author: FLOYD, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Ernest Lee WILLIAMS, Jr., a/k/a Big Cat, Defendant-Appellant.
    No. 15-4217
    United States Court of Appeals, Fourth Circuit.
    Argued: September 23, 2016
    Decided: November 10, 2016

      ARGUED: Jaclyn Lee DiLauro, Office of the Federal Public Defender, Raleigh, North Carolina, for Appellant. Donald Russell Pender, Office of the United States Attorney, Raleigh, North Carolina, for Ap-pellee. ON BRIEF: Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon, Assistant Federal Public Defender, Office of the Federal Public Defender, Raleigh, North Carolina, for Appellant. Thomas G. Walker, United States Attorney, Jennifer P. May-Parker, Yvonne V. Watford-McKinney, Assistant United States Attorneys, Office of the United States Attorney, Raleigh, North Carolina, for Appellee.
    Before TRAXLER, SHEDD, and FLOYD, Circuit Judges.
   Vacated and remanded by published opinion. Judge FLOYD wrote the opinion, in which Judge TRAXLER and Judge SHEDD joined.

FLOYD, Circuit Judge:

Ernest Lee Williams, Jr., was charged with attempting to enter a bank with the intent to commit a felony affecting it, and a larceny, all in violation of 18 U.S.C. § 2113(a). Williams pleaded guilty to the charge, and was then sentenced under the robbery guideline, U.S.S.G § 2B3.1. Williams appeals his sentence, arguing that the robbery guideline is inapplicable in this case because his indictment contained no mention of the robbery'element of force and violence, intimidation, or ex-tprtion. We agree with Williams, and we therefore vacate his sentence and remand this matter for resentencing.

I.

On January 21, 2014, Williams approached a Southern Bank building (the “Bank”) in Rocky Mount, North Carolina, while wearing gloves and covering his face in a hood. Williams entered the Bank’s exterior doors into an anteroom, but before he could enter past the interior doors, a teller who believed she recognized Williams from a previous robbery locked both the interior and exterior doors. The teller then asked Williams through an intercom whether Williams had an account with the Bank, and Williams replied that he did, but that he had left his bank, card in his car. The teller unlocked the exterior doors, and instructed Williams to use the drive-up window. Williams returned to his car, but then drove off.

The police were notified and given a description of Williams’s vehicle. The police stopped Williams shortly thereafter, and in a show-up, Williams was identified by a Bank employee as the person who had tried to enter earlier. After being read his rights, Williams admitted to the police that—in need of money—he cased the Bank, and then wore gloves and covered part of his face. He had neither a gun nor a note with him when he tried to enter the Bank. Williams insisted that he had simply planned to tell the bank tellers to put the Bank’s money in his bag.

On August 27, 2014, a federal grand jury in the Eastern District of North Carolina indicted Williams for violating 18 U.S.C. § 2113(a). In relevant part, the grand jury charged Williams with “attempt[ing] to enter a bank ... with the intent to commit in such bank a felony affecting such bank, in violation of a statute of the United States, and a larceny, all in violation of Title 18, United States Code, Section 2113(a).” J.A. 7. On January 6, 2015, Williams pleaded guilty to the charge.

Violations of § 2113(a) are potentially-covered by four Sentencing Guideline sections—of relevance here are U.S.S.G. § 2B3.1 (Robbery) and § 2B2.1 (Burglary). Following the plea, the probation officer calculated Williams’s imprisonment range under the Guidelines by using the robbery guideline, U.S.S.G. § 2B3.1. Specifically, the probation officer calculated Williams’s imprisonment range at 37 to 46 months. This range derived from a total offense level of 19 and a criminal history category of III. Section 2B3.1 provided a base offense level of 20, which was increased by two levels because Williams’s crime targeted a financial institution. See U.S.S.G § 2B3.1(b)(l). The resulting offense level of 22 was then reduced by three levels for acceptance of responsibility, resulting in a final offense level of 19.

Williams objected to the application of U.S.S.G. § 2B3.1 to his offense. Williams contended that the indictment to which he pleaded guilty described an attempted burglary, not an attempted robbery, because it did not reference force or violence. Thus, as between the two relevant guidelines that could apply to a violation of § 2113(a)—the robbery guideline and the burglary guideline—Williams insisted that he should be sentenced under the latter. Williams reasoned that if the burglary guideline was used, his total offense level would be 10, which in this case would yield an imprisonment range of only 10 to 16 months.

The probation officer, meanwhile, contended that the robbery guideline applied in this case, because it—unlike the burglary guideline—contained an enhancement accounting for the fact that Williams targeted a financial institution.

On April 8, 2015, Williams’s sentencing hearing took place. After hearing both sides’ arguments, the district court was convinced that the robbery guideline was appropriate in this case because it addressed the targeting of financial institutions. The district court found Williams’s imprisonment range under the robbery guideline to be' 37 to 46 months, and sentenced him to a term of 38 months. This appeal followed.

II.

On appeal, Williams contends that his sentence should have been calculated using the burglary guideline, rather than the robbery guideline. We review challenges to the district court’s guideline selection de novo. United States v. Davis, 202 F.3d 212, 218 (4th Cir. 2000). We agree with Williams that the district court’s selection of the robbery guideline was erroneous, because only the burglary guideline applies here.

A.

The Sentencing Guidelines direct a sentencing court to “[djetermine the offense guideline section ... applicable to the offense of conviction.” U.S.S.G. § lB1.2(a). At times, however, “the offense of conviction ‘appears to fall under the express terms of more than one guideline[.]’” United States v. Boulware, 604 F.3d 832, 836 (4th Cir. 2010) (brackets omitted) (quoting United States v. Lambert, 994 F.2d 1088, 1092 (4th Cir. 1993)). In such cases, “the sentencing court must choose the guideline that is ‘most applicable’ by comparing the guideline texts with the charged misconduct, rather than the statute (which may outlaw a variety of conduct implicating several guidelines) or the actual conduct (which may include factors not elements of the indicted offense).” Id. (emphasis added) (internal quotation marks and brackets omitted) (quoting Lambert, 994 F.2d at 1092).

The charge that Williams pleaded guilty to plainly describes an attempted burglary, not an attempted robbery. Williams was charged with a violation of § 2113(a), which provides:

Whoever, by force and violence, or by intimidation, takes, or attempts to take, from the person or presence of another, or obtains or attempts to obtain by extortion any property or money or any other thing of value belonging to, or in the care, custody, control, management, or possession of, any bank ,or
Whoever enters or attempts to enter any bank ..., or any building used in whole or in part as a bank ..., with intent to commit in such bank ..., or part thereof, so used, any felony affecting such bank ,.. and in violation of any statute of the United States, or any larceny—
Shall be fined under this title or imprisoned not more than twenty years, or both,

18 U.S.C. § 2113(a), “As its text makes clear, subsection 2113(a) can be violated in two distinct ways: (1) bank robbery, which involves taking or attempting to take from a bank by force [and violence], intimidation, or extortion; and (2) bank burglary, which simply involves entry or attempted entry into a bank with the intent to commit a crime therein.” United States v. Al-meida, 710 F.3d 437, 440 (1st Cir. 2013) (emphasis-added).

Williams was indicted for attempting to enter a bank with an intent to commit a felony and larceny therein—i.e., a bank burglary. Moreover, his indictment failed to reference “the element of ‘force and violence, or [extortion or] intimidation’ which is required for conviction of bank robbery” under § 2113(a). United States v. Ketchum, 550 F.3d 363, 365 n.1 (4th Cir. 2008) (quoting United States v. Carter, 540 F.2d 753, 754 (4th Cir. 1976)). Therefore, when one compares the applicable burglary and robbery guidelines with the language of Williams’s indictment, it is clear that Williams should have been sentenced under the burglary guideline.

B.

In selecting the robbery guideline over the burglary guideline, the district court stressed that only the robbery guideline contained, an enhancement for the targeting of financial institutions (the “Bank Enhancement”) like the one Williams targeted. The government defends this selection by citing two unpublished Fourth Circuit cases that justified the use of the robbery guideline for a § 2113(a) violation on the basis of the Bank Enhancement: United States v. Sutton, 401 Fed.Appx. 845 (4th Cir. 2010) (per curiam), and United States v. Johnson, 68 Fed.Appx. 402 (4th Cir. 2003) (per curiam). Because those cases do not justify imposing a robbery guideline-based sentence on-a defendant that only pleaded guilty to an attempted burglary, the district, court’s selection was erroneous.

To begin, Johnson is distinguishable. Johnson held that where an indictment for violating § 2113(a) charges an attempt to obtain property from a bank via extortion, the robbery guideline is more appropriate than the extortion guideline because only the robbery guideline “permits an enhancement for attempting to obtain money from a bank.” 68 Fed.Appx. at 405. In Johnson, however, the indictment charged the elements of both robbery and extortion, id. and so the Bank Enhancement merely functioned as a sensible tie-breaker between the robbery and extortion guidelines. In contrast, only the burglary guideline applies in this case, because Williams’s indictment omits the robbery element of force and violence, intimidation, or extortion. As such, Johnson provides no sanction for the district court’s use of the inapplicable robbery guideline.

