text:
    Eddie Joseph BROWN, Plaintiff-Appellant v. April MEGG; Dr. Ron Woodall; Wexford Health, Defendants-Appellees
    No. 15-60706
    United States Court of Appeals, Fifth Circuit.
    FILED May 15, 2017

      Eddie Joseph Brown, Pro se.
    Vardaman Kimball Smith, III, Bryan Nelson, P.A., Hattiesburg, MS, for Defendants-Appellees.
    Before STEWART, Chief Judge, and HIGGINBOTHAM and COSTA, Circuit Judges.
   GREGG COSTA, Circuit Judge:

Under the Prison Litigation Reform Act (PLRA), a third strike bars a prisoner from proceeding in forma pauperis unless “the prisoner is under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). A strike issues when a prisoner’s-action is dismissed as frivolous, malicious, or for failure to state a claim. Id. When the action is dismissed entirely on one of these grounds, the strike inquiry is easy enough. But what of an action that is dismissed partly on section 1915(g) grounds and partly on other grounds? This case poses that question as some of Eddie Brown’s allegations were dismissed for failure to state a claim while others were adequately pleaded but failed at summary judgment. We affirm those merits rulings but conclude that a strike does not issue when only some claims are dismissed on section 1915(g) grounds.

I.

Brown suddenly began experiencing severe stomach pain on July 14, 2014. With the help of inmates and prison staff, he submitted a request for medical attention. Brown was taken to the infirmary, operated by Wexford Health, where he was seen within a couple hours by Dr. Ron Woodall.

Brown asserts that Woodall was hostile and dismissive of his complaints, purportedly telling Brown “he was full of shit.” But he admits that Woodall ordered an x-ray and blood work, both of which produced normal results. Brown further concedes that Woodall prescribed him zantac and a gastrointestinal cocktail. These medications treat conditions, like ulcers, that may cause a person’s stomach to produce top much acid. Brown was discharged from the infirmary the same day.

Brown alleges that over the next two weeks he was incessantly in pain and made various unanswered requests to see doctors. Supporting Brown’s account are three affidavits by inmates who purport to have seen Brown in pain and helped him make requests for medical attention. Brown also offers forms requesting treatment dated July 18, 21, 23, and 25. None but the last form, however, are marked received by medical staff.

Defendants deny knowledge of any such requests. Woodall says there is no record of any sick call request between July 14 and July 29 and that he never refused to see or treat Brown. April Meggs, the nurse in charge of staffing for Wexford, states that she never saw Brown as a patient nor was she ever responsible for his health.

Brown next visited the infirmary on July 29. Dr. Charmaine McCleave ordered an x-ray, IV fluids, and blood work. Brown’s x-ray again indicated no abnormalities. The next day, however, after again examining Brown and reviewing his lab results, McCleave transferred Brown to a hospital. There it was discovered that Brown had a hole in his stomach, caused by an ulcer, which was allowing acids to secrete into his internal tissue. Brown successfully underwent corrective surgery.

Brown was discharged and returned to prison with instructions to take pain medications for up to ten days, as necessary, and to discontinue the use of zantac. Woo-dall and McCleave gave him pain medications for fifteen days. Brown’s medical records reflect that the doctors reduced the potency of Brown’s pain medications as his pain subsided. The doctors did not, however, discontinue Brown’s zantac prescription.

Brown brought this section 1988 lawsuit against Woodall, Meggs, and Wexford, alleging they were deliberately indifferent to his serious medical condition. In a single order, the magistrate judge rejected all of Brown’s claims. The order held that the allegations against Meggs in her supervisory capacity and against Wexford for the acts of its employees failed to state a claim. It also granted summary judgment finding insufficient evidence to support the claims against Woodall and the contention that Meggs was responsible for the delay in his treatment. Because some of Brown’s allegations were dismissed, for failure to state a claim, the court assessed a section 1915(g) strike.

II.

We agree that Brown’s claims were properly dismissed.

Brown does not contest with much force that his allegations against Meggs and Wexford fail to state a claim. He alleges no more than that Meggs and Wexford ought to be liable for the acts,of their subordinates. But without more, Meggs’s supervisory role does not make her so liable. Thompkins v. Belt, 828 F.2d 298, 303-04 (5th Cir. 1987). Wexford likewise is not automatically liable for the acts of its employees. Kohler v. Englade, 470 F.3d 1104, 1114-15 (5th Cir. 2006) (holding that re-spondeat superior liability does not attach in section 1983 claims). And Brown does not identify any Wexford policy, practice, or custom of ignoring sick call requests. Howell v. Town of Ball, 827 F.3d 515, 527 (5th Cir. 2016).

