author: STEPHEN A. HIGGINSON, Circuit Judge:

text:
    Aurelio DUARTE; Wynjean Duarte; S.D., a minor, by and through Wynjean Duarte, acting as her next friend; Brandi Duarte, Plaintiffs-Appellants v. CITY OF LEWISVILLE, TEXAS, Defendant-Appellee
    No. 15-41456
    United States Court of Appeals, Fifth Circuit.
    FILED May 30, 2017

      Richard Scott Gladden, Law Office of Richard Gladden, Denton, TX, for Plaintiffs-Appellants.
    William Andrew Messer, Brett Daniel Gardner, Messer, Rockefeller & Fort, P.L.L.C., Frisco, TX, for Defendant-Ap-pellee.
    Before DAVIS, ELROD, and HIGGINSON, Circuit Judges.
   STEPHEN A. HIGGINSON, Circuit Judge:

Aurelio Duarte together with his wife and two children challenge the constitutionality of a Lewisville, Texas, ordinance (“the Ordinance”) that restricts where certain individuals convicted of sex offenses may live within the city. Specifically, they allege that the Ordinance deprives both Duarte individually and the Duarte Family as a whole of procedural due process and violates Duarte’s constitutional right to equal protection. The district court granted summary judgment in favor of Lewis-ville. We affirm.

I.

In 2006, Duarte was found guilty after a jury trial of Online Solicitation of a Minor, in violation of Texas Penal Code § 15.031, and was sentenced to eight years in prison. The confinement term was suspended and he was placed on community supervision for a term of ten years. In 2007, Duarte’s community supervision was revoked, and he was sentenced to a three-year term of confinement. Duarte’s sentence was fully discharged in June 2010. Upon his release, Duarte returned to Lewisville, Texas, where he had resided with his wife and two daughters prior to his incarceration. As a result of his conviction, Duarte is required by Texas law to register annually with the Texas Department of Public Safety as a child sex offender. Because Duarte must so register, he must also comply with residency restrictions set forth in Lewis-ville’s “Regulation of Sex Offender Residency” Ordinance, which prohibits registered child sex offenders from residing anywhere in the city limits that is within 1,500 feet of “premises where children commonly gather.”

The collective area covered by the Ordinance encompasses the majority of Lewis-ville. According to Appellants, of the 39,-967 residential housing units in Lewisville in November 2012, only eight were legally available to them for purchase and two for rent, constituting .025 percent of the total housing stock. From approximately 2010 through 2013, the Duartes resided together in a one-bedroom motel room in Lewis-ville and searched for a residence that complied with the Ordinance to no avail. Ultimately, the Duartes moved to a nearby town.

The Ordinance sets forth a number of affirmative defenses, which essentially establish exemptions for eligible individuals. Relevant to Duarte’s equal protection claim is an exemption available to certain individuals who are subject to community supervision under Texas law as a result of their sex offense convictions. Under Texas law, individuals sentenced to a term of community supervision following a child sex offense conviction must adhere to a state-imposed condition that they not “go in, on, or within 1,000 feet of a premises where children commonly gather” during the pendency of their community supervision term. Tex. Crim. Proc. Code art. 42.12 § 13B(a)(1)(B). However, a court may waive or modify this restriction if: (1) the defendant is a student at a primary or secondary school; (2) the restrictive zone interferes with the ability of the defendant to attend school or hold a job and consequently constitutes an undue hardship for the defendant; or (3) the restrictive zone is broader than necessary to protect the public, given the nature and circumstances of the offense. § 13B(d), (e). Individuals who have successfully sought a judicial waiver of the state’s geographic restriction are afforded a parallel exemption from Lewis-ville’s Ordinance. However, child sex offenders—like Duarte—who have been fully discharged or were never subject to state-imposed community supervision, cannot seek a judicial waiver of the state’s geographic condition, because the condition does not actually apply to them. Those individuals are therefore unable to avail themselves of the parallel exemption provided by the Ordinance.

Appellants initially filed this suit on March 26, 2012, seeking compensatory damages, as well as equitable, declaratory, and injunctive relief under the Due Process and Equal Protection Clauses of the Fourteenth Amendment, the Double Jeopardy Clause of the Fifth Amendment, the Ex Post Facto guarantee, and 42 U.S.C. §§ 1983 and 1988. The district court initially dismissed all of Appellants’ claims for lack of standing. This court reversed, holding that both Duarte and his family had shown actual injury sufficient for standing purposes and that their constitutional claims were not rendered moot by their decision to move from Lewisville to a nearby town. See Duarte ex rel. Duarte v. City of Lewisville, 759 F.3d 514, 517-21 (5th Cir. 2014). In June 2015, Lewisville moved for summary judgment on the merits of Appellants’ claims. The Magistrate Judge recommended that the district court grant the motion, and the district court adopted the Magistrate Judge’s Report and Recommendation. See Duarte v. City of Lewisville, 136 F.Supp.3d 752 (E.D. Tex. 2015). On appeal, Appellants challenge only the district court’s grant of summary judgment with respect to their procedural due process and equal protection claims.

II.

We review a grant of summary judgment de novo, applying the same standards as the district court. Am. Home Assurance Co. v. United Space All., LLC, 378 F.3d 482, 486 (5th Cir. 2004). Summary judgment is only appropriate “if the mqvant shows that there is no genuine dispute as tp any material fact and the movant is entitled to judgment as a matter of Jaw.” Fed. R. Civ. P. 56(a). However, we review for plain error any of the Magistrate Judge’s factual findings and legal conclusions that were accepted by the district court and to which Appellants failed to object. Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc), superseded by statute on other grounds, 28 U.S.C. § 636(b)(1).

III.

Duarte first asserts that the Ordinance violates his right to due process of law under the Fourteenth Amendment, because it deprives him of a constitutiofially-proteeted liberty interest—namely, the ability to reside in the location of his choice—without adequate procedural protection. Duarte seeks a hearing to prove that he is not currently dangerous and therefore should not be deprived of the liberty to live in the areas prohibited by the Ordinance. The district court rejected Duarte’s procedural due process claim on the ground that the Ordinance did not deprive him of a constitutionally-protected liberty interest. However, we need not reach that question.

As the Supreme Court explained in a similar challenge to a Connecticut sex offender registration law, “even assuming” that the Ordinance deprives Duarte of a liberty interest, “due process does not entitle him to a hearing to establish a fact that is not material under the • • • statute.” Conn. Dep’t of Pub. Safety v. Doe, 538 U.S. 1, 7, 123 S.Ct. 1160, 155 L.Ed.2d 98 (2003); see also Meza v. Livingston, 607 F.3d 392, 401 (5th Cir. 2010) (“When an individual is convicted of a sex offense, no further process is due before imposing sex offender cohditions.” (citing Conn. Dep’t of Pub. Safety, 538 U.S. at 7-8, 123 S.Ct. 1160)); Doe v. Miller, 405 F.3d 700, 709 (8th Cir. 2005) (concluding that an “Iowa residency restriction [did] not contravene principles of procedural due process under the Constitution” because “[t]he restriction applied] to all offenders who [had] been convicted of certain crimes against minors, regardless of what estimates of future dangerousness might be proved in individualized hearings.”). The fact that Duarte seeks to prove—his current dangerousness—is “of no consequence” under the Ordinance. Conn. Dep’t of Pub. Safety, 538 U.S. at 7, 123 S.Ct. 1160. The sole relevant question is whether Duarte “is required to register on the Texas Department of Public Safety’s Sex Offender Database ... because of a conviction involving a minor.” That fact is not in dispute, and Duarte’s underlying conviction is a fact that he “has already had a proeedurally safeguarded opportunity to contest.” Id. As noted, Duarte exercised his constitutional right to a trial by jury, was found guilty of the underlying sex offense, and was ultimately sentenced to three years of imprisonment following revocation of his community supervision term. Thus, the absence of an additional hearing allowing Duarte to contest current dangerousness does not offend the principles of procedural due process.

This conclusion applies with equal force to Appellants’ similar claim that the Ordinance deprives the Duarte Family collectively of a constitutionally-protected liberty interest in “family consortium” without procedural due process. The only procedural defect Appellants identify is the Ordinance’s “complete failure to provide [the Duarte Family] with a pre-deprivation opportunity to be heard on the issue of whether ... Duarte currently poses (or has ever posed) any threat to anyone by reason of a lack of sexual control.” As is the case with Duarte’s individual claim, procedural due process does not entitle the Duarte Family to a hearing to “establish a fact that is not material” under the Ordinance. Id.

As the Supreme Court observed in Connecticut Department of Public Safety, “[i]t may be that [Appellants’] claim is actually a substantive challenge to [the] statute ‘recast in procedural due process terms.’” Id. at 8, 123 S.Ct. 1160 (quoting Reno v. Flores, 507 U.S. 292, 308, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993)). However, because Appellants insist that they intend only to bring a procedural due process claim, we do not reach the substantive due process question.

IV.

Duarte next alleges that the Ordinance deprives him of his constitutional right to equal protection of law in violation of the Fourteenth Amendment. “The Equal Protection Clause of the Fourteenth Amendment commands that no State shall ‘deny to any person within its jurisdiction the equal protection of the laws,’ which is essentially a direction that all persons similarly situated should be treated alike.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985) (quoting Plyler v. Doe, 457 U.S. 202, 216, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982)). To establish an equal protection claim, Duarte must first show that “two or more classifications of similarly situated persons were treated differently” under the statute. Gallegos-Hernandez v. United States, 688 F.3d 190, 195 (5th Cir. 2012); see also Stefanoff v. Hays Cty., 154 F.3d 523, 525-26 (5th Cir. 1998). Once that threshold element is established, the court then determines the appropriate level of scrutiny to apply. “Strict scrutiny is required if the legislative classification operates to the disadvantage of some suspect class or impinges upon a fundamental right explicitly or implicitly protected by the Constitution.” Richard v. Hinson, 70 F.3d 415, 417 (5th Cir. 1995) (citing San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 17, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973)). If neither a suspect class nor a fundamental right is implicated, the classification need only bear a rational relation to a legitimate governmental purpose. Id. at 417.