Sutton is distinguishable for similar reasons. As in Johnson, a panel of this Court in Sutton relied on the Bank Enhancement in selecting the robbery guideline over an alternative guideline (there, the burglary guideline) to sentence a defendant convicted of violating § 2113(a). Sutton, 401 Fed. Appx. at 847-48. But as in Johnson, the panel in Sutton was satisfied that the indictment at issue actually described “robberies.” Id. at 848. Because Williams’s indictment cannot be read to describe even an attempted robbery, the government’s reliance on Sutton here is misplaced.

C.

In this case, the precedent we find most instructive is this Court’s published decision in Boulware. There, the indictment charged the defendant with making a false statement to a bankruptcy court via nondisclosure of prior bankruptcies; however, the indictment did not charge that the nondisclosure was part of a plan to defraud creditors. Boulware, 604 F.3d at 835-36. This Court reasoned that the perjury guideline should apply, rather than the fraud guideline, because the perjury guideline best fit the offense described in the indictment. Id. at 836. It so held despite the objecting party’s observation that the fraud guideline contained a specific offense characteristic referencing bankruptcy proceedings, while the perjury guideline lacked any analogous provision. Id. This Court dismissed that observation as being “of little consequence,” reasoning that the fraud guideline was unfitting where “the gravamen of the charge was that [the defendant] interfered with the bankruptcy court’s administration of justice, not that she defrauded any creditors.” Id.

Likewise, the robbery guideline’s use of the Bank Enhancement is of little consequence here, because the gravamen of Williams’s charge was that he attempted to commit a burglary, not a robbery. Simply put, where an indictment omits an element of an offense, the guideline corresponding to that offense is inapplicable, even if the alternative guideline’s provisions do not account for certain details that the indictment charges.

Nonetheless, we do not consider whether the absence of a potentially relevant provision (here, the Bank Enhancement) under the correct guideline justifies a variance at sentencing. We leave that issue for the district court to address on remand in the first instance.

III.

For the foregoing reasons, we vacate Williams’s sentence, and remand this case to the district court for resentencing under the burglary guideline.

VACATED AND REMANDED

      , A violation of § 2113(a) may also implicate U.S.S.G. § 2B3.2 (Extortion by Force or Threat of Injury or Serious Damage) or U.S.S.G § 2B1.1 (Larceny, Embezzlement, and Other Forms of Theft), See U.S.S.G. App’x A. Both parties, however, agree that neither guideline applies in this case.

      . Cf. Almeida, 710 F.3d at 439-43 (vacating a § 2113(a)—defendant's sentence under the robbery guideline, because the district court did not exclusively consider the indictment language that "tracked that of § 2113(a)’s bank burglary prong,” but instead improperly considered trial testimony "which described ’ "conduct that amounted to bank robbery, he., taking from a bank by force, violence, or intimidation”).

      . We acknowledge, however, that the panel in Sutton may have incorrectly characterized the indictment at issue as describing "robberies.” In the paraphrased version of the indictment offered in the Sutton opinion, there was no reference to the robbery element of force and violence, intimidation, or extortion. See 401 Fed.Appx, at 847 ("[T]he indictment charged Fields and his codefendants with breaking into and stealing United States currency from automated teller machines containing 'money in the care, custody!,] and control of Lumbee Guaranty Bank, a bank whose deposits were then insured by the Federal Deposit Insurance Corporation,’ in violation of 18 U.S.C. § 2113(a).”). To the extent that the unpublished Sutton opinion implies that the element of force and violence, intimidation, or extortion is unnecessary to describe a robbery, we expressly reject that position, for it is contrary to well-settled law. See Ketchum, 550 F.3d at 365 n.1; Carter, 540 F.2d at 754; see also Almeida, 710 F.3d at 440-41.


source: Caselaw Access Project

author: EDWARD C. PRADO, Circuit Judge:

license: Public Domain

text:
    NORANDA ALUMINA, L.L.C., Petitioner, v. Thomas E. PEREZ, Secretary, Department of Labor; Federal Mine Safety & Health Review Commission, Respondents.
    No. 16-60049
    United States Court of Appeals, Fifth Circuit.
    Filed November 8, 2016

      Avidan Meyerstein, Jackson Lewis P.C., Henry Chajet, Roy Brian Hendrix, Esq., Husch Blackwell, L.L.P., Washington, DC, Jillian R. Orticelli, Esq., Jackson Lewis, P.C., Hartford, CT, for Petitioner.
    Elizabeth Johnston, Walter Christian Schumann, Esq., Counsel, Walter Christian Schumann, Esq., Counsel, U.S. Department of Labor, Office of the Solicitor, Mine Safety & Health Division, Arlington, VA, Michael A. McCord, John Thomas Sullivan, Federal Mine Safety & • Health Review Commission, Office of General Counsel, Washington, DC, for Respondent.
    Before CLEMENT, PRADO, and OWEN, Circuit Judges.
   EDWARD C. PRADO, Circuit Judge:

This is a petition for review of an order of the Federal Mine Safety & Health Review ■ Commission (“FMSHRC” or “the Commission”) denying a motion to reopen. Because the Commission applied its precedents arbitrarily in denying this motion to reopen, we GRANT the petition for review and REMAND for further proceedings.

I. BACKGROUND

Noranda Alumina, LLC (“Noranda”) operates an alumina refinery near Gramercy, Louisiana. In March or April 2014, a contractor detected mercury in one part of the Gramercy facility. That same month the Mine Safety and Health Administration (“MSHA”) inspected the facility and issued two citations to Noranda for failing to test for mercury. See 30 C.F.R. §§ 47.21, 56.5002. Noranda requested a “safety and health conference” with MSHA pursuant to 30 C.F.R. § 100.6. This conference was held on June 12, 2014, but Noranda failed to. persuade MSHA to withdraw its citar tions.

In July 2014, MSHA assessed penalties in the amount of $38,573 for the citations. Notice of this assessment arrived at No-randa’s Gramercy facility on July 18, 2014. On that same day, the facility’s Environmental Health and Safety Manager, Louis DeRose, unexpectedly quit. DeRose had been responsible for dealing with MSHA. In DeRose’s absence, the assessment came to the attention of Environmental Manager Bud Preston, who was generally unfamiliar with MSHA and the citations at issue. Preston brought the assessment to then-Plant Manager Dave Hamling. Believing it was a bill, Preston asked Hamling whether Noranda should pay it. Hamling apparently assumed that counsel had reviewed the citations and had advised paying the assessment. Hamling therefore approved the payment on July 23, 2014. In August 2014, Hamling also left the company,

On September .23, 2014, Noranda’s upper management and counsel realized that the assessment had been paid. Noranda apparently had intended to contest the citations rather than pay the assessment. By this time, the thirty-day deadline to contest MSHA penalty assessments had passed. See 30 U.S.C. § 815(a) (“[T]he operator has 30 days within which to notify the Secretary [of Labor] that he wishes to contest the citation or proposed assessment of penalty.”). The citation and penalty had therefore become “a final order of the Commission.” Id.

Noranda filed a motion to reopen on October 31, 2014, seeking to adjudicate the citation and penalty on the merits. Noran-da claimed that it had intended to contest the citations and that its prior payment was mistakenly approved. The Secretary of Labor made two arguments in opposition to Noranda’s motion to reopen. First, the Secretary argued that Noranda failed to “provide an explanation that constitutes adequate or good cause for its failure” to timely contest the assessment. In .connection with this argument, the Secretary stated: “The Commission and the Courts have repeatedly held that the fact that a party had inadequate or unreliable internal procedures does not constitute an adequate excuse under Rule 60(b)(1).” Second, the Secretary argued, Noranda did “not identify facts that, if proven on reopening, would constitute a meritorious defense.”

On December 18, 2015, the Commission denied Noranda’s motion. Because failure to timely contest an assessment after the departure of an employee constituted “an inadequate or unreliable internal processing system,” the Commission held that No-randa “ha[d] not established grounds for reopening the assessment.” This petition for review followed.

II. JURISDICTION AND STANDARD OF REVIEW

A party aggrieved by an order of the Commission may seek review in either the Court of Appeals for the District of Columbia or the “court of appeals for the circuit in which the [safety] violation is alleged to have occurred.” 30 U.S.C. § 816(a)(1); see also Pendley v. Fed. Mine Safety & Health Review Comm’n, 601 F.3d 417, 422 (6th Cir. 2010). That court then has “exclusive jurisdiction” over the case. 30 U.S.C. § 816(a)(1). Because Noranda’s alleged violations occurred in Louisiana, this Court has jurisdiction.

