal actor without being indicted, the harm occurred. Doe admits that there was “extensive publicity about the [Roe] guilty plea” and Doe asserts that he received calls from clients and colleagues “[immediately” after the plea proceedings “askfing] about the [G]overnment’s allegations that he had paid kickbacks to [Roe].” But even absent these effects, when “named,” Doe’s cause of action had accrued, and he could have initiated expungement proceedings. To the extent that Doe’s failure to initiate suit within the limitations period was the result of his mistaken belief that he could not file suit because his claim had not yet accrued, a mistake of this nature does not provide a valid basis for tolling. The continuing violation doctrine is inapplicable. The statute of limitations bars review of the statements made in 2008 as well as those in 2012.

IY

The district court’s dismissal of claims pertaining to the statements made by the prosecutor at the 2012 sentencing hearing can be affirmed on an additional basis. For purposes of our review of the dismissal of the Complaint, we accept as true the allegation that the 2012 statements “spawned renewed focus on [Doe] and resulted in additional inquiries from former clients and colleagues ... regarding whether he had been formally charged with [the] criminal offenses” described during the sentencing hearing and affected his ability to open bank accounts in his native country.

The Government provided information during the course of Roe’s sentencing hearing to explain the nature of the offense and the reason for its sentencing recommendation. The Government stated that Roe was “involve[d] in a very substantial kickback scheme with another consultant” to “distinguish[ ]” the sentence the Government was seeking from the sentences received by others involved in the scheme. The second statement was that the kickback scheme benefitted XYZ Corp. “in the sense that the consultants [sic] that [Roe] was working with was hired to engage in bid-rigging” to obtain business for XYZ Corp.

The references to a “consultant” during the sentencing hearing contained minimal identifying information. To the extent that Doe contends it was only in conjunction with the 2008 statements that the 2012 reference to a “consultant” made him identifiable, he seeks to expand the limitations period to include the 2008 statements. That is impermissible. We therefore consider only the 2012 references, standing alone, and conclude that references as nondescript as those to which Doe objects do not violate due process. Doe has not alleged a plausible due process violation.

We do not reach the question of whether, when balancing the governmental interests against the rights of the individual, the Government’s interest in referring to a “consultant” for purposes of providing information about Roe to the sentencing court was paramount. We have discussed in other decisions circumstances that might permit the provision of identifying information, such as the need to identify an unindicted coconspirator for purposes of Federal Rule of Evidence 801(d)(2)(E), and we have discussed measures that can be taken to shield the identity, and to protect the rights, of an unindicted cocon-spirator. At a minimum, protective measures should have been employed in the Roe prosecution in 2008. But because Doe delayed more than six years to seek redress, limitations bars his complaint at this late date regarding identifying information that has been publicly available since 2008. It is only when the identifying information available since 2008 is considered that Doe has a plausible claim that he was “named” in 2012. The references in 2012 were not, in and of themselves, identifying.

V

Although we ordinarily review the denial of leave to amend for abuse of discretion, if the denial was predicated solely on futility, as here, “we apply a de novo standard of review identical, in practice, to the standard used for reviewing a dismissal under Rule 12(b)(6).” Doe seeks leave “to articulate more specifically in an amended complaint the significance of sealed charges to his Due Process claim, and the role of any such charges in the equitable tolling of the limitations period.” As we stated previously, the possibility of a future criminal proceeding did not prevent Doe from filing suit and obtaining relief, and the continuing violation doctrine is inapplicable. Articulating more specific facts to support these claims would be futile.

For the foregoing reasons, we AFFIRM the district court’s judgment dismissing Doe’s case.

      . 28 U.S.C. § 2401(a) (providing, in pertinent part: "[ejxcept as provided by chapter 71 of title 41, every civil action commenced against the United States shall be barred unless the complaint is filed within six years after the right of action first accrues.”).

      . 28 U.S.C. § 1331 ("The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.”).

      . See, e.g., United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 63 L.Ed.2d 607 (1980) ("It is elementary that ‘[t]he United States, as sovereign, is immune from suit save as it consents to be sued ..., and the terms of its consent to be sued in any court define that court's jurisdiction to entertain the suit.' ”) (quoting United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 85 L.Ed. 1058 (1941)).

      . Id. (quoting United States v. King, 395 U.S. 1, 4, 89 S.Ct. 1501, 23 L.Ed.2d 52 (1969)).

      . Lane v. Pena, 518 U.S. 187, 192, 116 S.Ct. 2092, 135 L.Ed.2d 486 (1996) (citing United States v. Williams, 514 U.S. 527, 531, 115 S.Ct. 1611, 131 L.Ed.2d 608 (1995) (noting that in examining a purported waiver of sovereign immunity, the Court will "construfe] ambiguities in favor of immunity”)).