Notably, Duarte does not challenge the Ordinance’s classification between child sex offenders and the general population. Instead, he brings a more narrow challenge to the differing treatment of child sex offenders subject to state-imposed community supervision versus those who are not. The Magistrate Judge determined that this classification was subject to rational basis review, because it neither disadvantaged a suspect class nor impinged on a fundamental right. Appellants failed to object to this conclusion below, and, although they now make a cursory argument that strict scrutiny should apply, they fail to explain why, much less show that the Magistrate Judge’s conclusion constituted plain error. See Douglass, 79 F.3d at 1428-29. Therefore, we limit our analysis to whether the Ordinance’s differing treatment of the two groups identified by Duarte bears a rational relation to a legitimate governmental purpose.

As an initial matter, Lewisville argues that Duarte failed to identify a classification that would allow this court to perform an equal protection analysis at all, reasoning that the Ordinance “does not create multiple classes of child sex offenders,” because the “defense in the Ordinance is equally available to anyone who meets its terms.” We disagree. The Ordinance divides child sex offenders into two categories: (1) those subject to state-imposed community supervision and who are therefore permitted to avail themselves of the exemptions incorporated from state law, and (2) those who are not subject to community supervision and are therefore, by definition, unable to avail themselves of the same exemptions. As a result, the Ordinance provides a form of relief to one category of child sex offenders that is not available to another. This imposition of differing treatment based on delineated categories of sex offenders satisfies the threshold classification requirement. See Sonnier v. Quarterman, 476 F.3d 349, 368-69 (5th Cir. 2007).

We agree, however, that this classification “rationally further[s] a legitimate state interest.” Nordlinger v. Hahn, 505 U.S. 1, 10, 112 S.Ct. 2326, 120 L.Ed.2d 1 (1992). “Rational basis review begins with a strong presumption of constitutional validity.” Malagon de Fuentes v. Gonzales, 462 F.3d 498, 504 (5th Cir. 2006). A court will uphold the classification “if there is a rational relationship between the disparity of treatment and some legitimate governmental purpose.” Heller v. Doe, 509 U.S. 312, 320, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993). Because “[rjational basis scrutiny requires only that the legislative classification rationally promote a legitimate governmental objective!,]” Williams v. Ly- naugh, 814 F.2d 205, 208 (5th Cir. 1987) (emphasis added), we focus on the specific classification challenged by Duarte. In other words, the “appropriate standard of review is whether the difference in treatment between” child sex offenders on community supervision and child sex offenders not on community supervision “rationally furthers a legitimate state interest.” Nordlinger, 505 U.S. at 11, 112 S.Ct. 2326 (examining whether the difference of treatment between newer and older homeowners for property tax purposes furthered a legitimate state interest).

Lewisville’s explanation for the challenged classification is that it “is little more than legislative deference to an existing court order and seeks to avoid potentially conflicting orders.” Duarte complains that this is the first time Lewisville has articulated such a justification. However, “the Equal Protection Clause does not demand for purposes of rational-basis review that a legislature or governing decision-maker actually articulate at any time the purpose or rationale supporting its classification.” Id. at 15, 112 S.Ct. 2326. Instead, the court’s review merely requires “that a purpose may conceivably or ‘may reasonably have been the purpose and policy’ of the relevant governmental decisionmaker.” Id. (quoting Allied Stores of Ohio, Inc. v. Bowers, 358 U.S. 522, 528-529, 79 S.Ct. 437, 3 L.Ed.2d 480 (1959)). “As long as there is a conceivable rational basis for the official action, it is immaterial that it was not the or a primary factor in reaching a decision or that it was not actually relied upon by the decisionmakers or that some other nonsuspect irrational factors may have been considered.” Reid v. Rolling Fork Pub. Util. Dist., 854 F.2d 751, 754 (5th Cir. 1988). The burden is on the challenging party to counter “any reasonably conceivable state of facts that could provide a rational basis for the classification.” Heller, 509 U.S. at 320, 113 S.Ct. 2637 (quoting F.C.C. v. Beach Commc’ns, Inc., 508 U.S. 307, 313, 113 S.Ct. 2096, 124 L.Ed.2d 211 (1993)).

“[Classifications serving to protect legitimate expectation and reliance interests do not deny equal protection of the laws.” Nordlinger, 505 U.S. at 13, 112 S.Ct. 2326. Indeed, “[t]he protection of reasonable reliance interests is not only a legitimate governmental objective: it provides ‘an exceedingly persuasive justification[.]’ ” Heckler v. Mathews, 465 U.S. 728, 746, 104 S.Ct. 1387, 79 L.Ed.2d 646 (1984) (quoting Kirchberg v. Feenstra, 450 U.S. 455, 461, 101 S.Ct. 1195, 67 L.Ed.2d 428 (1981)). Here, the affirmative defense provided by the Ordinance—and the classification it creates—is rationally related to a legitimate government interest in deferring to an existing state court judgment and protecting the expectation and reliance interests of those who have already sought and received a judicial determination that they are entitled to relief from geographic restrictions.

Further, the fact that some individuals are eligible for an exemption while others are not is not necessarily fatal under rational basis review. “[L]egitimate public policies [may] justify the incidental disadvantages [laws] impose on certain persons.” Romer v. Evans, 517 U.S. 620, 635, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996). “Like all rational actors with limited resources, [a government actor] must reach its abstract goal ... by a series of practical requirements and easily-administered rules judged to be reasonable surrogates for it.” Brennan v. Stewart, 834 F.2d 1248, 1259 (5th Cir. 1988). As the Supreme Court has explained, “the fact that ... exemptions exist ... does not render [a law] violative of equal protection” if there are “valid reasons for [the] exemptions ... and no evidence to dispel them.” McGow an v. Maryland, 366 U.S. 420, 427, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961).

Because the Ordinance’s challenged classification “rationally further[s] a legitimate state interest[,]” Nordlinger, 505 U.S. at 10, 112 S.Ct. 2326, we conclude that it does not violate the Equal Protection Clause.

V.

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

      . The term "premises where children commonly gather" is defined as including “all improved and unimproved areas on the lot where a public park, public playground, private or public school, public or semi-public swimming pool, public or non-profit recreational facility, day care center or video arcade facility is located.”

      . Duarte contends that the Lewisville ordinance is so restrictive that it effectively banishes him from the city, thus infringing on his constitutionally protected liberty interest to reside in the location of his choice. As we have set forth above, in light of the Supreme Court’s holding in Connecticut Department of Public Safety, we need not decide whether the Ordinance deprives Duarte of a constitutionally protected liberty interest, nor do we need to apply the test set forth in Mathews v. El-clridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), concerning the constitutional adequacy of procedural protections. However, we note that whether an ordinance or statute like the one at issue here constitutes effective banishment remains an open question.

      . While the procedural element of the Due Process Clause protects individuals "from the mistaken or unjustified deprivation of life, liberty, or property[,]” Carey v. Piphus, 435 U.S. 247, 259, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978), the substantive element "forbids the government to infringe ... ‘fundamental’ liberty interests at all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest.” Washington v. Glucksberg, 521 U.S. 702, 720-21, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997) (quoting Reno, 507 U.S. at 302, 113 S.Ct. 1439). Because Duarte explicitly waived any arguments about whether effective banishment would infringe substantive due process, both in his briefing and at oral argument, we do not address whether the Ordinance infringes on a fundamental right or liberty interest.

      . Because Appellants have failed to adequately brief the issue, we do not reach the question of whether the Ordinance "operates to the disadvantage of some suspect class or impinges upon a fundamental right explicitly or implicitly protected by the Constitution.” Richard, 70 F.3d at 417. This court previously has held that sex offenders are not a suspect class for equal protection purposes. See Stauffer v. Gearhart, 741 F.3d 574, 587 (5th Cir. 2014). As with Appellants’ Due Process Clause claim, we also do not reach the question of whether the Ordinance impinges on a fundamental right. See supra Note 3.


source: Caselaw Access Project

author: PATRICK E. HIGGINBOTHAM, Circuit Judge:

license: Public Domain

text:
    FAIRMONT CASH MANAGEMENT, L.L.C., doing business as Cash Cow Pawn, Plaintiff-Appellant v. Tanarra JAMES, Director of Industry Operations, Bureau of Alcohol, Tobacco, Firearms and Explosives, Defendant-Appellee
    No. 16-41449
    United States Court of Appeals, Fifth Circuit.
    FILED May 31, 2017

      Scott L. Braum, Attorney, Timothy Rockwell Rudd, Scott L. Braum & Associates, Limited, Dayton, OH, for Plaintiff-Appellant.
    Chad Wesley Cowan, Assistant U.S. Attorney, U.S. Attorney’s Office, Southern District of Texas, Houston, TX, for Defendant-Appellee.
    Before STEWART, Chief Judge, and HIGGINBOTHAM and COSTA, Circuit Judges.
   PATRICK E. HIGGINBOTHAM, Circuit Judge:

Based on numerous violations of the federal Gun Control Act, the ATF decided to revoke Cash Cow Pawn Shop’s federal firearms license (“FFL”). After an administrative hearing, Cash Cow exercised its right to challenge that revocation decision in federal court, but the district court granted summary judgment against it. Cash Cow appealed, asserting error in the grant of summary judgment, as well as in various discovery and procedural rulings of the district court. We affirm.

I.

Fairmont Cash Management, LLC, is a Texas company doing business in Alvin as “Cash Cow Pawn.” Cash Cow is owned and operated by Derek Munz. Munz has a long history in the pawn shop business, operating at least a dozen since 1994, all of which held federal firearms licenses permitting them to sell guns to members of the public provided they complied with applicable federal regulations. Munz opened Cash Cow in 2007 and obtained an FFL for it that same year.

With the privileges attendant to an FFL come burdens; in addition to stringent documentation requirements, FFL-holders are subject to unannounced compliance inspections by the Bureau of Alcohol, Tobacco, Firearms, and Explosives, the federal agency charged with administering FFL licensure. To Cash Cow’s credit, it was subject to one such inspection in 2010, and received an entirely clean bill of compliance. The ATF thereafter left it alone until early in 2013, when the agency received an anonymous tip that Cash Cow had unlawfully sold firearms to people federally prohibited from possessing them.