Abuse of discretion is the appropriate standard of review in this case. Courts review FMSHRC orders under the “Mine [Safety & Health] Act and general administrative law principles.” Pendley, 601 F.3d at 422. The Administrative Procedure Act does not generally apply. 30 U.S.C. § 956; see also Pendley, 601 F.3d at 422. In both judicial and administrative contexts, courts review denials of motions to reopen for abuse of discretion. See Diaz v. Stephens, 731 F.3d 370, 374 (5th Cir. 2013) (reviewing denial of Rule 60(b) motion for abuse of discretion); Lone Mountain Processing, Inc. v. Sec’y of Labor, 709 F.3d 1161, 1163 (D.C. Cir. 2013) (reviewing FMSHRC denial of motion to reopen for abuse of discretion).

Our review of motions to reopen in the immigration context is instructive. There we apply “a highly deferential abuse-of-discretion standard.” Zhao v. Gonzales, 404 F.3d 295, 303 (5th Cir. 2005). We will affirm the decision of the Board of Immigration Appeals (“BIA”) “as long as it is not capricious, without foundation in the evidence, or otherwise so irrational that it is arbitrary rather than the result of any perceptible rational approach.” Gomez-Palacios v. Holder, 560 F.3d 354, 358 (5th Cir. 2009). We have made clear, however, that “[t]he BIA may not apply its precedents arbitrarily.” Rodriguez-Manzano v. Holder, 666 F.3d 948, 954 (5th Cir. 2012). If an agency does “depart from its settled policies,” it must “offer[] a reasoned explanation” for such departure. Wellington v. INS, 108 F.3d 631, 637 (5th Cir. 1997) (citing INS v. Yang, 519 U.S. 26, 32, 117 S.Ct. 350, 136 L.Ed.2d 288 (1996)). As the First Circuit has held, “administrative agencies must apply the same basic rules to all similarly situated supplicants. An agency canno,t merely .flit serendipitously from case to case, like a bee buzzing from flower to flower, making up the rules as it goes along.” Henry v. INS, 74 F.3d 1, 6 (1st Cir. 1996).

III. DISCUSSION

The Commission denied Noranda’s motion to reopen because its failure to timely contest the penalty “resulted] from an inadequate or unreliable internal processing system.” As explained below, the Commission has not applied its “internal processing system” rule consistently. Thus, we find that the Commission abused its discretion by arbitrarily denying Noran-da’s motion to reopen.

A. The Mine Safety & Health Act

We begin by discussing the relevant agency structures and procedures. The Federal Mine Safety & Health Act of 1977 (“Mine Act”), 30 U.S.C. § 801 et seq., distributes policymaking and adjudicatory functions to two separate agencies. Under this framework, “MSHA plays the roles of police and prosecutor, and the [FMSHRC] plays the role of judge.” Lone Mountain, 709 F.3d at 1162. MSHA, under the aegis of the Department of Labor, regulates mine safety standards, inspects mining operations, and issues citations and penalties for regulatory violations. 29 U.S.C. § 557a; 30 U.S.C. §§ 813-14. FMSHRC administrative law judges (“ALJs”) are responsible for trial-level review of MSHA citations and penalties, see 29 C.F.R. § 2700.50-.69, while the Commission itself primarily conducts appellate review of ALJ orders, see 29 C.F.R. § 2700.70-79. The Commission has authority to prescribe its own rules of procedure. 30 U.S.C. § 823(d)(2). Except where otherwise specified in the Mine Act, agency regulations, or APA, the Commission has chosen to “be guided so far as practicable by the Federal Rules of Civil Procedure and the Federal Rules of Appellate Procedure.” 29 C.F.R. § 2700.1(b).

MSHA may cite mine operators for violations of the Mine Act and applicable safety regulations. 30 U.S.C. § 814(a). By statute, - a cited mine operator has thirty days to notify the Secretary that the operator “wishes to contest the citation.” 30 U.S.C. § 815(a). Once the citation is issued, MSHA proposes a penalty assessment. 30 C.F.R. § 100.3. The operator then has thirty days to challenge this proposed penalty. 30 C.F.R. § 100.7(b)(2). An operator may challenge a penalty assessment without challenging the underlying citation. 29 C.F.R. § 2700.21(b). In fact, MSHA and the Commission discourage challenges to citations as “a needless use of ... resources” unless an early hearing is warranted. Marfork Coal Co., 28 FMSHRC 842, 843 (2006) (quoting Secretary of Labor’s brief).

Failure to challenge the penalty assessment within thirty days of receipt renders the citation and penalty “a final order of the Commission and not subject to review by any court or agency.” 30 U.S.C. § 815(a). Drawing on Federal Rule of Procedure 60(b), however, the Commission permits mine operators to move to reopen final orders. Jim Walter Res., Inc., 15 FMSHRC 782, 789 (1993) (“[W]e hold that a final order of the Commission may be reopened by the Commission in appropriate circumstances pursuant to Rule 60(b).”). As the D.C. Circuit explained in Lone Mountain:

Over the years, mine operators have failed to respond to MSHA citations and proposed penalty assessments within the thirty-day windows prescribed by 30 U.S.C. § 815(a) and subsequently have sought the Commission’s lenience by filing motions to reopen. In turn, the Commission has developed a body of precedent regarding how to treat such motions based on the facts in each case.

709 F.3d at 1163. Recognizing that “default is a harsh remedy,” the Commission reopens final orders where “the defaulting party can make a showing of adequate or good cause.” Martin Marietta Aggregates, 22 FMSHRC 1178, 1179 (2000). “In accordance with Rule 60(b)(1),” the Commission may reopen a case “on the basis of inadvertence, mistake, or excusable neglect” by the defaulting party. Id. The case may proceed on the merits before an ALJ upon reopening. See Lee Mech. Contractors, Inc., 38 FMSHRC 44, 45 (2016).

B. The Commission’s Abuse of Discretion

Noranda primarily argues that the Commission abused its discretion by ignoring its own precedent. This precedent, according to Noranda, requires reopening a final order when an operator demonstrates its intent to contest the order. In addition, Noranda argues that it did have an effective internal processing system, contrary to the Commission’s finding. Noranda also points to cases where the Commission granted a motion to reopen despite an inadequate internal processing system. In response, the Secretary of Labor distinguishes factually similar cases cited by Noranda and offers additional justifications for the Commission’s decision. Both parties also discuss whether Rule 60(b) requires reopening.

As an initial matter, this Court may only review reasoning articulated by the agency at the time of its decision. See, e.g., Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168, 83 S.Ct. 239, 9 L.Ed.2d 207 (1962) (“[C]ourts may not accept appellate counsel’s post hoc rationalizations for agency action — ”). There may be factors that' support a denial of Noran-da’s motion to reopen, such as the Secretary’s opposition to the motion, and Noran-da’s delay in filing its motion. But these post hoe rationalizations cannot retroactively justify the agency’s decision. Furthermore, we will not review the Commission’s decision against our own Rule 60(b) jurisprudence. Because the Commission is “guided” by the Federal Rules of Civil Procedure only “so far as practicable,” 29 C.F.R. § 2700.1(b), we will defer to the agency’s own jurisprudence on procedural matters.

In Lone Mountain, the D.C. Circuit addressed an FMSHRC denial of a motion to reopen on one of the grounds advocated by Noranda—that the Commission abused its discretion by ignoring its own precedent without explanation. 709 F.3d at 1163. There too, the Commission denied an operator’s motion to reopen in part because the operator’s “failure to contest a proposed assessment resulted] from an inadequate or unreliable internal processing system.” Lone Mountain Processing, Inc., 33 FMSHRC 2373, 2375 (2011). Lone Mountain had timely contested the underlying citation, but not the penalty assessment. Lone Mountain, 709 F.3d at 1163. Yet in previous cases, Lone Mountain argued, the Commission “repeatedly stated that the timely challenge to a citation gives a ‘clear’ indication” of intent to contest the penalty. Id. (quoting Oldcastle Stone Prods., 31 FMSHRC 1103, 1104 (2009)). In remanding for reconsideration, the court reasoned that the Commission failed either to distinguish Lone Mountain’s case from prior decisions or to explain why departure from precedent was necessary. Id. at 1164. Had the Commission considered its prior orders, “it would have explained why they do not apply in Lone Mountain’s case. But despite their obvious relevance, the' Commission failed even to mention or discuss, let alone distinguish, those orders,” Id. Thus, the court found the Commission’s order arbitrary and capricious. Id.

Like Lone Mountain, Noranda pointed the Commission to factually similar cases in which the Commission reopened a final order. In Kaiser Cement Corp., 23 FMSHRC 374 (2001), for example, the Commission granted a motion to reopen even though the operator’s failure to timely contest the penalty was due to “internal mismanagement.” Id. at 375. The operator in Kaiser Cement experienced a “miscom-munieation during a transition period” when the employee responsible for handling MSHA citations left the company. Id. An employee unfamiliar with MSHA’s contest procedures inadvertently paid the penalty even though the operator-had already filed a notice of contest. Id. Likewise, in Doe Run Co., 21 FMSHRC 1183 (1999), the operator mistakenly paid the penalty “because the employee normally responsible for the initial review of any proposed assessment, the safety administrator, was out of the country.” Id. at 1184. In both cases, the Commission found that the operator had intended to contest the penalty, and that its payment was inadvertent or mistaken. Id.; Kaiser Cement, 23 FMSHRC at 375. Thus, the Commission granted the motion to reopen in each case.