      . See Alabama-Coushatta Tribe of Tex. v. United States, 757 F.3d 484, 488 (5th Cir. 2014).

      . 514 F.2d 794, 795, 808 (5th Cir. 1975).

      . Id. at 808.

      . 5 U.S.C. § 702 provides:
      A person suffering legal wrong because of agency action, or adversely affected or 'aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof. An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer- or employee thereof acted or failed to act in an official capacity or under color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the United States or that the United States is an indispensable party. The United States may be named as a defendant in any such action, and a judgment or decree may be entered against the United States: Provided, That any mandatory or injunctive decree shall specify the Federal officer or officers (by name or by title), and their successors in office, personally responsible for compliance. Nothing herein (1) affects other limitations on judicial review or the power or duly of the court to dismiss any action or deny relief on any other appropriate legal or equitable ground; or (2) confers authority to grant relief if any other statute that grants consent to suit expressly or impliedly forbids the relief which is sought, (first emphasis added).

      . See Act of Oct. 21, 1976, Pub.L. No. 94-574, 90 Stat. 2721 (1976).

      . See Briggs, 514 F.2d at 797.

      . Id. at 797, 808 (stating that the petitioners were "seeking entry of an order expunging the references to them in Count One of the indictment” and ordering that the Clerk provide this relief).

      . See United States v. Holy Land Found. for Relief & Dev., 624 F.3d 685 (5th Cir. 2010); In re Smith, 656 F.2d 1101 (5th Cir. 1981).

      . Lewis v. Hunt, 492 F.3d 565, 570 (5th Cir. 2007).

      . See generally Qureshi v. United States, 600 F.3d 523, 525 (5th Cir. 2010) (“That the court loses jurisdiction over the litigation does not, however, deprive the district court of its inherent supervisory powers. After the termination of an action, a court may nevertheless 'consider collateral issues.' ”) (quoting Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 395, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990)).

      . See Alabama-Coushatta Tribe of Tex. v. United States, 757 F.3d 484, 487 (5th Cir. 2014).

      . 5 U.S.C. § 551(1)(A), (B).

      . 5 U.S.C. § 702.

      . Bowen v. Massachusetts, 487 U.S. 879, 891-92, 108 S.Ct. 2722, 101 L.Ed.2d 749 (1988).

      . See Trudeau v. FTC, 456 F.3d 178 (D.C. Cir. 2006) (holding that § 702’s waiver of sovereign immunity applies even when there has been no "agency action,” reasoning that the second sentence of that section “does not use either the term 'final agency action' or the term 'agency action'.... [n]or does the legislative history refer to either limitation” and concluding that declarations in the legislative history "make clear that no such limitations were intended”); Presbyterian Church (U.S.A.) v. United States, 870 F.2d 518, 525 (9th Cir. 1989) (holding "[w]e cannot agree with the [Immigration and Naturalization Service] that § 702's waiver of sovereign immunity is limited to instances of ‘agency action’ as technically defined in § 551(13)”; concluding that “[n]othing in the language of the amendment [to § 702] suggests that the waiver of sovereign immunity is limited to claims challenging conduct falling in the narrow definition of 'agency action’ ”; and holding that "on its face, the 1976 amendment to § 702 waives sovereign immunity in all actions seeking relief from official misconduct except for money damages”).

      . Alabama-Coushatta Tribe, 757 F.3d at 489 ("Section 702 contains two separate requirements for establishing a waiver of sovereign immunity. First the plaintiff must identify some 'agency action’ affecting him in a specific way.... This 'agency action’ for the purposes of § 702 is set forth by 5 U.S.C. § 551(13).” (citations omitted)).

      . 5 U.S.C. § 551(13); see id. § 701(b)(2) (providing that the term "agency action” "ha[s] the meaning[] given [it] by section 551”).

      . See Hearst Radio, Inc. v. FCC, 167 F.2d 225, 226-27 (D.C. Cir. 1948) (holding that the broad definition of "sanctions” in 5 U.S.C. § 551 did not include disparaging or false statements about the plaintiff in a Federal Communications Commission publication).

      . See Trudeau, 456 F.3d at 189 ("We have twice questioned 'the continued validity of the Hearst Radio decision.' ”) (quoting Impro Prods., Inc. v. Block, 722 F.2d 845, 849 (D.C. Cir. 1983) and citing Indus. Safety Equip. Ass’n, Inc. v. EPA, 837 F.2d 1115, 1118 (D.C. Cir. 1988)).

      . Trudeau, 456 F.3d at 189 (quoting Indus. Safety Equip., 837 F.2d at 1119)).

      . 5 U.S.C. § 551(10); see id. § 701(b)(2) (providing that the term "sanction” "ha[s] the meaning[] given [it] by section 551.”).

      . § 551(10)(B).

      . § 551(13).

      . Norton v. S. Utah Wilderness All., 542 U.S. 55, 62, 124 S.Ct. 2373, 159 L.Ed.2d 137 (2004).