As a result, the ATF launched an undercover investigation of Cash Cow. On three different occasions, the agency sent an agent into Cash Cow’s store to attempt to purchase a firearm in a way that would have been unlawful as apparent to Cash Cow. On the first occasion, Cash Cow’s store manager, Nelson Alonso, sold a firearm to the undercover ATF agent even though the agent told Alonso that he was a convicted felon not lawfully in the United States. When Alonso ran the required background check on the agent, he misspelled the name given to prevent the national registry from retuning any flags. On the second occasion, the same agent attempted another firearm purchase from Cash Cow. This time, Alonso correctly input the name into the national registry, which returned an instruction to deny the sale. Nonetheless, Alonso completed the transaction, concealing the true purchaser by adding the record of the transaction to an earlier sale to a different, legitimate customer. On the third occasion, the same agent attempted yet another firearm purchase from Cash Cow. This time, he brought his “girlfriend” (another ATF agent) to fill out any paperwork and be subject to the background check instead of the true purchaser'—a so-called “straw purchase.” Alonso sold three firearms to the agent by subjecting his “girlfriend” to a background check instead of him.

The ATF understandably chose to arrest and prosecute Alonso. It obtained and executed a search warrant at Cash Cow’s store for the transaction records incriminating Alonso. Alonso was charged with selling a firearm to a felon and pleaded guilty. The ATF made Munz aware of the matter, but took no further action against Cash Cow at that time.

A year later, in early 2014, the ATF conducted an unannounced compliance inspection on Cash Cow to review all of its firearms-related business activity since the Alonso incident. The inspection revealed numerous violations of the Gun Control Act both stemming from and going beyond the Alonso incident. Finally satisfied that perhaps Cash Cow should no longer be in the business of dealing firearms, the ATF sent Cash Cow notice that it intended to revoke Cash Cow’s FFL.

Cash Cow invoked its right to an administrative hearing to contest the revocation, at which it was represented by counsel. The ATF appointed a hearing officer to preside, and ATF division counsel represented the government. After hearing and reviewing the evidence, the hearing officer concluded that Cash Cow had willfully violated the Gun Control Act and recommended that the ATF uphold the revocation of its FFL. He entered an extensive memorandum recohnting the events of the hearing and announcing his findings. The ATF’s Houston Director of Industry Operations, who had observed the hearing, agreed and issued Cash Cow a final notice that its FFL was revoked.

The ATF’s final list of violations committed by Cash Cow employees, none of which Cash Cow contests, is as follows:

• On three different occasions, selling a firearm to a person known to be subject to a federal firearm prohibition in violation of 18 U.S.C. § 922(d)(1), (5) and 27 C.F.R. § 478.99(c)(1), (5);
• Failing to timely and accurately report the sale of two or more semiautomatic rifles to the same person in violation of 18 U.S.C. § 923(g)(5)(A) and 27 C.F.R. § 478.125;
• On twelve different occasions, failing to timely and accurately report the sale of two or more pistols or revolvers to the same unlicensed person in violation of 18 U.S.C. § 923(g)(3)(A) and 27 C.F.R. § 478.126a;
• On seven different occasions, failing to timely and accurately record the disposition of a firearm in violation of 18 U.S.C. § 923(g)(1)(A) and 27 C.F.R. § 478.125(e);
• Selling a firearm to an unlicensed person without waiting for the applicable period of time to trigger an exception in violation of 18 U.S.C. § 922(t) and 27 C.F.R. § 478.102(a)(2)(h);
• On two different occasions, selling a firearm to an unlicensed person without any exception available in violation of 18 U.S.C. § 922(t) and 27 C.F.R. § 478.102(a);
• Making a false statement on a federal firearm form in violation of 18 U.S.C. § 923(m) and 27 C.F.R. § 478.128(c);
• Selling a firearm without recording the transaction in violation of 18 U.S.C. § 923(g)(1)(A) and 27 C.F.R. § 478.124(a)(1);
• On four different occasions, failing to execute the required paperwork in violation of 18 U.S.C. § 922(m) and 27 C.F.R. § 478.21(a);
• On sixteen different occasions, failing to get the required documentation from the transferee upon sale of a firearm in violation of 18 U.S.C. § 923(g)(1)(A) and 27 C.F.R. § 478.124(c)(1);
• On ten different occasions, selling a firearm without verifying the transferee’s identity in violation of 18 U.S.C. § 923(g)(1)(A) and 27 C.F.R. § 478.124(c)(3)®;
• On fourteen different occasions, selling a firearm without recording national database information on the required paperwork in violation of 18 U.S.C. § 923(g)(1)(A) and 27 C.F.R. § 478.124(e)(3)(iv);
• On three different occasions, selling a firearm without indicating on the required paperwork what firearm was sold in violation of 18 U.S.C. § 923(g)(1)(A) and 27 C.F.R. § 478.124(c)(4);
• On three different occasions, failing to sign and certify the required paperwork in violation of 18 U.S.C. § 923(g)(1)(A) and 27 C.F.R. § 478.124(c)(5).

Cash Cow then exercised its right to challenge the revocation .of its FFL in federal court; it filed a complaint against the ATF’s Houston Director of Industry Operations (styled as the respondent in this lawsuit). Cash Cow sought a temporary restraining order allowing it to keep its FFL and stay in business during the pendency of the federal-court challenge. However, it then withdrew that application because the ATF agreed not to issue the formal revocation until the lawsuit was resolved.

The ATF moved for summary judgment. In response, Cash Cow moved for a stay of summary judgment under Federal Rule of Civil Procedure 56(d) to allow more time for discovery, arguing that it should be permitted to discover several documents and recordings in the ATF’s possession relating to the investigation against Cash Cow. The district court granted the motion in part and extended the time Cash Cow had to respond to summary judgment. It also informed Cash Cow that, even after its response was due, it would be permitted to supplement its response with any additional information discovered. Cash Cow simultaneously filed its summary judgment response and a motion to compel the ATF to turn over its internal files relating to the Alonso investigation—files that the ATF claimed were privileged and unnecessary.

In the same opinion, the district court both denied Cash Cow’s motion to compel and granted the ATF’s motion for summary judgment. The court was satisfied that the ATF had followed the correct administrative procedure and that the undisputed evidence in the administrative record established that Cash Cow had committed at least one willful violation of the Gun Control Act. It decided that it did not need the evidence that Cash Cow sought to compel discovery of because the administrative record was sufficient.

Shortly after the court ruled, Cash Cow filed an “emergency motion to enforce F.R.C.P. 62(a) automatic stay.” It explained that the ATF had agreed to allow Cash Cow to stay in business with an FFL during the judicial review process, but had taken action to strip Cash Cow of its FFL privileges within an hour of the district court’s summary judgment ruling. According to Cash Cow, this violated Federal Rule of Civil Procedure 62(a)’s 14-day automatic stay of execution of judgment. The ATF replied that it would not deny Cash Cow any FFL privileges during those 14 days, so the motion was moot. The district court denied the motion, finding that the ATF’s authority to revoke Cash Cow’s FFL was statutory, not the result of a judgment. Moreover, though Cash Cow did not seek a stay pending appeal (it sought only a 14-day automatic stay), the district court considered one sua sponte but declined to impose such a stay.

II.

We review a district court’s grant of summary judgment de novo, applying the same standard as the district court. Summary judgment may be affirmed for any reason raised to the district court and supported by the record, and we are not bound by the grounds articulated by the district court. “The court shall grant summary judgment 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.” “When considering a motion for summary judgment, the court views all facts and evidence in the light most favorable to the non-moving party.” Unlike in other cases in which we take appeal from administrative action, we are instructed to provide “de novo judicial review” of the ATF’s revocation decision. We review discoyery rulings for abuse of discretion.

III.

Cash Cow appeals (A) the district court’s grant of summary judgment, (B) the court’s denial of its motion to compel, and (C) the court’s denial of its motion to enforce the automatic stay.

A.

With begin with Cash Cow’s primary challenge, which is to the district court’s grant of summary judgment against it.

1. Applicable Principles

The Gun Control Act of 1968 requires every person engaged “in the business of importing, manufacturing, or dealing in firearms, or importing or manufacturing ammunition” to be properly licensed by the Attorney General. This license is called a federal firearms license, or FFL. Even after a person has been licensed, “[t]he Attorney General may, after notice and opportunity for hearing, revoke any license issued under this section if the holder of such license has willfully violated any provision of this chapter or any rule or regulation prescribed by the Attorney General under this chapter.”

A licensee whose FFL the Attorney General decides to revoke has several procedural rights. First:

[A]ny holder of a license which is revoked shall receive a written notice from the Attorney General stating specifically the grounds ... upon which the license was revoked. Any notice of a revocation of a license shall be given to the holder of such license before the effective date of the revocation.

Second:

If the. Attorney General ... revokes[ ] a license, he shall, upon request by the aggrieved party, promptly hold a hearing to review his ... revocation. In the case of a revocation of a license, the Attorney General shall upon the request of the holder of the license stay the effective date of the revocation. A hearing held under this paragraph shall be held at a location convenient to the aggrieved party.

Third:

If after a hearing held under paragraph (2) the Attorney General decides not to reverse his decision to ... revoke a license, the Attorney General shall give notice of his decision to the aggrieved party. The aggrieved party may at any time within sixty days after the date notice was given under this paragraph file a petition with the United States district court for the district in which he resides or has his principal place of business for a de novo judicial review of such denial or revocation. In a proceeding conducted under this subsection, the court may consider any evidence submitted by the parties to the proceeding whether or not such evidence was considered at the hearing held under paragraph (2). If the court decides that the Attorney General was not authorized to deny the application or to revoke the license, the court shall order the Attorney General to take such action as may he necessary to comply with the judgment of the court.

The Attorney General has delegated these functions to the ATF.

“A district court employing a de novo standard of review should not attach any presumption of correctness to the ATF’s decision; however, a court may give the ATF’s determination as much weight as the court deems appropriate.” Although review must be de novo, the court is “not required to hold an evidentiary hearing and may enter judgment solely based upon the administrative record.” The court may consider evidence not presented at the administrative hearing, but it is within the discretion of the district court whether to do so. The Administrative Procedures Act does not apply to revocation hearings by the ATF.