The Commission failed to explain why it did not follow Kaiser Cement or Doe Run. Of course, the Commission is not bound by its. precedent. See Atchison, Topeka & Santa Fe Ry. Co. v. Wichita Bd. of Trade, 412 U.S. 800, 808, 93 S.Ct. 2367, 37 L.Ed.2d 350 (1973). Nor must it distinguish every prior decision that features somewhat similar facts. Lone Mountain, 709 F.3d at 1164. In particular, an agency decision may “stand without elaborate explanation where. distinctions between the case under review and the asserted precedent are so plain that no inconsistency appears.” Id. (quoting Bush-Quayle ’92 Primary Comm., Inc., v. Fed. Election Comm’n, 104 F.3d 448, 454 (D.C. Cir. 1997)).

But an agency “may not apply its precedents arbitrarily.” Rodriguez-Manzano, 666 F.3d at 954. In this case, the FMSHRC articulated one principle: “where a failure to contest a proposed assessment results from an inadequate' or unreliable internal processing system, the operator has not established grounds for reopening the assessment.” Although stated like a rule, it is not so applied. The Commission routinely grants motions to reopen where the operator’s internal processing system is at fault. Kaiser Cement and Doe Run are older examples, perhaps predating the Commission’s internal processing system rule. But more recently, in Warrior Coal, LLC, 36 FMSHRC 870 (2014), the operator blamed its delay in contesting a penalty on “an unknown error in its internal mail delivery.” Id. at 871. The Commission granted the motion without mentioning the internal processing system rule. Id. In another case involving Pinnacle Mining, the operator failed to timely contest a penalty “because its safety manager, who [was] responsible for handling proposed assessments, was on Christmas vacation when the proposed assessment was delivered.” Pinnacle Mining Co., 38 FMSHRC 422, 422-23 (2016). Again, the Commission granted the motion to reopen without reference to the internal processing system rule. Id. at 423. In another case decided shortly after Noranda (though not cited by the petitioner), the Commission reopened a proposed penalty even though the operator’s failure to timely challenge the assessment was due to an “internal processing error.” C.R. Briggs, 37 FMSHRC 2764, 2756 (2015). The Commission did not explain why it reopened the case despite this error.

Perhaps these cases are distinguishable from Noranda’s. The Secretary offers two distinctions, which we address in turn. First, Noranda did not formally contest the citations, as Kaiser Cement and Doe Run did. As the D.C. Circuit noted in Lone Mountain, contesting a citation indicates an operator’s intent to contest the penalty. 709 F.3d at 1163. But since deciding Kaiser Cement and Doe Run, the Commission has come to discourage citation contests. See Marfork Coal, 28 FMSHRC at 843. Moreover, Noranda did request a “safety and health conference” to try to persuade MSHA to withdraw the citations. This request could have indicated Noranda’s intent to contest the penalty. Second, the Secretary opposed Noranda’s motion whereas it did not oppose Warrior Coal’s or C.R. Briggs’s. Warrior Coal, 36 FMSHRC at 871; C.R. Briggs, 37 FMSHRC at 2755. But the Secretary did oppose Pinnacle Mining’s motion in 2016. Pinnacle Mining, 38 FMSHRC at 423. Thus, Noranda’s case is not obviously distinguishable from these prior precedents.

Even if these cases are obviously distinguishable based on some unspoken factor, the Commission failed to “apply the same basic rule[ ] to all similarly situated supplicants.” Henry, 74 F.3d at 6. In this case, the Commission applied a rule that, on its face, admits of no exception. Yet Kaiser Cement, Doe Run, Warrior Coal, and Pinnacle Mining are all exceptions. Indeed, the Secretary does not even argue that the operator’s default in those cases resulted from something other than an inadequate internal processing system. But the Commission did not cite its internal processing system rule in those cases, let alone explain why it did not apply. Based on our review of the Commission’s orders, an inadequate internal processing system is not why the Commission denies a motion to reopen. Instead, it is merely a reason the Commission cites when it chooses to deny a motion to reopen. When the Commission chooses to grant a motion to reopen, it ignores this rule.

Other than relying on an inconsistently applied rule, the Commission did not describe the factors that motivated its disposition in this case. Its decision-making process was therefore “arbitrary rather than the result of any perceptible rational approach.” Gomez-Palacios, 660 F.3d at 358.

On remand, the Commission may very well deny Noranda’s motion to reopen. “[B]ut it must do so with more clarity than it showed in the first instance.” Lone Mountain, 709 F.3d at 1164. In particular, the Commission should describe the factors it uses in deciding motions to reopen. And if the Commission again departs from factually similar precedent, it should justify this departure.

IV. CONCLUSION

For the foregoing reasons, we GRANT the petition for review and REMAND for further proceedings.

      . Notably, the Commission has not promulgated any regulations concerning motions to reopen, although it has provided nonbinding guidance on its website. See Fed. Mine Safety & Health Review Comm'n, Requests to Reopen, http://www.fmshrc.gov/content/ requests-reopen.

      . The oldest case cited by the Commission in support of this rule is Pinnacle Mining Co., 30 FMSHRC 1061 (2008), decided seven years after Kaiser Cement and nine years after Doe Run.


author: HAYNES, Circuit Judge:

text:
    ONEBEACON INSURANCE COMPANY, Plaintiff-Appellant Cross-Appellee v. T. WADE WELCH & ASSOCIATES; T. Wade Welch, Defendants-Appellees Cross-Appellants DISH Network Corporation, Defendant-Appellee
    No. 15-20402
    United States Court of Appeals, Fifth Circuit.
    Filed November 14, 2016

      Peter Michael Jung, Carla Cash Crap-ster, Michael Keeley, Strasburger & Price, L.L.P., Dallas, .TX, for Plaintiff-Appellant Cross-Appellee. ■
    David L. Miller, Diane Freeman Burgess, Miller, Scamardi & Carrabba, P.C., Houston, TX, T. Wade Welch, Esq., T. Wade Welch & Associates, Missouri City, TX, for Defendants-Appellees Cross-Appellants,'
    . Richard Ralph Patch, Esq., Rees F. -Morgan, Coblentz, Patch, Duffy & Bass, L.L.P., San Francisco, CA, J. James Cooper, Esq., Reed Smith, L.L.P., Houston, TX, Allyson Newton Ho, Morgan, Lewis & Bocldus, L.L.P., Dallas, TX, for Defendant-Appellee.
    Before BENAVIDES, HAYNES and GRAVES, Circuit Judges.
   HAYNES, Circuit Judge:

After a, jury verdict against it, OneBea-con Insurance Company, (“OneBeacon”) appeals the judgment, including the district court’s denials of OneBeacon’s motion for judgment as a matter of law, renewed motion for judgment as a matter of law, and motion for new trial. In addition, T. Wade Welch &. Associates (the ‘Welch Firm”) and T. Wade Welch (“Welch”) cross-appeal the district court’s denial of its motion for entry of judgment.

Finding no error, we AFFIRM.

I.

A.

Since the mid-1990s, the Welch Firm has represented DISH Network Corporation (“DISH”) in over 400 different matters. The Welch Firm eventually became DISH’s -go-to litigation counsel, handling the majority of DISH’s litigation, except for patent cases and small-claims cases. In or around 2003, DISH hired the Welch Firm to defend it in a suit brought against DISH by Russian Media Group (“RMG”) (the “RMG Litigation”) in federal court in Connecticut. Ross,Wooten served as the first chair attorney from the Welch Firm on the case.

In 2005, RMG served discovery on DISH. Wooten did not respond to RMG’s discovery requests within the time limit, believing that he and RMG’s counsel, David Golub, had orally agreed to extend the response deadline. Golub later moved to compel Wooten to respond to the pending discovery requests. Wooten did not respond to the motion. On February 23, 2006, the Connecticut district court entered a discovery order (the “discovery order”) requiring DISH to respond to all of RMG’s requests by March 16, 2006.

Wooten responded to RMG’s requests for admissions and interrogatories and soon thereafter produced roughly 5,000 pages of documents to RMG. Wooten did not, however, have DISH verify the responses at this time. Further, a number of Wooten’s responses to interrogatories promised a later supplement that would identify, by Bates number, applicable documents relevant to the interrogatory. Wooten believed that he had complied with his discovery obligations at that time.

On November 20, 2006, Welch, on behalf of the Welch Firm, completed an application for insurance with Westport Insurance Company (“Westport”). The application asked the following question:

After inquiry of each lawyer, is the Applicant, its predecessor firms or any lawyer proposed for this insurance aware of any fact or circumstance, act, error, omission or personal injury which might be expected to be the basis of a claim or suit for lawyers ... professional liability?

Welch responded “No.” The application also asked, “[i]n the past five years, has any action been taken against any lawyer proposed for this insurance for disbarment, suspension, reprimand, or other disciplinary action?” Welch responded “No.” The application also stated, “All claims will be excluded that result from any acts, circumstances or situations known prior to the inception of coverage being applied for, that could reasonably be expected to result in a claim.”