As for his claims dismissed at summary judgment, Brown’s proof does not surmount the high threshold of deliberate indifference. That standard requires showing that a prison official knew of, but disregarded, an inmate’s serious medical need. Gobert v. Caldwell, 463 F.3d 339, 346 (5th Cir. 2006).

Brown argues Woodall was deliberately indifferent to his needs in three ways: (1) intentionally misdiagnosing him, (2) interfering with his postsurgery treatment, and (3) refusing to treat him. The first two claims are belied by the record. Woodall saw Brown, ordered x-rays and bloodwork, and, after receiving normal results, prescribed medication to alleviate Brown’s symptoms. That Woodall may have made a dismissive comment or gotten the diagnosis wrong does not establish that he “refused to treat [Brown], ignored his complaints, intentionally treated him incorrectly, or engaged in any similar conduct that would clearly evince a wanton disregard for any serious medical needs.” Johnson v. Treen, 759 F.2d 1236, 1238 (5th Cir. 1985). Brown’s medical records likewise reveal he continuously received the prescribed postsurgery pain medications. Although Woodall did erroneously continue Brown’s zantac prescription, Brown offers no evidence suggesting that Woodall intentionally ignored the specialist’s order to the contrary. Brown’s evidence supporting his third allegation falls short for a different reason: it does not implicate Woodall. Brown points generally to his requests for doctors going unanswered. But in testimony that is not disputed, Woodall says he did not see Brown’s sick call requests or refuse to treat him.

The magistrate judge also correctly rejected Brown’s claims based on doctors not being on site around-the-clock. Brown cites no authority, and we have found none, requiring that as a general matter. What is more, Brown’s evidence shows doctors are on site throughout the day and available by phone at all other times when nurses are always present. See Hoptowit v. Ray, 682 F.2d 1237, 1253 (9th Cir. 1982) (en banc) (noting the Eighth Amendment requires that prison medical staff be “able to treat medical problems or to refer prisoners to others who can”). In any event, Brown offers no proof that he suffered any injury as a result of doctors not being present at night.

III.

Given our agreement that it was proper to dismiss some allegations for failure to state a claim and others at the summary judgment stage for lack of evi-dentiary support, we confront the strike question posed at the outset.

Section 1915(g) reads as follows:

In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.

28 U.S.C. § 1915(g). The statute speaks of “actions,” not “claims,” that were dismissed as frivolous, malicious, or for failure to state a claim. The ordinary meaning of “action” is the entire lawsuit. See Fed. R. Crv. P. 2 (noting that “[tjhere is one ’form of action—the civil action”); Fed. R. Civ. P. 3 (stating that a civil “action” begins with the filing of a complaint); Fed. R. Crv. P. 54(b) (recognizing that an “action” may contain “more than one claim” so that “any order ... that adjudicates fewer than all the claims ... does not end the action”); see also Action, Black’s Law Dictionary (10th ed. 2014) (defining “action” as a “civil or criminal judicial proceeding” and noting that “[t]he terms ‘action’ and ‘suit’ are nearly if not quite synonymous” with the distinction being that action historically refers to proceedings in courts of law and suit to those in courts of equity).

That the PLRA uses “action” in its ordinary sense finds support in how the term is used elsewhere in section 1915. Section 1915(e)(2) says the court “shall dismiss the case” notwithstanding partial payment if the “action or appeal” is frivolous or malicious. 28 U.S.C. § 1915(e)(2). Likewise, Section 1915(f)(1) lists “action” in tandem with “suit” when discussing judgment for costs. Id. § 1915(f)(1) (“Judgment may be rendered for costs at the conclusion of the suit or action....”).

Consistent with this reading, many other circuits have held that a strike issues only when the entire case is dismissed for being frivolous, malicious, or failing to state a claim. See Thompson v. Drug Enforcement Admin., 492 F.3d 428, 432 (D.C. Cir. 2007) (“Section 1915(g) speaks of the dismissal of ‘actions and appeals,’ not ‘claims.’ ”); Turley v. Gaetz, 625 F.3d 1005, 1008-09 (7th Cir. 2010) (“[W]e believe that the obvious reading of the statute is that a strike is incurred for an action dismissed in its entirety on one or more of the three enumerated grounds.”); Tolbert v. Stevenson, 635 F.3d 646, 651-52 (4th Cir. 2011) (“[W]e conclude that ‘action’ in § 1915(g) unambiguously means an entire case or suit. Therefore, § 1915(g) requires that a prisoner’s entire ‘action or appeal’ be dismissed on enumerated grounds in order to count as a strike.”); Thomas v. Parker, 672 F.3d 1182, 1183 (10th Cir. 2012) (same); Ellis v. Simmons, 654 Fed.Appx. 250, 251 (8th Cir. 2016) (same); see also Pointer v. Wilkinson, 502 F.3d 369, 375-76 (6th Cir. 2007) (implicitly recognizing the same).