In reviewing the ATF’s decision, the question is whether it was authorized to revoke the petitioner’s FFL. Here, Cash Cow admits that all of the violations detected by the ATF occurred, but insists that they were not committed “willfully” as required for revocation by § 923(e).

A license holder commits a willful violation under § 923 if the licensee knew of his legal obligation and purposefully disregarded or was plainly indifferent to the record-keeping requirements. Additionally, a violation is willful if the licensee has been informed of the regulations, warned of violations, and continually violates those requirements. Furthermore, knowledge of the particular regulation violated is not required so long as the licensee disregarded a known legal obligation. Section 923 does not require evidence of a “bad purpose” or “evil motive” in order to support a showing of willfulness. “Factors tending to establish ‘willfulness’ as a matter of law include (1) a licensee’s proven knowledge of its record keeping obligations, (2) persistent failure ‘to comply with ... the same or similar’ provisions, and (3) receipt of a warning letter ‘advising [the licensee] that repeated violations of the regulations could result in the revocation of its license.’ ” “[W]here a licensee understands his or her legal obligations under the GCA, yet fails to abide by those obligations, his or her license can be denied or revoked on the basis that the dealer ‘willfully’ violated the GCA.”

A single willful violation authorizes the ATF to revoke the violator’s FFL, regardless how severe, though the frequency and severity of the violations can be relevant to willfulness. Bearing these principles in mind, we turn to the facts of this case.

2. Discussion

First, to what is undisputed. Cash Cow admits that its employees committed all of the violations of the Gun Control Act found by the ATF to have occurred. It further acknowledges that it was aware of all of its obligations under that Act—as mentioned, its owner, Munz, is an FFL veteran who prides himself on having an exemplary FFL compliance record. Finally, it concedes that Alonso himself acted willfully when he violated the Act. Cash Cow disputes first whether Alonso’s actions can here be imputed to it; and second whether any individual violation committed by an employee other than Alonso was committed willfully.

First, Cash Cow argues that Alon-so was a “rogue employee” whose actions cannot be imputed to it for the purpose of the Gun Control Act. We disagree. Under the Act, “where ... the licensee is a corporation, it is chargeable with the conduct and knowledge of its employees.” While acknowledging this, Cash Cow urges us to import into this context, the conceptual framework of Monell v. Department of Social Services of City of New York, which bars respondeat superior liability of municipalities under 42 U.S.C. § 1983 and requires a showing of the culpability of the municipality itself. Cash Cow Pawn Shop, however, is not a municipality, and this is not a ease under § 1983. Cash Cow is vicariously liable for the illegal acts of its employees regardless whether it approved of them. We reject its argument to the contrary. Alonso’s multiple undisputedly willful violations of the Gun Control Act are attributable to Cash Cow and authorized the ATF to revoke its FFL. Summary judgment was proper on this basis.

We need go no further; a single willful violation suffices to sustain the ATF’s revocation decision. Nonetheless, we address as an alternative holding Cash Cow’s second argument about the violations committed by its employees other than Alonso. As it goes, those numerous other violations were mere “paperwork violations” that the ATF frequently overlooks and that we, too, should overlook. This misses the mark. Our question is not whether the ATF fairly distributes its revocation decisions among FFL-holders who violate the Gun Control Act; it is whether the ATF was authorized by the Act to revoke. And the fact that Cash Cow’s violations were paperwork violations does not make them any less serious or less willful. The Gun Control Act imposes significant record-keeping obligations upon firearms dealers as part of Congress’s carefully crafted plan to ensure that firearms do not end up in the wrong hands.

The sheer volume of violations admitted by Cash Cow here makes willfulness nigh inescapable. On more than fifty different occasions other than the Alonso incident, Cash Cow employees failed to satisfy their burden under the Act. And a significant number of those occurred after the store was the subject of a federal criminal investigation resulting in the arrest and conviction of its store manager. When well-trained employees under the supervision of an FFL veteran commit the volume of violations described above against that backdrop, there can be little doubt that at least one of the violations, and likely more, was committed with reckless disregard to known federal obligations—willfully.

This court has, albeit in unpublished cases, affirmed summary judgment for the ATF upholding FFL revocation on less extreme facts than here. For example, in Athens Pawn Shop Inc. v. Bennett, the pawn shop did not dispute the found violations, but argued “that revocation of its license was not warranted because the violations were not willful and were due to inadvertent and technical record-keeping mistakes.” We affirmed summary judgment for the ATF:

[T]he evidence showed that Athens Pawn Shop had been cited on at least three prior occasions for the same or similar violations of the requirements for maintaining accurate acquisition and disposition records. It was also specifically warned that its license was contingent on compliance with federal regulations and that future violations would be considered willful and could jeopardize its license. It is indisputable that Athens Pawn Shop was aware of its legal obligations but committed numerous subsequent infractions. Repeated violation of known legal requirements is sufficient to establish willfulness.

Similarly, in Weaver v. Harris, the former licensee did not challenge any of the found violations, but rather argued that revocation was not warranted because his violations of the federal recording requirements were not willful. Again, we affirmed summary judgment for the ATF:

Weaver’s 2009 violations, which stemmed from his failure to record the disposition of 213 firearms in his Acquisitions and Dispositions book, were not the first time he was cited for the same recording violation. In 1998, Weaver was cited for failing to account for seven firearms in his Acquisitions and Dispositions book. Yet despite this previous violation and his knowledge of federal firearm recording requirements, Weaver violated those same requirements in 2009. And not only did he violate the same requirements, the number of violations increased dramatically. Moreover, even after he was informed of the 2009 violations, Weaver failed to take immediate action to rectify the recording deficiencies. Because the “[rjepeated violation of known legal requirements is sufficient to establish willfulness,” we conclude that the district court properly granted summary judgment in favor of the Director.

Summary judgment is even more compelling here.

B.

We turn to Cash Cow’s appeal of the district court’s discovery ruling. As explained, Cash Cow asked the district court to compel the ATF to turn over its internal investigation file on Cash Cow. The ATF opposed on the grounds that its internal files were privileged, irrelevant, and unnecessary to the court’s summary judgment ruling because the case could be decided on the administrative record alone. The district court denied the motion to compel because it found that it needed no additional evidence beyond the administrative record to rule on the pending motion for summary judgment.

That decision was not an abuse of discretion. The administrative record in this case is robust, with some hundreds of pages of testimony and exhibits. Cash Cow did not object to any of the evidence presented at the hearing. By all accounts, the ATF representative who testified at the hearing recounted all of the evidence pertaining to the Cash Cow investigation. Moreover, the fact that Cash Cow does not dispute any of the violations found by the ATF makes unclear exactly what is sought. Cash Cow wants a full trial on the issue of willfulness alone, but both in its brief and at oral argument, it was unable to point to a genre of relevant evidence it hopes to discover through the ATF’s internal investigation file. We affirm the district court’s denial of Cash Cow’s motion to compel.

C.

We conclude with Cash Cow’s argument that the district court erred by declining to enforce the automatic stay provided by Federal Rule of Civil Procedure 62(a). Under that Rule, with an exception not relevant here, “no execution may issue on a judgment, nor may proceedings be taken to enforce it, until 14 days have passed after its entry.”

Apparently, mere hours after the district court’s grant of summary judgment, the ATF began the process of withdrawing Cash Cow’s access to the national firearms database—the first concrete step in the process of actually revoking an FFL. Cash Cow filed an emergency motion urging the district court “to enforce F.R.C.P. 62(a) automatic stay,” arguing that it was entitled to a 14-day window during which to maintain its FFL privileges. The ATF conceded to giving it that window to moot the motion. Nonetheless, the district court ruled on the merits, holding that ATF’s authority to revoke Cash Cow’s FFL was statutory, not the result of a judgment, and therefore that the automatic stay did not apply.

It is not clear to us what relief Cash Cow seeks by raising this challenge. Even if we wholly agreed, that would mean only that Cash Cow was entitled to a 14-day period last year during which to file an application for a stay pending appeal (which it never did). Passing on the merits of the district court’s holding at this point would bring an advisory opinion, which we cannot offer.

IV.

The district court’s grant of summary judgment and its denial of Cash Cow’s motions are affirmed.

      . Roberts v. City of Shreveport, 397 F.3d 287, 291 (5th Cir. 2005).

      . Chevron U.S.A., Inc. v. Traillour Oil Co., 987 F.2d 1138, 1146 (5th Cir. 1993).

      . Fed. R. Civ. P. 56(a).

      . Moss v. BMC Software, Inc., 610 F.3d 917, 922 (5th Cir. 2010).

      . 18 U.S.C. § 923(f)(3).

      . Duke v. Univ. of Tex. at El Paso, 729 F.2d 994, 995 (5th Cir. 1984).

      . 18 U.S.C. § 923(a).

      . Id. § 923(e).

      . Id. § 923(f)(1).

        .Id. § 923(f)(2).

        .Id. § 923(f)(3).

      . 28 C.F.R. § 0.130.

      . Arwady Hand Trucks Sales, Inc. v. Vander Werf, 507 F.Supp.2d 754, 758 (S.D. Tex. 2007); see also Stein’s, Inc. v. Blumenthal, 649 F.2d 463, 466-67 (7th Cir. 1980).

      . Arwady, 507 F.Supp.2d at 758.

      . Id. (citing Strong v. United States, 422 F.Supp.2d 712, 720 n.12 (N.D. Tex. 2006)).

      . Id. at 758-60.

        .Id. at 761.

      . Arwady, 507 F.Supp.2d at 761-62 (citations omitted).

      . Id. at 762 n.11.

      . Stein's, Inc., 649 F.2d at 467-68; see also Moreno v. Bureau of Alcohol, Tobacco, Firearms, Explosives, 113 F.Supp.3d 916, 923 (W.D. Tex. 2015); Arwady, 507 F.Supp.2d at 763 n.12.

      . 436 U.S. 658, 694-95, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978); Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th Cir. 2001).

      . 364 Fed.Appx. 58, 59 (5th Cir. 2010) (unpublished).

      . Id. at 59-60.

      . 486 Fed.Appx. 503, 505 (5th Cir. 2012) (unpublished).

        .Id. (citations omitted).