On December 20, 2006, Welch represented to OneBeacon that the statements made in the Westport application would be deemed made to OneBeacon and that all statements were true as of December 20, 2006. He also stated that he was “not aware of any claims against the Insured or circumstances, Incidents, disputes or fee problems that may give rise to a claim against the Insured, other than those disclosed in the application.”

OneBeacon issued a claims-made malpractice policy to the Welch Firm for December 20, 2006, to December 20, 2007 (the “2006-07 policy”). The 2006-07 policy had a retroactive date of January 4, 1995, for which the Welch Firm paid additional premiums. The retroactive date set the earliest possible date upon which a wrongful act or omission or malpractice could occur and still be covered under the policy, so long as the claim was made and reported during the policy term (subject to the policy’s terms and exclusions).

The policy excluded certain claims, including, in relevant part:
A. any claim arising out of a wrongful act occurring prior to the policy period if, prior to the effective date of the first Lawyers’ Professional Liability Insur-anee Policy issued by us to the named insured and continuously renewed and maintained in effect to the inception of this policy period:
[...]
2. you had a reasonable basis to believe that you had committed a wrongful act, violated a disciplinary rule, or engaged in professional misconduct; [or]
3. you could foresee that a claim would be made against you....

The policy defined wrongful act as “any actual or alleged act, error, omission or breach of duty arising out of the rendering or the failure to render professional legal services.” The definition included “personal injury arising out of [the insured’s] conduct relating to the delivery of professional legal services.”

Two months after the effective date of the 2006-07 policy, Golub filed a motion seeking sanctions (the “Sanctions Motion”) for Wooten’s failure to comply with the court’s February 2006 discovery order, citing his “blatant failure to respond fully and properly to [RMG’s] discovery requests.” Golub identified three deficiencies in Wooten’s discovery responses: his failure to provide verifications, Bates number references to documents that responded to certain interrogatories, and certain- categories of additional documents. He requested “death penalty” sanctions against DISH, which would deem ■ RMG’s three primary claims established and preclude DISH from challenging RMG’s damages evidence.

Wooten later testified that at this point he still believed he could work the discovery dispute out and avoid sanctions. Indeed, there was evidence presented at trial that had Wooten addressed the deficiencies or attempted to resolve the dispute with Golub, he -might have avoided sanctions altogether and would have avoided severe sanctions: Golub testified that death penalty sanctions were “unheard of in Connecticut” and that he believed “there was never going to be sanctions issued here.” The magistrate judge held a hearing on the motion for sanctions on July 12, 2007, and the same day, entered an order granting RMG’s . motion for death penalty sanctions, (the “Sanctions Order”). Wooten did not tell DISH or the Welch Firm about the Sanctions Order.

On December 6, 2007, Welch completed a renewal application for malpractice insurance with OneBeacon, this time using OneBeacon’s application form. The application asked:

Have you or any member of your firm ever been disbarred, refused admission to practice law, suspended, reprimanded, sanctioned, fined, placed on probation, held in contempt or the subject of any disciplinary complaint, grievance or action by any court, administrative agency or regulatory body?
[•••]
Are you or any members or employees of your firm aware of any fact, circumstance, or situation which might reasonably be expected to give rise to a claim?

Welch answered “No” to both questions. OneBeacon renewed the policy for the period December 20, 2007, through December 20, 2008 (the “2007-08 policy”). The 2007-08 policy had the same prior-knowledge exclusion as the 2006-07 policy.

Wooten filed objections to the magistrate judge’s order, but the district court affirmed the Sanctions Order in February 2008. Welch first learned of the order from another associate at the firm; Welch then informed DISH’s general counsel of the order. Welch reached out to Wooten for information regarding the order, but Wooten resigned from the firm. DISH replaced the Welch Firm with another firm in August 2008, which failed to overturn the Sanctions Order.

In April 2008, the Welch Firm advised OneBeacon that DISH had a potential malpractice claim relating to the RMG Litigation. OneBeacon responded with a reservation of rights and a request to be notified if the Welch Firm received a formal demand from DISH. On June 4, 2008, the Welch Firm informed OneBeacon that RMG was demanding in excess of $105,800,000 to settle the underlying lawsuit. OneBeacon began formally treating the matter as a claim at this point but had not yet begun an investigation. In December 2010, DISH requested that OneBeacon make its policy limits available for a potential settlement with RMG.

OneBeacon later sent Welch an “investigative” reservation-of-rights letter, which was followed by a supplemental reservation-of-rights letter. The prior-knowledge exclusion was identified as a potential policy defense in the latter letter. Counsel for the Welch Firm sent OneBeacon a report concluding that DISH’s claim against the Welch Firm was “a potentially high exposure claim” and that ‘Wooten clearly committed malpractice.” One estimate of RMG’s damages exceeded $25 million.

On June 14, 2011, DISH offered to settle and release the Welch Firm in exchange for OneBeacon’s policy limits. DISH did not offer to release Wooten in this letter. Counsel for the Welch Firm wrote One-Beacon on June 27, 2011, formally requesting that OneBeacon settle DISH’s claims against the Welch Firm for an amount within the Welch Firm’s policy limits. One-Beacon responded on August 5, 2011, declined DISH’s settlement offer, and noted that “it [was] uncertain whether any damages were actually caused by [the Welch Firm].”

OneBeacon then rescinded the Welch Firm’s insurance policy, and on August 22, 2011, filed the instant suit for declaratory judgment, seeking to rescind the policy or obtain a declaration that the prior-knowledge exclusion barred coverage. The Welch Firm counterclaimed, asserting violations of the common law Stowers duty and the Texas Insurance Code. DISH intervened. Meanwhile, DISH sent a formal arbitration demand to the Welch Firm, and ultimately filed a demand in arbitration.

The parties filed motions for summary judgment in early 2014, including cross-motions for summary judgment with respect to the policy’s prior-knowledge exclusion. The trial court held that the prior-knowledge exclusion in the OneBeacon policy could not be read in isolation, without considering the context of the policy as a whole, because to do so would render the policy’s retroactive coverage illusory. The district court adopted the Welch Firm’s construction of the prior-knowledge exclusion: whether a reasonable attorney with Wooten’s subjective knowledge on December 20, 2006, could have reasonably expected his or her acts, errors and omissions to lead to a malpractice claim by DISH. Concluding that whether the claim was foreseeable was an appropriate question for the jury, the court denied the parties’ motions for summary judgment. During the pretrial conference, the district court concluded that DISH’s June 14 letter to One-Beacon offering to settle the case was a valid Stmvers demand.

B.

The case was tried to a jury. After the Welch Firm rested, OneBeaeon moved for judgment as a matter of law, which the court denied. The jury returned a verdict in favor of DISH and the Welch Firm on every question. Specifically, the jury found that OneBeaeon had not shown that a reasonable attorney, given Wooten’s knowledge in December 2006, could have reasonably expected his actions to result in a malpractice claim; that OneBeaeon had not proved its claim for rescission; that One-Beaeon knowingly violated Chapter 541 of the Texas Insurance Code; and that One-Beacon was grossly negligent in violating its Stowers duties. The jury verdict provided for damages to the Welch Firm equal to the malpractice judgment (approximately $12.5 million) plus $8 million in past and future lost profits, $5 million in exemplary damages, and $7.5 million in additional damages for OneBeacon’s knowing violation of the Texas Insurance Code. The district court partially remitted the jury’s award, requiring the Welch Firm to elect between the $5 million award for gross negligence and the $7.5 million for the knowing violation of the Texas Insurance Code, OneBeaeon filed a renewed motion for judgment as a matter of law under Rule 50(b) and a motion for new trial under Rule 59. The district court denied both.

OneBeaeon timely appealed, contending that the district court erred in holding that (1) OneBeaeon was not entitled to judgment as a matter of law based upon the prior-knowledge exclusion, (2) DISH’s June 14, 2011, letter was a valid Stowers demand, (3) additional damages were proper under Chapter 541 of the Texas Insurance Code, and (4) there was competent evidence of the Welch Firm’s lost profits. The Welch parties cross-appealed, contending that the district court erred in requiring Welch to elect between the jury’s $5 million award for gross negligence and its $7.5 million award for the knowing violation of the Texas Insurance Code.

IL

Our review of a jury’s verdict is “especially deferential.” SMI Owen Steel Co. v. Marsh U.S.A., Inc., 520 F.3d 432, 437 (5th Cir. 2008) (quoting Flowers v. S. Reg’l Physician Servs., Inc., 247 F.3d 229, 235 (5th Cir. 2001)). We review the denial of a motion for judgment as a matter of law de novo but apply the same legal standard as the district court. Baisden v. I’m Ready Prods., Inc., 693 F.3d 491, 498 (5th Cir. 2012). A litigant cannot obtain judgment as a matter of law “unless the facts and inferences point ‘so strongly and overwhelmingly in the movant’s favor that reasonable jurors could not reach a contrary conclusion.’ ” Id. (quoting Flowers, 247 F.3d at 235). We also draw all reasonable inferences in the light most favorable to the verdict and cannot substitute other inferences that we might regard as more reasonable. Westlake Petrochems., L.L.C. v. United Polychem, Inc., 688 F.3d 232, 239 (5th Cir. 2012). “[I]t is the function of the jury as the traditional finder of the facts, and not for the Court, to weigh conflicting evidence and inferences, and determine the credibility of witnesses.” Roman v. W. Mfg., Inc., 691 F.3d 686, 692 (5th Cir. 2012) (quoting Mosley v. Excel Corp., 109 F.3d 1006, 1009 (5th Cir. 1997)).