      . 5 U.S.C. § 551(11)(C).

      . In re Smith, 656 F.2d 1101, 1106 (5th Cir. 1981) ("[N]o legitimate governmental interest is served by an official public smear of an individual when that individual has not been provided a forum in which to vindicate his rights.”).

      . Fed. R. Civ. P. 12(b)(6).

      . Haase v. Countrywide Home Loans, Inc., 748 F.3d 624, 630 (5th Cir. 2014).

      . Bosarge v. Miss. Bureau of Narcotics, 796 F.3d 435, 439 (5th Cir. 2015) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)).

      . Wolcott v. Sebelius, 635 F.3d 757, 763 (5th Cir. 2011) (quoting Dorsey v. Portfolio Equities, Inc., 540 F.3d 333, 338 (5th Cir. 2008)).

      . 28 U.S.C. § 2401(a).

      . Thompson v. Deutsche Bank Nat'l Tr. Co., 775 F.3d 298, 302 (5th Cir. 2014) (quoting Jones v. Alcoa, Inc., 339 F.3d 359, 366 (5th Cir. 2003)).

      . Wallace v. Kato, 549 U.S. 384, 388, 127 S.Ct. 1091, 166 L.Ed.2d 973 (2007) (quoting Bay Area Laundry & Dry Cleaning Pension Tr. Fund v. Ferbar Corp. of Cal., 522 U.S. 192, 201, 118 S.Ct. 542, 139 L.Ed.2d 553 (1997)).

      . Id. (quoting Bay Area Laundry, 522 U.S. at 201, 118 S.Ct. 542); see also Herr v. U.S. Forest Serv., 803 F.3d 809, 818 (6th Cir. 2015) ("The limitations period in § 2401(a) begins to run when a party’s ‘right of action first accrues' — ‘as soon as (but not before) the person challenging the agency action can institute and maintain a suit in court.’ ” (quoting Spannaus v. DOJ, 824 F.2d 52, 56 (D.C. Cir. 1987))).

      . 656 F.2d 1101, 1107 (5th Cir. 1981).

      . 514 F.2d 794, 799 (5th Cir. 1975) (noting that an acquittal of the alleged co-conspirators "does not bar later indictments against [the parties seeking relief]”).

      . Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) (quoting Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965)).

      . Sealed Appellant v. Sealed Appellee, 130 F.3d 695, 701 (5th Cir. 1997).

      . United States v. Int’l Harvester Co., 720 F.2d 418, 419 (5th Cir. 1983) ("We are persuaded that the trial court did not abuse its discretion [by refusing expungement] because the base principle of our expungement cases has not been violated, in that [the parly seeking relief] can defend the charge in an earlier filed and related case in which he is a charged defendant.”); cf. Powell v. Florida, 579 F.2d 324, 330 (5th Cir. 1978) (holding that a hearing that comports with due process can eliminate the availability of relief for an earlier due process violation); see generally Dailey v. Vought Aircraft Co., 141 F.3d 224, 232-33 (5th Cir. 1998) (Smith, J., dissenting) (explaining the "cure doctrine”).

      . Int’l Harvester Co., 720 F.2d at 420.

      . Clymore v. United States, 217 F.3d 370, 374 (5th Cir. 2000).

      . Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002).

        .Id. at 114, 122 S.Ct. 2061.

      . Frank v. Xerox Corp., 347 F.3d 130, 136 (5th Cir. 2003).

      . Messer v. Meno, 130 F.3d 130, 135 (5th Cir. 1997) (quoting Glass v. Petro-Tex Chem. Corp., 757 F.2d 1554, 1561 (5th Cir. 1985)).

      . Wion v. Quarterman, 567 F.3d 146, 149 (5th Cir. 2009) ("[A] mistaken interpretation of the law is not a 'rare and exceptional circumstance’ that justifies equitable tolling.” (quoting Fisher v. Johnson, 174 F.3d 710, 713 (5th Cir. 1999))).

        . See In re Smith, 656 F.2d 1101, 1106 (5th Cir. 1981); United States v. Briggs, 514 F.2d 794, 804 (5th Cir. 1975) (observing that "due process requirements vary according to particular circumstances” and that "[t]he role the sovereign plays and the nature of the governmental interest are weighed against the harm or loss resulting to the individual”).

      . See United States v. Holy Land Found. for Relief & Dev., 624 F.3d 685, 688, 690-91 (5th Cir. 2010); Smith, 656 F.2d at 1105-07; Briggs, 514 F.2d at 804-06.

      . Mayeaux v. La. Health Serv. & Indem. Co., 376 F.3d 420, 425 (5th Cir. 2004).

      . City of Clinton v. Pilgrim’s Pride Corp., 632 F.3d 148, 152 (5th Cir. 2010).