      . Fed. R. Civ. P. 62(A).


author: GREGG COSTA, Circuit Judge:

text:
    UNITED STATES of America, EX REL.; Kevin N. COLQUITT, Individually, Plaintiff-Appellant v. ABBOTT LABORATORIES, Individually and as Successor-in-Interest to Guidant Corporation; Abbott Vascular Solutions, Incorporated, formerly known as Guidant Endovascular Solutions, Incorporated, Defendants-Appellees
    No. 16-10814
    United States Court of Appeals, Fifth Circuit.
    FILED May 31, 2017

      Christopher S. Hamilton, Esq., Andrea Lynn Fitzgerald, Meagan Martin, Standly & Hamilton, L.L.P., Kirsten Marisol Castaneda, Alexander Dubose Jefferson & Townsend, L.L.P., Dallas, TX, Kelly R. Bagby, Esq., Maame Gyamfi, AARP Foundation Litigation, Andrew M. Beato, Stein Mitchell Cipollone Beato & Missner, L.L.P., Washington, DC, for Plaintiff-Appellant.
    John Caviness O’Quinn, Kirkland & Ellis, L.L.P., Washington, DC, George W. Bramblett, Jr., Esq., .Haynes & Boone, L.L.P., Dallas, TX, James F. Hurst, Andrew Alan Kassof, Esq., Counsel, Daniel Siegfried, Kirkland & Ellis, L.L.P., Chicago, IL, for Defendants-Appellees.
    Before STEWART, Chief Judge, and HIGGINBOTHAM and COSTA, Circuit Judges.
   GREGG COSTA, Circuit Judge:

Relator Kevin Colquitt lost the qui tam war against his former employer Abbott Laboratories in three battles. He pursued three False Claims Act theories based on claims submitted to Medicare by medical providers engaged in the “off-label” use of Abbott’s medical stents. A false inducement claim and a claim predicated on false certification of compliance with the Anti-Kickback Statute failed on a motion to dismiss. A false presentment claim was limited at summary judgment to periods when Colquitt worked for Abbott. The jury found against Colquitt on what was left of his false presentment claim. Colquitt argues that the motion to dismiss and motion for partial summary judgment should not have been granted. He also contends that erroneous evidentiary rulings and mistakes in instructing the jury tainted its verdict. Finding no reversible error, we affirm.

I.

Colquitt was a salesman for Guidant Corporation. He sold stents, which are little metal or plastic tubes that doctors insert inside the body’s natural tubes, like veins, arteries, or bile ducts, to shore them up. These stents had been approved by the FDA to go into bile ducts, but Guidant was helping and encouraging doctors to use them in blood vessels. Two months before Colquitt left his job, Guidant was bought by Abbott Laboratories, which had a similar practice of promoting biliary stents for vascular use. Colquitt, who learned about the False Claims Act as a night law student, brought this qui tam action against Abbott because he thought that Guidant and Abbott had defrauded Medicare by seeking FDA approval for biliary stents but then encouraging and bribing providers to use them in vascular procedures for which the providers billed Medicare.

Colquitt’s theories of fraud start with applications Guidant and Abbott made to the FDA to sell their stents. They applied under a fast track procedure for new medical devices that are substantially equivalent to devices already on the market. See Medtronic, Inc. v. Lohr, 518 U.S. 470, 478, 116 S.Ct. 2240, 135 L.Ed.2d 700 (1996). To do so, they submitted premarket notifications (usually called “510(k) notifications”) to the FDA in which they labeled their new products as biliary, rather than vascular, stents. For some time, doctors had been using biliary stents, like the new models Abbott and Guidant wanted to release, in vascular procedures. Indeed, the only stents approved for vascular use were considered outmoded and applying biliary stents in vascular work was standard medical practice. Had the companies submitted their stents for FDA approval as vascular stents, they would have been subject to the much more rigorous and lengthy “pre-market approval” process, which requires companies to prove their devices’ safety and efficacy through clinical studies. See Riegel v. Medtronic, Inc., 451 F.3d 104, 109 (2d Cir. 2006). Using stents approved for biliary use in vascular procedures is considered “off-label” use.

Colquitt helped Guidant and later Abbott sell these biliary stents for off-label use to doctors performing vascular procedures, and they taught him the tricks of the trade. He learned how they advertised the stents in journals aimed at vein doctors; he learned about training seminars, discounts, dinners, and other company freebies for doctors. They also tutored him on Medicare billing, and he saw how the companies advised doctors and hospitals on which Medicare codes to use when they performed vascular repairs with the biliary stents.

Colquitt filed a qui tam suit against Abbott, and the government declined to intervene. He alleged that Abbott and Gui-dant had violated the False Claims Act in three ways:

(1) fraudulent inducement through misrepresentations in obtaining FDA clearance for the stents;
(2) violation of the federal Anti-Kickback Statute, rendering healthcare providers’ claims certifying compliance with anti-kickback statutes false; and
(3) false presentment through promotions that caused hospitals to present Medicare claims that he contends were not eligible for payment because off-label use was not safe.

Abbott filed a combined motion to dismiss for failure to state a claim and for lack of subject matter jurisdiction due to public disclosure of the alleged fraudulent scheme. The court granted the motion to dismiss for failure to state a claim as to the Anti-Kickback allegations. It granted the motion to dismiss for want of jurisdiction as to the fraudulent inducement claim, holding that Colquitt’s information had been publicly disclosed and that he was not an original source of that information. Col-quitt’s third theory—false presentment through encouraging doctors to present fraudulent claims to Medicare—survived this motion.

Abbott later filed a motion for partial summary judgment seeking to limit this remaining claim to periods when Colquitt was actually employed by Abbott and restrict it to Guidant’s conduct, rather than Abbott’s independent conduct outside its role as Guidant’s successor in interest. Abbott argued that this limited timeframe was the only period when Colquitt could be an original source for this claim. The district court agreed.

Colquitt’s evidence at trial centered on the many ways that Guidant promoted its stents for off-label use. Abbott’s presentation was aimed at an open secret theory: it emphasized that everyone involved—the FDA, Medicare, doctors and hospitals— knew that using biliary stents in vascular work was standard practice and commonly reimbursed by Medicare. It offered testimony from physicians and a former Medicare officer. The jury returned a verdict against Colquitt who unsuccessfully sought a new trial before bringing this appeal.

II.

The district court dismissed Colquitt’s Anti-Kickback allegations on the ground that he had failed to satisfy the heightened pleading requirements for fraud claims. See Fed. R. Civ. P. 9(b). The Anti-Kickback Statute makes it a crime to pay someone to “refer an individual to a person for the furnishing or arranging for the furnishing of any item or service for which payment may be made in whole or in part under a Federal health care program.” 42 U.S.C. § 1320a-7b(b)(2)(A). If a provider has violated the statute, then claims he or she submits to Medicare may be false claims when the provider certified compliance with the kickback statute in submitting a claim. See United States ex rel. Thompson v. Columbia/HCA Healthcare Corp., 125 F.3d 899, 902 (5th Cir. 1997).

As the False Claims Act is about fraud, claims asserted under it must comply with Rule 9(b)’s' heightened pleading standard. Id. at 903. “In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake.” Fed R. Crv. P. 9(b). This requires, at a minimum, that a plaintiff plead the “who, what, when, where, and how” of the alleged fraud. Williams v. WMX Tech., Inc., 112 F.3d 175, 179 (5th Cir. 1997).

In dismissing Abbott’s kickback allegations, the district court faulted Colquitt for not describing “any details of the actual claims made by the physicians or hospitals that allegedly received kickbacks.” It found that although Colquitt had identified some specific hospitals and doctors that allegedly received kickbacks, he did not plead that any of these hospitals or doctors signed up to be Medicare providers or submitted certified claims for reimbursement for procedures using Abbott’s stents.

- This may have been too rigid an application of Rule 9(b). The general rule is that a plaintiff must plead details such as the time and place of the false representations. United States ex rel. Rafizadeh v. Cont’l Common, Inc., 553 F.3d 869, 873 (5th Cir. 2008). But United States ex rel. Grubbs v. Kanneganti, 565 F.3d 180 (5th Cir. 2009), sounded a note of caution about its application in qui tam suits: “[T]he ‘time, place, contents, and identity’ standard is not a straitjacket for Rule 9(b). Rather, the rule is context specific and flexible and must remain so to achieve the remedial purpose of the False Claim Act.” Id. at 190. The details of particular claims submitted to the government may only be attainable for relators through discovery, which a dismissal on the pleadings forestalls altogether. See id. at 191 (“While Rule 9(b) stands as a hurdle preventing discovery when a complaint fails to sufficiently define its claims, it does not do away with discovery altogether by allowing access to discovery only when,the complaint already contains all the information necessary to succeed at trial.”). Grubbs thus concluded that “a relator’s complaint, if it cannot allege the details of an actually submitted false claim, may nevertheless survive by alleging particular details of a scheme to submit false claims paired with reliable indicia that lead to a strong inference that claims were actually submitted.” Id.

A strong inference that the named hospitals submitted claims to Medicare for vascular procedures using biliary stents could likely be drawn from Colquitt’s allegations. Nearly every hospital in America participates in Medicare and would most likely have billed Medicare had they performed procedures using Abbott’s stents on a person over age 65. The complaint makes extensive allegations about that off-label use being common. And Colquitt alleged that the claims carried a certification of compliance with the Anti-Kickback Statute.

But Colquitt’s allegations fail at the first part of the Grubbs standard: it does not allege the details of the scheme with sufficient particularity. It devotes a single, vague paragraph to the alleged kickback scheme, mentioning defendants’ programs that provide “significant volume discounts and rebates to hospitals that could not be attained based solely on biliary use, but required substantial vascular use of the stents in order to receive the discount or rebate.” That, along with reference to “vascular specialists” who received dinners, training, and fellowships, is the extent of the details alleged about the scheme. No specifics about the discounts and rebates are provided. We are not told that a particular hospital (including the only two that are identified in the complaint, Valley Hospital Medical Center and Shady Grove Adventist Hospital) ever achieved these unspecified thresholds through off-label use of the stents. No particulars are alleged to show that the unidentified doctors who received the ill-defined benefits caused the hospital to use Abbott stents. In short, the complaint never links the alleged carrots to the purchase and use of the stents at either of the hospitals. Unlike details about the Medicare claims that ended up being submitted, much of this information would be known to a relator with original information about an unlawful kickback scheme. Rule 9(b) was not satisfied.