The jury is “free to choose among reasonable constructions of the evidence.” United States v. Ramos-Cardenas, 524 F.3d 600, 605 (5th Cir. 2008). Thus, we “cannot reverse a denial of a motion for judgment as a matter of law unless the jury’s factual findings are not supported by substantial evidence, or if the legal conclusions implied from the jury’s verdict cannot in law be supported by those findings.” Am. Home Assurance Co. v. United Space All., LLC, 378 F.3d 482, 488 (5th Cir. 2004). Nevertheless, “[i]n reviewing an award of damages, we review all issues of law de novo.” Nero v. Indus. Molding Corp., 167 F.3d 921, 929 (5th Cir. 1999).

Any argument made in a renewed motion for judgment as a matter of law under Rule 50(b) must have been previously made in a motion for judgment as a matter of law under Rule 50(a). See Unitherm Food Sys., Inc. v. Swift-Eckrich, Inc., 546 U.S. 394, 398 n.1, 126 S.Ct. 980, 163 L.Ed.2d 974 (2006); see also Flowers, 247 F.3d at 238 (“If a party fails to move for judgment as a matter of law under Federal Rule of Civil Procedure 50(a) on an issue at the conclusion of all of the evidence, that party waives both its right to file a renewed post-verdict Rule 50(b) motion and also its right to challenge the sufficiency of the evidence on that issue on appeal.”).

We review a district court’s denial of a motion for new trial for an abuse of discretion. See McCaig v. Wells Fargo Bank (Tex.), N.A., 788 F.3d 463, 472 (5th Cir. 2015). “The district court abuses its discretion by denying a new trial only when there is an ‘absolute absence of evidence to support the jury’s verdict.’ ” Wellogix, Inc. v. Accenture, L.L.P., 716 F.3d 867, 881 (5th Cir. 2013) (quoting Seidman v. Am. Airlines, Inc., 923 F.2d 1134, 1140 (5th Cir. 1991)). If the evidence is legally sufficient, we must find that the district court did not abuse its discretion in denying a motion for new trial. See Cobb v. Rowan Cos., Inc., 919 F.2d 1089, 1090 (5th Cir. 1991); see also Whitehead v. Food Max of Miss., Inc., 163 F.3d 265, 269 (5th Cir. 1998) (explaining that it is “far easier” to show a district court should have granted a motion for judgment as a matter of law than it is to show a district court abused its discretion by not granting a new trial).

III.

A.

OneBeacon argues that the district court erred in denying its motion and renewed motion for judgment as a matter of law based on the policy’s prior-knowledge exclusion. Specifically, OneBeacon asserts that the district court incorrectly concluded that the prior-knowledge exclusion, if applied as written, would render the policy’s retroactive coverage illusory. Accordingly, OneBeacon contends the district court also erred in adopting the Welch Firm’s proposed interpretation of the pri- or-knowledge exclusion.

The district court concluded, as a matter of law, that OneBeacon’s interpretation of the malpractice policy would render the policy’s retroactive coverage illusory. The district court then turned to the Welch Firm’s interpretation of the policy. The Welch Firm urged the court to read the prior-knowledge exclusion in conjunction with the required disclosures in the 2007 policy application and to construe the exclusion to apply only to a claim arising out of a wrongful act that the insured could reasonably foresee would result in a claim. The district court accepted this construction.

The district court could not apply the literal policy language because of the extreme overbreadth of the wrongful act definition used in the exclusion: “any actual or alleged act, error, omission or breach of duty arising out of the rendering or the failure to render professional legal services.” On its face, this covers every single thing an attorney does or does not do, wrongful or not. As written, then, the exclusion renders the coverage illusory and is facially absurd. Indeed, OneBeacon concedes that the exclusion requires some modification, it simply disagrees with the district court’s approach.

The exclusion in the context of this policy must be directed at a “wrongful act” reasonably likely to lead to a malpractice claim. Under the undisputed facts of this case, at the relevant timé of December 20, 2006, the evidence supports the conclusion that Wooten’s “wrongful acts,” had they been rectified, would not have resulted in the sanctions that ensued and, thus, would not have supported the kind of recovery that the policy insured against (recovery for malpractice). At this point, he was merely under an order to provide discovery. Such discovery orders are lamentably par for the course in litigation and even Wooten’s opponent, Golub, agreed that had Wooten complied before Golub filed the motion in February 2007, death penalty sanctions, which were very rare, would not have resulted. Wooten would not receive the motion seeking or the order granting Golub’s request for death penalty sanctions from the magistrate judge until February and July 2007, respectively. Furthermore, evidence, was presented that Wooten could likely have cured his mistake almost until the date of the magistrate court’s July 2007 hearing. In the face of this evidence, OneBeacon, which bears the burden of proving an exclusion applies, cannot prevail as a matter of law on a contrary view. Crose v. Humana Ins. Co., 823 F.3d 344, 348 (5th Cir. 2016).

For these reasons, we affirm the district court’s orders denying OneBeacon’s motion and renewed motion for judgment as a matter of law based on the policy’s prior-knowledge exclusion.

B.

OneBeacon next challenges the district court’s ruling that DISH’s June 14, 2011, letter' offering to settle its claims against the Welch Firm in exchange for a settlement within policy limits was a valid Stow-ers demand. Specifically, OneBeacon contends the letter was not a valid Stowers demand because it did not offer to release Wooten, who was also an insured under the policy.

Under Stowers, in certain circumstances, insurers may be liable for negligently failing to settle within policy limits claims made against their insureds. Tex. Farmers Ins. Co. v. Soriano, 881 S.W.2d 312, 314-15 (Tex. 1994); G.A. Stowers Furniture Co. v. Am. Indem. Co., 15 S.W.2d 544, 547 (Tex. Comm’n App. 1929, holding approved). The Stowers duty is activated by a settlement demand when “three prerequisites are met: (1) the claim against the insured is within the scope of coverage, (2) the demand is within the policy limits, and (3) the terms of the 'demand are such that an ordinarily prudent insurer would accept it, considering the likelihood and degree of the insured’s potential exposure to an excess judgment.” Am. Physicians Ins. Exch. v. Garcia, 876 S.W.2d 842, 849 (Tex. 1994). The demand must also offer to release fully the insured in exchange for a sum equal to or less than the policy limits. Id. at 848-49.

OneBeacon argues that to be a “true” Stowers demand, the offer to settle must offer to release all insureds (here the Welch Firm and Wooten). The Texas Supreme Court has not spoken directly on this issue. Howevér, we have. In Travelers Indemnity Co. v. Citgo Petroleum Corp., 166 F.3d 761, 764 (5th Cir. 1999), we held that, when faced with a settlement demand over a policy with multiple insureds, an insurer fulfilling its Stowers duty “is free to settle suits against one of its insureds without being hindered by potential liability to co-insured parties who have not yet been sued.” In coming to this conclusion, we were persuaded by the Texas Supreme Court’s decision in Soriano. Citgo, 166 F.3d at 765 (citing Soriano, 881 S.W.2d at 314-16).

Instead of following Citgo, One-Beacon urges us to follow a recent Texas appellate decision in which the court found no valid Stowers demand where only the insured employer and not the employee (an additional insured) would have been released. Patterson v. Home State Cty. Mut. Ins. Co., No. 01-12-00365-CV, 2014 WL 1676931, at *10 (Tex. App,—Houston [1st Dist.] Apr. 24, 2014, pet. denied) (mem. op.). However, in that case, the insured employer had explicitly indicated to its attorney that it “did not want ‘any settlement demands to be accepted that didn’t involve a release of all of the claims against both [the employer and the employee.]’ ” Id. We conclude that the district court did -not err in holding that DISH’s July 14, 2011, letter demanding policy limits in exchange for ■ a full release of its claims against the Welch Firm was a valid Stowers demand which OneBeacon rejected,

c,

Next, OneBeacon- challenges the jury’s award of additional damages on. the ground that OneBeacon “knowingly” violated Section 541.060 of the Texas Insurance Code, contending that the district court erred in permitting this issue to go to the jury. ■ ⅛ •

Chapter 541 of' the Texas Insurance Code forbids an insurer from “failing to attempt in good faith to effectuate a prompt, fair, and equitable settlement of ... a claim with respect to which. the insurer’s liability has become reasonably clear.” Tex. Ins. Code § 541.060(a)(2)(A). To have acted “knowingly,” OneBeacon must have acted with actual awareness of the falsity, unfairness, or deceptiveness of the act that made it liable under Chapter 541. See St. Paul Surplus Lines Ins. Co., Inc. v. Dal-Worth Tank Co., Inc., 974 S.W.2d 51, 54 (Tex. 1998). “ ‘Actual awareness’ doés not mean merely that a person knows what he- is doing; rather, it means that a person knows that what he is' doing is false, deceptive, or unfair. In other words, a person .must think to himself at some point, “Yes, I know this is false, deceptive, or unfair to him, but I’m going .to- do it anyway.’ ” Id. at 54-5,5,

OneBeacon contends that it declined to settle the DISH claim because it believed that the prior-knowledge exclusion in the policy precluded coverage for the loss resulting from Wooten’s malpractice. To the extent it was wrong about coverage, One-Beacon argues that its mistake was reasonable because even the district court concluded that the (patently overbroad) prior-knowledge exclusion, as written, would preclude coverage.

However, the Welch Firm points to contradictory evidence supporting the jury’s finding. For example, OneBeacon’s contemporaneous written explanation for its rejection of DISH’s demand, which made no mention of any belief that OneBeacon had valid coverage defenses, belies One-Beacon’s current argument that it relied on the prior-knowledge, exclusion. Furthermore, DISH’s expert testified that One-Beacon’s conduct was not that of a reasonable insurer acting prudently, but was an instance of prohibited “post-claim” underwriting, which he defined as occurring when “the insurance company realizes that they have a problem, and they desperately look for a way . to avoid paying the claim. And what they’ll do is they’ll try to search for a morsel of evidence that they can conceivably turn into a material misrepresentation,. such.as we have here.” ■

Although OneBeacon can point to evidence that it believed it had coverage defenses in order to rebut the suggestion that OneBeacon knowingly engaged in false, deceptive, or unfair practices, the jury was free to disregard that evidence and credit the testimony of DISH’s expert. The evidence does not point so strongly and overwhelmingly in OneBeacon’s favor that reasonable jurors could not have reached a different conclusion. See Flowers, 247 F.3d at 235. Accordingly, the district court did not err in entering judgment on the jury’s award of additional damages on the ground that OneBeacon “knowingly’ violated Section 541.060 of the Texas Insurance Code.

D.

OneBeacon next challenges the jury’s award of $8 million in past and future lost profits to the Welch Firm. Specifically, OneBeacon argues that there was no competent evidence for the jury to come , to this conclusion.

In its Rule 50(b) motion, OneBea-con moved for renewed judgment as a matter of law on the Welch Firm’s lost profits claim. As to this claim, however, OneBeacon did not move for judgment as a matter of law before the jury’s verdict in its Rule 50(a) motion. We have held that a party cannot “renew” a motion it never made. In re Isbell Records Inc., 774 F.3d 859, 868-69 (5th Cir. 2014); Flowers, 247 F.3d at 238 (“If a party fails to move for judgment as a matter of law under Federal Rule of Civil Procedure 50(a) on an issue at the conclusion of all of the evidence, that party waives both its right to file a renewed post-verdict Rule 50(b) motion and also its right to challenge the sufficiency of the evidence on that issue on appeal.”). We have also held that we lack power to address a claim not properly raised in a Rule 50(b) motion. See McLendon v. Big Lots Stores, 749 F.3d 373, 374-75 (5th Cir. 2014) (not designated for publication) (collecting cases concerning the failure to make a Rule 50(b) motion on a ground raised in a Rule 50(a) motion and concluding that a failure to make a proper Rule 50(b) motion precludes review on appeal). Thus, we conclude that this issue is not properly before us.

E.

In its cross-appeal, the Welch Firm challenges the district court’s denial of its motion for entry of judgment for failing to include the jury’s award for exemplary damages based on gross negligence in the final judgment. At the conclusion of trial, the jury rendered a finding that OneBea-con committed a violation of Chapter 541 knowing that its conduct was false, deceptive, and unfair. It also found that OneBea-con’s refusal to settle DISH’s malpractice claim against the Welch Firm constituted “gross negligence.” The jury assessed damages for each of these violations separately, finding $7.5 million in additional damages for “knowingly” violating Chapter 541 and $5 million in common law exemplary damages for the grossly negligent Stow-ers violation. The district court held that it could include only one of the two awards in the final judgment, because “both claims related to essentially the same series of actions and the ultimate refusal to settle.”

Under the one satisfaction rule, Texas law limits recovery to one satisfaction per injury. Stewart Title Guar. Co. v. Sterling, 822 S.W.2d 1, 7 (Tex. 1991), modified on other grounds in Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 311 (Tex. 2006). Therefore, Texas law may force plaintiffs to elect the recovery they prefer if they receive a jury verdict with more than one assessment of damages. Kish v. Van Note, 692 S.W.2d 463, 467-68 (Tex. 1985). However, when “awards of additional damages and punitive damages [are] based upon separate jury findings and upon different acts,” a plaintiff may be entitled to both' such damages. Berry Prop. Mgmt., Inc. v. Bliskey, 850 S.W.2d 644, 665-66 (Tex. App.—Corpus Christi 1993, writ dism’d by agr.); see also Tompkins v. Cyr, 202 F.3d 770, 787 n.11 (5th Cir. 2000); Birchfield v. Texarkana Mem’l Hospital, 747 S.W.2d 361, 367 (Tex. 1987) (holding that separate awards of exemplary damages require that the verdict include “separate and distinct findings of actual damages”).

Berry elucidates this distinction. In Berry, Juli Bliskey lived in a townhome managed by Berry Property Management Incorporated (“Berry”). 850 S.W.2d at 651. An intruder broke into her apartment while she was asleep, using a key to her unit. Id. The intruder sexually assaulted Bliskey. Id. She sued Berry, asserting a negligence claim and a claim under the Texas Deceptive Trade Practices Act (“DTPA”). Id. Each claim was based on a different act by Berry: the negligence claim was based on lacking safety procedures, which allowed the intruder to obtain a copy of Bliskey’s key, whereas the DTPA claim was based on Berry’s failure to provide Bliskey with a statutorily-required night latch for her door. Id. at 654, 658. The jury awarded Bliskey compensatory damages resulting from Berry’s negligence and from Berry’s deceptive conduct under the DTPA. Id. at 664. In addition, it awarded Bliskey common law exemplary damages, as well as additional DTPA damages. Id.

The court of appeals determined that the one satisfaction rule applied and allowed Bliskey to receive only one recovery for her compensatory damages because she only suffered one injury. Id. at 666. However, because “Berry engaged in two different acts” the court of appeals held that “the trial court did not err in awarding Bliskey both common law exemplary damages and statutory additional damages.” Id. at 665.

The Welch Firm argues that, like in Berry, the jury found that OneBeacon violated two claims—Chapter 541 and the common law Stowers doctrine—such that it is entitled to the separate jury awards of both additional and exemplary damages. In support, the Welch Firm argues each claim entails distinct forms of culpability and injury.

The Welch Firm’s attempts to distinguish the causes of action and their damage amounts are unavailing. The Texas Supreme Court has held that a party bringing a claim under Chapter 541 premised on the failure to settle must meet the requirements of a Stowers claim. Rocor Int’l, Inc. v. Nat’l Union Fire Ins. Co., 77 S.W.3d 253, 260-62 (Tex. 2002). Not only do “the two causes of action have certain overlapping elements,” as the Welch Firm admits, but also the causes of action are also almost identical. Accepting the Welch Firm’s understanding of the law, therefore, would allow for separate additional and exemplary damage assessments based on claims that almost always involve identical acts. Furthermore, many of the Welch Firm’s arguments attempt to distinguish the claims and the jury’s findings. But Berry requires that the awards be “based upon separate jury findings and upon different acts,” and the Welch Firm failed to show that OneBeacon’s acts under each claim were materially different. 850 S.W.2d at 665-66 (emphasis added). As the district court aptly stated, “[w]hile the jury may have considered some of OneBeacon’s actions in handling the settlement decision more when assessing the common law Stowers claim than in assessing the additional damages claim under Chapter 541, both claims related to essentially the same series of actions and the ultimate refusal to settle.” Therefore, the district court did not err in requiring the Welch Firm to choose between additional damages under Chapter 541 and exemplary damages under Stowers.

AFFIRMED.

      . "Claims-made” policies are distinct from “occurrence” policies; the latter focus on whether an insured event occurred as specified during the policy period. The former focus on the date that the claim was made against the insured. Prodigy Commc'ns Corp. v. Agric. Excess & Surplus Ins. Co., 288 S.W.3d 374, 378, 379 n.7 (Tex. 2009).

      . Under Texas law, an insurer can be liable for negligently failing to settle a claim within policy limits. See G.A. Stowers Furniture Co. v. Am. Indem. Co., 15 S.W.2d 544, 547 (Tex. Comm’n App. 1929, holding approved).

      . DISH pursued its malpractice claim in arbitration against the Welch Firm in March 2013. The arbitrator found that Wooten had committed malpractice that led to the Sanctions Order; that, but for the order, DISH had viable defenses to the RMG Action; and that DISH suffered roughly $12.5 million in damages as a result of the 'malpractice. In June 2013, a Texas state court confirmed the arbitration award as a final judgment.