III.

Colquitt’s false inducement claim— that Medicare paying claims for stents used in vascular procedures was tainted by Abbott’s making false statements about their intended use when obtaining FDA approval—was dismissed based on the public disclosure bar. That bar applies “whenever qui tam relators bring a suit based on publically available information.” United, States ex rel. Jamison v. McKesson Corp., 649 F.3d 322, 327 (5th Cir. 2011). There is an exception if the relator is an original source of the information. 31 U.S.C. § 3730(e)(4)(A). Together, the public disclosure bar and its original source exception calibrate the incentives for individuals to bring qui tam suits under the False Claims Act. When the facts showing fraud are veiled, relators who discover them should receive a reward for bringing claims. Even when the facts are publicly disclosed, a relator who is an original source may still bring something of value to the table and thus deserves to benefit. In other cases, the government—for whom the public disclosure bar is not an impediment to suit—either has notice of the wrongdoing or gains nothing from a relator with indirect knowledge of the same facts. Allowing private individuals to sue in those situations would provide an unnecessary windfall. United States ex rel. Branch Consultants v. Allstate Ins. Co., 560 F.3d 371, 376 (5th Cir. 2009) (discussing repeated attempts by Congress to balance competing goals of encouraging whistle-blowers while discouraging parasitic lawsuits); United States ex rel. Springfield Terminal Ry. Co. v. Quinn, 14 F.3d 645, 649-51 (D.C. Cir. 1994) (narrating the history of False Claims Act litigation that led to the pássage of the public disclosure bar as an attempt to balance the competing interests of encouraging whistleblowing while preventing “parasitic” suits).

We apply a three-part test to determine whether this bar applies. It asks “1) whether there has been a ‘public disclosure’ of allegations or transactions, 2) whether the qui tam action is ‘based upon’ such publicly disclosed allegations, and 3) if so, whether the relator is the ‘original source’ of the information.” Fed. Recovery Servs., Inc. v. United States, 72 F.3d 447, 450 (5th Cir. 1995).

Although Abbott invoked the public disclosure bar through a motion to dismiss, the district court correctly decided it as a motion for summary judgment and considered evidence outside of the pleadings. See Jamison, 649 F.3d at 326 (explaining that public disclosure question is intertwined with the merits and so properly treated as motion for summary judgment when brought under a motion to dismiss). Following this procedure, it is Abbott’s burden to “first point to documents plausibly containing allegations or transactions on which [the realtor’s] complaint is based.” Id. at 327. To survive summary judgment, the relator must then produce evidence “to show that there is a genuine issue of material fact as to whether this action was based on those disclosures” or that he is an original source for the allegations in his compliant. Id.

Abbott has argued, and the district court agreed, that the 510(k) summaries issued by the FDA in connection with its approval of the stents demonstrated on their face that the information supporting Colquitt’s claim was publically available. As evidence that FDA approval had been sought in bad faith, Colquitt pointed in his complaint to the fact that “more than 99 percent of Defendants’ devices are too large or too small to fit the biliary tree.” This information is in the public 510(k) summaries, which must include the devices’ physical properties such as size. See 21 C.F.R. § 807.92(a)(4).

The district court saw that Colquitt hoisted himself with his own petard. His complaint relies on the dimensions of the stents to show that the 510(k) notifications submitted to the FDA were fraudulent. As the allegations recognize, the 510(k) summaries contained this information about the stents’ dimensions. These public papers were all that one would have needed to discover the purported fraud—Abbott must have intended the stents for vascular use, contrary to its representations in its 510(k) notices, because the stents could not fit in the biliary tree but would fit arteries and veins. As one court has put it, “[i]n order to disclose the fraudulent transaction publicly, the combination of X and Y must be revealed, from which readers or listeners may infer Z, ie., the conclusion that fraud has been committed.” Springfield, Terminal, 14 F.3d at 654. In this ease, X is the fact that Abbott presented the devices to the FDA as biliary stents, Y is the fact that most of the stents would not fit in bile ducts but would visit in the vascular tree, and Z is the conclusion that Abbott misstated the intended use of the stents. See Little v. Shell Exploration & Prod. Co., 690 F.3d 282, 293 (5th Cir. 2012) (“A guiding query is whether ‘one could have produced the substance of the complaint merely by synthesizing the public disclosures’ description’ of a scheme.” (quoting United States ex rel. Jamison v. McKesson Corp., 649 F.3d 322, 331 (5th Cir. 2011))).

Colquitt asserts that only some of the 510(k) summaries disclosed the sizing information for the stents. This argument ignores Federal Recovery Services Inc. v. United States, 72 F.3d 447 (5th Cir. 1995). That relator insisted, like Colquitt, that “its investigation unearthed additional instances of fraudulent conduct.” 72 F.3d at 451. But contributing more of the same does not change the public character of a relator’s allegations: Colquitt “cannot avoid the jurisdictional bar simply by adding other claims that are substantively identical to those previously disclosed.” Id.

Colquitt emphasized at oral argument that the 510(k) summaries did not say anything about catheter length—another giveaway as to the true purpose of the stents. Citing his complaint, he asserts that his “allegations regarding sizing as evidence of Defendants’ true intended use in peripheral vascular procedures includes catheter length as a critical component.” It is true that the complaint says that biliary catheters should be less than 50 centimeters or greater than 170 centimeters while Guidant’s stents came with a 75 centimeter catheter. But the fact that the catheters were not the correct size for the biliary system is in no way “critical” to perceiving that the stents themselves also had the wrong dimensions for biliary use. Both clues revealing the off-label purpose are presented as independent faults in Col-quitt’s pleadings.

Colquitt contends that even if the information supporting his fraudulent inducement claim was publicly disclosed, he was an original source of this information. To be an original source, a person must have direct and independent knowledge of the information on which the allegations are based. Little, 690 F.3d at 292. If someone relies upon the public disclosures at issue, then his or her knowledge is not independent. United States ex rel. Fried v. West Indep. Sch. Dist., 527 F.3d 439, 442-43 (5th Cir. 2008). Colquitt attempts to show that his allegations derive from what he observed while working for Abbott and not just the 510(k) documents. What he observed, however, were efforts by Guidant to promote the biliary stents for vascular use. This is information bearing on his false presentment claim discussed below, not information about the alleged misrepresentations to the FDA in the approval process that form the basis of his fraudulent inducement claim. Col-quitt had no involvement in, and thus no original information about, the FDA approval process.

The district court correctly dismissed the false inducement claim under the public disclosure bar.

IV.

A.

When it ruled on Abbott’s motion to dismiss, the district court stayed its hand as to Colquitt’s false presentment claim. Unlike his false inducement claim which was based on alleged false statements made to the FDA, Colquitt’s false presentment claim was based on the accusation that Abbott’s marketing schemes caused healthcare providers to submit false claims to Medicare for its stents. The court found that although the facts about Abbott’s promotion of the stents had been publicly disclosed (in the 510(k) summaries, advertisements Abbott placed in medical journals, and an FDA warning letter), he was an original source of these allegations.

The court explained that Colquitt’s allegations were based in part on his independent and direct knowledge. Regarding independence, the district court remarked that much of what Colquitt brought to the table was not included in the warning letter, advertisements, or 510(k) documentation. It stressed that he knew the inside baseball: he had training to show physicians how to use the stents off-label and got bonuses for off-label promotion. As to directness, the court also emphasized that he gained his knowledge firsthand as an Abbott employee.

When Abbott later moved for partial summary judgment, it tailored its motion to the district court’s previous ruling and asserted that Colquitt was not an original source as to periods before and after his employment and as to Abbott Laboratories proper, that is, other than in its role as a successor in interest to Guidant. The court accepted this argument and found Col-quitt’s evidence to the contrary to be too thin to allow a jury to infer that he was an original source.

Colquitt now argues not only that he was an original source but also challenges the court’s earlier public disclosure finding made in connection with Abbott’s motion to dismiss. In the latter respect, Colquitt’s arguments rehearse the position he took on his false inducement claim. He insists that “the mere promotion of the stents for off-label use was only one component” of his false presentment claim and does not show his claim’s other components like fraudulent intent or materiality. See Little, 690 F.3d at 293 (holding that courts conducting public disclosure analysis must compare the scope and breadth of relators allegations with the public disclosures).

What Colquitt’s false presentment claim boils down to, however, is that Abbott was pushing stents for vascular use that it had pretended to the FDA were for biliary use. Here again, “one could have produced the substance of the complaint merely by synthesizing the public disclosures’ description.” McKesson, 649 F.3d at 331. The district court noted correctly that these facts were all disclosed by the FDA warning letter about off-label promotion, the advertisements in medical journals, and the 510(k) summaries.

Returning to the original source question, Colquitt argues that he presented sufficient evidence to at least raise a fact issue for a jury. He directs the court’s attention to evidence that he contends show that he gained direct knowledge of off-label promotion before and after his employment and of Abbott’s parallel efforts before its acquisition of Guidant. He addresses each category of evidence separately.

Regarding what occurred before he arrived at Guidant, Colquitt asserts that when he arrived at Guidant, he encountered an ongoing plan to promote biliary stents for vascular use. He says that his training made clear to him that he was participating in an established effort and as he worked at Guidant, he found many of the pieces of the scheme already in place, such as consignments of biliary stents with vascular doctors.