      .In December 2012, the district court granted the Welch Firm’s earlier-filed partial motion for summary judgment as to OneBea-con’s duty to defend DISH’s malpractice claim.

      . In this diversity case, we have jurisdiction over this appeal from a final judgment under 28 U.S.C. §§ 1291 and 1332.

      . As a preliminary matter, we reject DISH's contention that OneBeacon is barred from challenging the district court’s denial of its motion for judgment as a matter of law because OneBeacon failed to include them in its Rule 50(a) motion. See Unitherm, 546 U.S. at 398 n.l, 126 S.Ct. 980. Although OneBeacon’s arguments regarding the prior-knowledge ex-elusion were considerably more extensive in its Rule 50(b) motion, the exclusion is also mentioned in its Rule 50(a) motion, which stated that the district court should rule that the exclusion applies “as a matter of law.” The Rule 50(a) motion also referenced the more fulsome discussion of the exclusion engendered by OneBeacon’s prior summary judgment motion, which the district court denied in an order adopting its supposedly flawed construction of the policy. In any event, OneBeacon’s arguments on prior knowledge do not turn on sufficiency of the evidence—they turn solely on policy interpretation, a question of law that was litigated throughout the district court proceedings. Therefore, we apply de novo review here. Baisden, 693 F.3d at 498.

      . OneBeacon never sought a jury question on its own version of the "prior-knowledge” exclusion, thus its only basis to prevail here is if it is correct that the exclusion applies as a matter of law, assuming all facts and inferences in Welch's favor.

      . See also H.R. Mgmt. Co. v. Zurich Iris. Co., 137 F.3d 1350, 1998 WL 92301, at *3 (5th Cir. 1998) (not designated for publication) (stating that "under Texas law,” an insurer “had to settle” with certain co-insured's claimants "as long as the settlement fit the American Physicians criteria,”).

      . In Soriano, an insured named Soriano negligently crashed into and killed Medina, as well as Soriano's own passenger, Lopez. 881 S.W.2d at 313. The driver was insured by Farmers for $20,000. Id. Upon receipt of a settlement offer from the Lopez family, Farmers settled with them for $5,000 and offered the remaining $15,000 to the Medina family. Id. The Medinas rejected the offer and demanded the original policy limit of $20,000. Id. The Texas Supreme Court ultimately rejected the argument that Farmers violated its Stowers obligation by settling the claim with the Lopez family for $5,000 and thereby reducing the amount available for a settlement with the Medinas, Id. at 314-17. The Supreme Court "conclude[d] that when faced with a settlement demand arising out of multiple claims and inadequate proceeds, an insurer may enter into a reasonable settlement with one of the several claimants even though such settlement exhausts or diminishes the proceeds available to satisfy other claims.” Id.

      Like in Citgo, the instant situation differs from the facts of Soriano in that here, One-Beacon faced multiple insureds rather than a claimant and an insured. In Citgo, we rejected the same argument OneBeacon makes here to distinguish Soriano that "an insurer owes a higher duty to its insured than it does to claimants." Citgo, 166 F.3d at 765-68.

      . We are not bound by decisions from Texas courts 'of appeals. See Rogers v. Corrosion Prods., Inc., 42 F.3d 292, 295 (5th Cir. 1995) ("The decisions of lower courts should be given some weight, but they are not controlling where the' highest state court has not spoken on the subject.”). "To determine Texas law, we look to the decisions of the state's highest court, or in the absence of a final decision by that court on the issue under consideration, we ‘must determine ... how the state’s highest court' would resolve the issue if presented with it.' ” Citigroup Inc. v. Fed. Ins. Co., 649 F.3d 367, 371 (5th Cir. 2011) (quoting Holt v. State Farm Fire & Cas. Co., 627 F.3d 188, 191 (5th Cir. 2010)).

      . The Welch Firm objected to the "renewed” motion on this ground, so it did not forfeit this point. See Decorte v. Jordan, 497 F.3d 433, 438 (5th Cir. 2007) (noting that a litigant must raise in the district court its opponent’s failure to link a Rule 50(b) motion to arguments raised in an earlier Rule 50(a) motion).

      . Even if we were to apply plain error review as urged by OneBeacon, we would conclude that the challenge fails. OneBeacon argues that the Welch Firm failed to prove causation of lost profits "with reasonable certainly.” However, the "reasonable certainty” standard under Texas law of lost profits deals with the amount of damages, not causation. Texas Instruments v. Teletron Energy Mgmt., Inc., 877 S.W.2d 276, 279 (Tex. 1994) (recovery of lost profits is allowed where loss of profits is the "natural and probable consequences of the act or omission complained of;” however, “the amount of the loss must be shown by competent evidence with reasonable certainty.” (citations omitted)). One-Beacon argues that DISH would not have continued to use the Welch Firm regardless of OneBeacon’s actions on the Stowers demand. There was evidence to the contrary, and the amount of lost profits was shown with reasonable certainty. OneBeacon's argument would thus fail under plain error review.


author: PER CURIAM:

text:
    Ismael GONZALEZ-SOTO, also known as Ismael Gonzalez, Petitioner v. Loretta LYNCH, U.S. Attorney General, Respondent
    No. 14-60722
    Summary Calendar
    United States Court of Appeals, Fifth Circuit.
    Filed November 14, 2016

      Gino Mario Mesa, Esq., Law Office of Gino M. Mesa, Houston, TX, for Petitioner.
    W. Daniel Shieh, Esq., Trial Attorney, Office of Immigration Litigation, Enitan Otunla, Trial Attorney, Civil Division/OIL, U.S. Department of Justice, Washington, DC, for Respondent.
    Before BARKSDALE, HAYNES, and HIGGINSON, Circuit Judges.
   PER CURIAM:

Ismael Gonzalez-Soto petitions for review of the decision of the Board of Immigration Appeals (BIA), dismissing his apr peal from the order denying his application for withholding removal under section 241(b)(3) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1231(b)(3), and requiring his return to Mexico. Gonzalez, a native and ■ citizen of Mexico, was charged with being subject to removal for entering this- country without inspection, pursuant to INA § 212(a)(6)(A)®, 8 U.S.C. § 1182(a)(6)(A)®, as an alien present in the United States without being admitted or paroled, Gonzalez-Soto conceded his re-movability on the ground charged and filed an application for withholding of removal or, alternatively, voluntary departure. (The BIA granted voluntary, departure, subject to certain conditions.)

The décision of an immigration judge is reviewed to the extent it influenced the BIA; legal conclusions are reviewed de novo and factual findings, for substantial evidence. Sealed Petitioner v. Sealed Respondent, 829 F.3d 379, 383 (5th Cir. 2016).

To qualify for withholding of removal, an alien “must demonstrate a ‘clear probability’ of persecution upon return”. Roy v. Ashcroft, 389 F.3d 132, 138 (5th Cir. 2004). Thus, Gonzalez was required to demonstrate his “life or freedom would be threatened by persecution on account of either his race, religion, nationality, membership in a particular social group, or political opinion”. Id. In that regard, Gonzalez contends his membership in two different social groups made him eligible for withholding of removal. His claims fail in each instance.

First, he maintains he will likely face persecution in Mexico because the family of a man murdered by his father more than two decades ago allegedly targets him for revenge. Gonzalez testified, however, that his mother, uncle, and siblings have continued to reside in Mexico since the murder. The BIA may conclude “the reasonableness of an alien’s fear of persecution is reduced when his family remains in his native country unharmed for a long period of time after his departure”. Eduard v. Ashcroft, 379 F.3d 182, 193 (5th Cir. 2004). The BIA found Gonzalez’ claim speculative, as no evidence supported a determination he would be persecuted on this ground. The evidence does not compel a contrary conclusion. See Zhang v. Gonzales, 432 F.3d 339, 344 (5th Cir. 2005).

Second, Gonzalez maintains he will likely face persecution in Mexico because he will be perceived to have wealth for having lived in the United States. An alien’s proffered social group must be sufficiently particular and socially visible to be cognizable for purposes of withholding of removal. Hernandez-De La Cruz v. Lynch, 819 F.3d 784, 786-87 & n.1 (5th Cir. 2016). “Particularity is determined by ‘whether the proposed group can accurately be described in a manner sufficiently distinct that the group would be recognized, in the society in question, as a discrete class of persons.’ ” Id. at 786-87 (internal citation omitted).

“We do not recognize economic extortion as a form of persecution under immigration law, nor do we recognize wealthy [citizens of a different nation] as a protected group.” Castillo-Enriquez v. Holder, 690 F.3d 667, 668 (5th Cir. 2012) (internal quotation marks and citation omitted). Further, persons believed to be wealthy because they are returning to their home country from the United States do not constitute a sufficiently particular social group to support an application for withholding of removal. E.g., Diaz v. Holder, 537 Fed.Appx. 357, 358 (5th Cir. 2013); Segovia v. Holder, 406 Fed.Appx. 930, 930-31 (5th Cir. 2011).

DENIED.