Colquitt, however, overstates the evidence he offered to defeat summary judgment. Colquitt’s affidavit and the Powerpoint presentation do make it unmistakable that Colquitt was hired and trained to sell biliary stents for vascular use and that Guidant wanted to grow its existing business in this regard. Likewise, the evidence supports Colquitt’s assertions regarding consignments. He also presented evidence, in the' form of a training Powerpoint, indicating that Gui-dant had a coding guide for providers and billing staff covering use by vascular surgeons. What a closer look at the evidence, including the contrary evidence offered by Abbott in support of its motion, shows, however, is that Colquitt could only claim that he had the impression that off-label promotion was taking place before his hiring. He did not have unmediated—that -is to say, direct—knowledge of the promotion of stents for off-label use. See United States ex rel. Fried v. W. Indep. Sch. Dist., 527 F.3d 439, 442-43 (5th Cir. 2008) (“In order to be ‘direct,’ the information must be firsthand knowledge.”); United States ex rel. Stinson, Lyons, Gerlin & Bustamante, P.A. v. Prudential Ins. Co., 944 F.2d 1149, 1160 (3d Cir. 1991) (defining “direct” to mean “marked by absence of an intervening agency, instrumentality, or influence”); United States ex rel. Findley v. FPC-Boron Emps. Club, 105 F.3d 675, 690 (D.C. Cir. 1997); (defining it to mean “firsthand”).

It must be remembered that original source is a subsidiary question that allows a relator to proceed despite the fact that the facts underlying his allegations were publicly disclosed. When the “investigation or experience of the relator ... translate^] into some additional compelling fact, or ... demonstrate^] a new and undisclosed relationship between disclosed facts,” the relator may proceed as an original source despite public disclosure. United States ex rel. Reagan v. E. Tex. Med. Ctr. Reg’l Healthcare Sys., 384 F.3d 168, 179 (5th Cir. 2004). That is because a relator who brings new evidence of wrongdoing that may already be in the public domain still strengthens the government’s case—what more compelling evidence is there than the testimony of a witness providing an insider’s account of the misconduct?—and thus should be allowed to share in the recovery she helped achieve. The district court shepherded the false presentment claims past Abbott’s motion to dismiss for precisely this reason: Col-quitt had experienced off-label promotion firsthand as Guidant’s instrument for that purpose. This rationale does not support treating Colquitt as an original source for promotion that occurred prior to his employment.

The same fault bedevils the evidence that Colquitt identifies concerning his postemployment claims and claims against Abbott Laboratories apart from the actions of Guidant. He points to what he heard from a former coworker, who left Guidant to work for Abbott before the acquisition, and from an Abbott counterpart, but this is secondhand. See United States ex rel. Saldivar v. Fresenius Med. Care Holdings, Inc., 841 F.3d 927, 936 (11th Cir. 2016) (“Saldivar [the relator] heard about overfill billing practices from others. This likewise is indirect.”). He also highlights an Abbott report he received containing sales numbers and goals, but as the district court noted, this only showed off-label sales and not the allegedly improper off-label promotion that he observed as a Guidant employee. For periods after he quit the company, Colquitt argues from information he discovered through litigation or from conversations with former co-workers. This is not direct, independent knowledge but is either secondhand, see Fried, 527 F.3d at 442-43, or based on public disclosures. The district court did not err in limiting the time frame of the false presentment theory presented to the jury.

B.

Colquitt argues that the jury’s rejection of that claim was marred by the erroneous exclusion of two pieces of evidence. We review those evidentiary rulings for abuse of discretion. Baisden v. I'm Ready Prods., Inc., 693 F.3d 491, 508 (5th Cir. 2012). We will reverse only when an erroneous ruling had a substantial effect on the trial’s outcome. Bocanegra v. Vicmar Servs., Inc., 320 F.3d 581, 584 (5th Cir. 2003).

Abbott’s defense relied on an open-secret theory, that everyone, including the government, knew that biliary stents were regularly used in veins and arteries. Part of Abbott’s evidence was testimony about a tradeshow where FDA officials were present and such use of the stents was openly discussed. As rebuttal evidence, Colquitt wanted to show the jury a warning letter that the FDA sent to Abbott in December 2007 rebuking it for off-label promotion as well as a compliance letter Abbott sent in return detailing steps it would take to mend its ways. The district court ruled that the evidence was irrelevant because it described events that occurred after Colquitt’s employment ended and thus outside the range of false claims the jury was allowed to consider. Colquitt offered the letters again after Abbott elicited testimony that the FDA continued to allow the sale of the stents after Colquitt’s suit was filed, but the district court ruled that the evidence was irrelevant and prejudicial because it was not probative of the attitudes of Medicare officials.

Colquitt says that excluding this evidence left him “unable to rebut Abbott’s extrinsic evidence about the Government’s knowledge and its arguments that the evidence meant Abbott had done nothing .wrong.” Abbott’s objection, sustained by the district court, was that the evidence was irrelevant and prejudicial because it did not “have anything to do with whether [Medicare] believed that biliary stents were rightly covered.” District courts enjoy wide discretion in making the relevancy and prejudice assessments that Rules 401 and 403 require. Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 384, 128 S.Ct. 1140, 170 L.Ed.2d 1 (2008). The rationale of the objection—that the key issue was Medicare’s policies, not those of the FDA, and a focus on the latter could confuse the jury about its ultimate focus—is sensible. The district court did not abuse its discretion by excluding the evidence. In any event, excluding the evidence did not leave Colquitt unable to rebut Abbott’s open-secret position. At other times during trial, he was able to offer a different FDA letter expressing concerns about off-label promotion and had an expert tell the jury that the letter showed FDA did not condone and was trying to stop off-label promotion of the stents. Any prejudice to Colquitt was also minimized by a jury instruction to the effect that FDA attendance at conferences did not indicate that the FDA approved off-label marketing.

Colquitt also attacks the district court’s decision to exclude evidence that a Guidant subsidiary, Endovascular Solutions, Inc., had earlier pleaded guilty to felony charges of making false statements to the FDA and failing to report bad outcomes that occurred with an aortic stent called the Ancure. The Ancure was not one of the biliary stents at issue in the trial. The district court granted Abbott’s motion in limine to exclude the convictions on the grounds that they were too prejudicial and old.

Colquitt twice asked the district court to reconsider the limine ruling as that procedure contemplates. He first did so when Abbott’s counsel called Guidant a “great, great company” and said that it gave the FDA every piece of data relevant to recalls of the biliary stents. Colquitt tried again when an Abbott witness, Richard Rapoza, testified that Guidant complied with FDA reporting requirements for its stents from 2004 to 2006.

Colquitt’s theory for admission of the evidence is unclear. The strongest argument would seem to be that this testimony made Guidant’s compliance with the FDA an issue, and Colquitt was entitled to rebut that (it would not be admissible as general evidence of Guidant’s bad character). Whether these statements had fully opened the door to impeachment via the convictions or just resulted in a slight crack is one of those evidentiary rulings on which the trial court was likely entitled to rule either way. Indeed, the district court noted the closeness of the question, warning Abbott’s counsel after opening statement that he was close to the point at which the court would change its pretrial ruling. As the trial court was in the best position to know how this issue fit within the 12-day trial, we find no abuse of discretion in its ruling that the convictions should not be used to impeach statements that were narrowly framed to encompass a timeframe of FDA compliance that included the biliary stents on trial but excluded those resulting in the earlier conviction.

C.

Colquitt also asserts that there should be a new trial because the court erred by not giving two jury instructions he requested. A trial court’s decision not to accept a proposed jury instruction is generally reviewed for abuse of discretion. Kanida v. Gulf Coast Med. Pers. LP, 363 F.3d 568, 578 (5th Cir. 2004). But insofar as the legal accuracy of an instruction is at issue, we review de novo. GE Capital Commercial, Inc. v. Worthington Nat’l Bank, 754 F.3d 297, 301 (5th Cir. 2014). We will reverse only if the declined instruction was a substantially correct statement of law, not substantially covered in the charge as a whole, and concerned an important point at trial such that failure to give it seriously impaired the offering party’s ability to present a claim or defense. Kanida, 363 F.3d at 578.

Colquitt’s false presentment claim was based on the theory that Abbott violated the FCA by causing doctors and hospitals to submit claims to Medicare for vascular procedures using biliary stents that were ineligible for payment. Because Medicare does not pay for devices that are not reasonable and necessary for medical treatment, 42 U.S.C. § 1395y(a)(l)(A), the court instructed the jury that “no payment may be made ... for any expenses incurred for items or services ... [which] are not reasonable and necessary for the diagnosis of illness or injury....” Colquitt told the court that this was not enough guidance for the jury and proposed the following instruction:

For an item or service to be considered reasonable and necessary, the item or service must be:
1) safe and effective;
2) not experimental or investigational; and
3) appropriate.
The third element (appropriateness) is not at issue in this case. If an item or service fails to meet the first or second element, it is not eligible for payment under Medicare.

Colquitt asserts that this was a correct statement of the law because it corresponded with language in the Medicare Program Integrity Manual issued to Medicare’s payment contractors. The weight he gives the manual is misplaced, however, as Medicare itself has denied that it has the force of law. See Douglas v. Centers for Medicare and Medicaid Servs., DAB No. CR2406, 2011 WL 3578669, at *5 (Departmental App. Bd. H.H.S., Aug. 3, 2011). Moreover, Colquitt does not otherwise cite statutes, regulations, or caselaw sufficient to show that his proposed definition of “reasonable and necessary” reflects the law; he has thus not shown that the district court abused its discretion by rejecting the instruction he proposed.

Colquitt also unsuccessfully requested this instruction, which he thought relevant to Abbott’s open-secrets defense:

You are instructed that, even if certain United States Government personnel knew the true facts, such knowledge is not a defense to Relator’s claims under the False Claims Act. Even if one United States Government employee knew the truth does not mean that Defendants were authorized to make false statements or claims. Defendants had an obligation to tell the truth, and a failure to do so is not excused by an allegation that one or more United States Government employees knew that Defendants’ statements were false or that claims for non-coronary vascular procedures using Defendants’ biliary stents were false. In other words, if the Defendants knew that their statements or claims for procedures using their biliary stents were false, Government knowledge of the fact is not a defense on the issue of liability.

The instruction misstates the law; government knowledge can be a defense to an FCA suit. See United States v. Bollinger Shipyards, Inc., 775 F.3d 255, 263 (5th Cir. 2014). In Bollinger, the court said that “under some circumstances, the government’s knowledge of the falsity of a statement or claim can defeat FCA liability on the ground that the claimant did not act ‘knowingly,’ because the claimant knew that the government knew of the falsity of the statements and was willing to pay anyway.” Id. (quoting United States v. Southland Mgmt. Corp., 326 F.3d 669, 682 (5th Cir. 2003) (en banc) (Jones, J., specially concurring)).

Colquitt attempts to dodge Bollinger by arguing that “[i]f Abbott knew the claims were false, government knowledge is not relevant.” This line of thinking draws support from the principle that scienter is established for FCA purposes by showing knowledge of the falsity of the statement at issue, without a requirement of intent to defraud. See id. at 259. Nonetheless, the logic of the government knowledge “defense” is that there is no scienter when the defendant knows—not just that the statements are false—but that the government knows that the statements are false. See id. at 263; Southland, 326 F.3d at 682 (Jones, J., specially concurring) (“The government’s knowledge and acquiescence in its contractor’s actions in many of these cases was ‘highly relevant,’ to show that the contractor did not submit payment claims in deliberate ignorance or reckless disregard of their truth or falsity.” (citation omitted)). We can see Col-quitt attempting to work around Bollinger with the language he proposed—“if the Defendants knew that their statements or claims for procedures using their biliary stents were false, Government knowledge of the fact is not a defense on the issue of liability”—but the law shows that this is half-true at best. The instruction still falters because government knowledge can negate liability when the defendant knew not only that the statements at issue were false, but that the government knew it as well. See United States ex rel. Durcholz v. FKW Inc., 189 F.3d 542, 544-45 (7th Cir. 1999) (“The government’s prior knowledge of an allegedly false claim can vitiate a FCA action. If the government knows and approves of the particulars of a claim for payment before that claim is presented, the presenter cannot be said to have knowingly presented a fraudulent or false claim.” (citations omitted)). The district court did not abuse its discretion in rejecting these instructions.

* * *

The judgment of the district court is AFFIRMED.

      . At the time, the public disclosure bar was jurisdictional. 31 U.S.C. § 3730(e)(4)(A) (2006). Congress amended the statute in 2010 so that this is no longer the case. See Abbott v. BP Exploration & Prod., Inc., 851 F.3d 384, 387 n.2 (5th Cir. 2017) (31 U.S.C. § 3730(e)(4)(A)).

      . Colquitt invokes Universal Health Services., Inc. v. United. States ex rel. Escobar,-U.S.-, 136 S.Cl. 1989, 195 L.Ed.2d 348 (2016), and its holding that an implied certification of compliance is sufficient for FCA liability. 136 S.Ct. at 2001. We do not, however, find his anti-kickback allegations insufficient based on an absence of certification.

      . The district court expressed hesitation about whether ads in specially medical journals should be considered disclosures in the news media. On appeal, Colquitt does not challenge the district court’s conclusion that such advertisements are properly considered as disclosures in the news media. See generally Schindler Elevator Corp. v. United States ex rel. Kirk, 563 U.S. 401, 131 S.Ct. 1885, 1887, 179 L.Ed.2d 825 (2011) (discussing meaning of "news media”). As this issue was not contested on appeal, our decision should not be construed as endorsing a particular interpretation of "news media” in FCA cases.

      . Bollinger notes it is "inaptly named because it is not a statutory defense to FCA liability but a means by which the defendant can rebut the government's assertion of the ‘knowing presentation of a false claim.” 775 F.3d at 263.


author: JAMES L. DENNIS, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee v. Brenton Thomas MASSEY, Defendant-Appellant
    No. 16-10438
    United States Court of Appeals, Fifth Circuit.
    FILED May 31, 2017

      Gail A. Hayworth, James Wesley Hendrix, Assistant U.S. Attorney, U.S. Attorney’s Office, Northern District of Texas, Dallas, TX, for Plaintiff-Appellee.
    Brett Evan Ordiway, Esq., Sorrels, Udashen & Anton, Dallas, TX, for Defendant-Appellant.
    Before WIENER, DENNIS, and HAYNES, Circuit Judges.
   JAMES L. DENNIS, Circuit Judge:

Brenton Thomas Massey pleaded guilty to knowingly possessing a firearm after having been convicted of a felony, in violation of 18 U.S.C. § 922(g)(1). Massey’s pre-sentence report (PSR) determined that he had three prior convictions for violent felonies or serious drug offenses. The Government sought an enhanced penalty under the Armed Career Criminal Act (ACCA), which provides that a person who violates § 922(g)(1) and who “has three previous convictions” for “a violent felony or a serious drug offense ... committed on occasions different from one another” shall be imprisoned for a minimum of fifteen years. § 924(e)(1). At the sentencing hearing, Massey did not dispute that his two drug convictions were “serious drug offenses” under the ACCA, but he objected to counting his Texas felony conviction as a “violent felony.” He therefore argued that the normal ten-year maximum sentence for a violation of § 922(g)(1) applied to his conviction. See § 924(a)(2).

Massey’s felony conviction was for ■violation of section 38.14 of the Texas Penal Code, which, in pertinent part, provides:

A person commits an offense if the person intentionally or knowingly and with force takes or attempts to take from a peace officer, federal special investigator, employee or official of a correctional facility, parole officer, community supervision and corrections department officer, or commissioned security officer the officer’s, investigator’s, employee’s, or official’s firearm, nightstick, stun gun, or personal protection chemical dispensing device with the intention of harming the officer, investigator, employee, or official or a third person.

Under the ACCA, “violent felony” is defined in relevant part as “any crime punishable by imprisonment for a term exceeding one year” that “has as an element the use, attempted use, or threatened use of physical force against the person of another.” § 924(e)(2)(B)®. The district court concluded that section 38.14 contained such an element, and accordingly sentenced Massey under the ACCA to a prison term of fifteen years and eight months. Massey appealed.

In Johnson v. United States, 559 U.S. 133, 140, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010), the Supreme Court held that “physical force” in the statutory definition of “violent felony” means “violent force— that is, force capable of causing physical pain or injury to another person.” On appeal, Massey argues that a violation of section 38.14 of the Texas Penal Code is not a “violent felony” under the ACCA because, he asserts, under Texas law the “force” required for its commission is less than that required by Johnson. We review the district court’s determination that a prior offense constitutes a violent felony under the ACCA de novo. United States v. Fuller, 453 F.3d 274, 278 (5th Cir. 2006).

In support of his position, Massey points to Dobbs v. State, 434 S.W.3d 166 (Tex. Crim. App. 2014), in which the Texas Court of Criminal Appeals (TCCA) held that the defendant, who threatened to shoot himself as officers approached him, could not reasonably be said to have used “force against a peace officer or another” within the meaning of the resisting arrest statute, section 38.03 of the Texas Penal Code. In so holding, the TCCA considered a dictionary definition of “force”: “ ‘violence, compulsion, or constraint exerted upon or against a person or thing.’ ” Id. at 171 (quoting Merriam-Webster’s Collegiate Dictionary 455 (10th ed. 1996)); see also Finley v. State, 484 S.W.3d 926, 927-28 (Tex. Crim. App. 2016) (citing and applying the Dobbs definition of “force” to affirm a defendant’s conviction of resisting arrest under section 38.03). Relying on this definition, Massey argues that “ ‘[floree’ under the Texas Penal Code encompasses any amount of force ... not just force capable of causing physical pain or injury.”

Massey’s argument is not persuasive for several reasons. First, the TCCA’s decisions in Dobbs and in Finley did not definitively calibrate the amount of force required for a violation of resisting arrest under section 38.03. The decisions in Dobbs and Finley turned on whether the defendant’s actions were “against” a police officer, rather than on whether his actions were sufficiently forceful. 434 S.W.3d at 173; 484 S.W.3d at 928. It is not clear from either decision that “force” defined as “violence, compulsion, or constraint exerted upon or against a person or thing” is less than physical force as defined by Johnson. And, significantly, there is no indication in either decision that the definition of force was intended to apply outside of section 38.03.

Furthermore, even if, as Massey argues, section 38.14 could be violated with the use of less than “physical force,” that would not rule out the possibility that the offense “has as an element the ... threatened use of physical force against the person of another.” See § 924(e)(2)(B)(i) (emphasis added). The Government argues that it does. In United States v. Garcia-Figueroa, 753 F.3d 179, 186 (5th Cir. 2014), we held that the Florida offense of “without authorization, tak[ing] a firearm from a law enforcement officer lawfully engaged in law enforcement duties”—even if it does not necessarily involve the use of “physical force”—“create[s] a sufficient ‘threatened use of [physical] force’ to qualify” as a crime that has as an element the use, attempted use, or threatened use of physical force” against the person of another. The Government asserts that the same logic should apply in the present case. Massey does not respond to the Government’s contention and fails to argue that section 38.14 is distinguishable from the Florida statute at issue in Garcia-Figueroa. We therefore conclude that section 38.14 has as an element the “threatened use of force” and qualifies as a violent felony under the ACCA.

The district court’s judgment is AFFIRMED.

      .The Government contends that our decision in United States v. Avalos-Martinez, 700 F.3d 148 (5th Cir. 2012), is dispositive. In that case, the defendant argued that section 38.14 is not a "crime of violence” for purposes of enhancement of sentence under section 2L1.2(b)(1)(A)(ii) of the sentencing guidelines because the element of force in the Texas statute encompasses not only force directed against a person, but also force directed against property. Id. at 151. We rejected this argument, holding that section 38.14 does not criminalize the use of force against property. Id. at 152. However, Massey's argument that a defendant may attempt to take an officer's weapon under the Texas Penal Code without using “physical force” as defined by Johnson was not presented or resolved by Avalos-Martinez. Massey’s argument thus is not foreclosed by Avalos-Martinez.

      . The Government argues that review should be for plain error because Massey’s argument on appeal differs from the argument he raised below. However, we find that Massey’s argument on appeal is a refinement of his district court argument rather than a new argument. Consequently, Massey has preserved the argument for appeal, and our review is de novo. See, e.g., United States v. Garcia-Perez, 779 F.3d 278, 281-82 (5th Cir. 2015) (de novo review applied because defendant merely refined on appeal his argument that prior conviction did not qualify as crime of violence).

      . The TCCA did suggest that section 38.03 requires only "some kind of force,” Dobbs, 434 S.W.3d at 171, or "some sort of force,” Finley, 484 S.W.3d at 928.

      . However, as we noted in Avalos-Martinez, "our interpretation of this Texas statute would be trumped by a contrary interpretation by Texas courts.” 700 F.3d at 152.