These courts’ reading of section 1915(g) comports with the PLRA’s effort “to filter out the bad claims filed by prisoners and facilitate consideration of the good.” Coleman v. Tollefson, — U.S.-, 135 S.Ct. 1759, 1762, 191 L.Ed.2d 803 (2015). Allowing the Rule 12(b)(6) dismissal of a single claim out of many—a common occurrence even for cases with sophisticated plaintiffs counsel in this day of Twombly and Iqbal—to count as a strike would mean a prisoner gets a strike even when some of the claims succeed. Thompson, 492 F.3d at 432 (“[I]t would make no sense to say— where one claim within an action is dismissed for failing to state a claim and another succeeds on the merits—that the ‘action’ has been dismissed for failing to state a claim.”). Imposing a strike only when the action itself is dismissed for one or more of the qualifying reasons is consistent with the statute’s balance between deterring frivolous filings while maintaining access to the courts for facially valid claims.

Patton v. Jefferson Correctional Ctr., 136 F.3d 458 (5th Cir. 1998), poses no-obstacle to reading section 1915(g) as its language dictates. Patton was denied in forma pauperis status for having three strikes. Id. at 461. Two of those strikes were for actions involving a section 1983 claim that was dismissed as frivolous and a habeas claim that was dismissed for failure to exhaust. Id. at 462-63. In holding that dismissal of those actions counted as strikes, we explained that when a single complaint includes both habeas claims and civil rights claims, the district court should separate the claims and decide the section 1983 claims. Id. at 464. In that sense, two separate actions were at issue. Indeed, the three strikes provision does not apply to habeas actions as they “are considered something different from traditional civil actions.” Carson v. Johnson, 112 F.3d 818, 820 (5th Cir. 1997). Because the civil rights portion of a complaint raising both habeas and section 1983 claims is the only “civil action” to which section 1915(g) applies, it makes sense to impose a strike when all the section 1983 claims in such an action are dismissed for frivolousness. We further noted that such a rule was necessary to prevent an end run around the PLRA as “litigious prisoners could immunize frivolous lawsuits from the ‘three strikes’ barrier by a simple expedient of pleading unex-hausted habeas claims as components of § 1983 suits.” Patton, 136 F.3d at 464.

That same potential for abuse does not exist in a case like this one in which some of the claims got past the pleading stage yet failed, as many lawsuits of all types do, at summary judgment. Because this “action” was not “dismissed on the grounds that it is frivolous, malicious, or fails to state a claim,” a strike should not have been imposed.

We AFFIRM the judgment of the district court but VACATE the strike.

      . Brown alleges the district court erred by not apprising him of the summary judgment requirements. Although courts should advise pro se prisoners of procedural rules, Davis v. Fernandez, 798 F.3d 290, 293-94 (5th Cir. 2015), we have held that they need not be given additional notice of the consequences of a summary judgment motion and the right to submit opposing affidavits as the notice given by Rule 56 and the local rules suffices, Martin v. Harrison County Jail, 975 F.2d 192, 193 (5th Cir. 1992).

      . Some unpublished opinions cite Patton to impose strikes when some claims were dismissed on section 1915(g) grounds and other civil rights claims were dismissed for failing to exhaust administrative prison procedures. See Taylor v. Swift, 618 Fed.Appx. 228, 228-29 (5th Cir. 2015); Espinal v. Bemis, 464 Fed.Appx. 250, 252 (5th Cir. 2012); Sears v. Blanco, 442 Fed.Appx. 961, 963 (5th Cir. 2011). Aside from being nonbinding, those cases are no barrier to the general rule we recognize today. Even circuits that rely on an "end run around” rationale to allow strikes for dismissals partly on section 1915(g) grounds and partly for failure to exhaust civil rights claims acknowledge that strikes generally do not issue for partial dismissals. See Thomas v. Parker, 672 F.3d 1182, 1183-84 (10th Cir. 2012) (holding that partial dismissals are not grounds for a strike but treating "end run around” cases as exceptions to that rule); Pointer v. Wilkinson, 502 F.3d 369, 375-76 (6th Cir. 2007) (same); but see Turley v. Gaetz, 625 F.3d 1005, 1008-09 (7th Cir. 2010) (holding that “dismissal of an action, in part for failure to exhaust and in part as frivolous, malicious or for fáilure to state a claim does not constitute a strike under § 1915(g)”).

      . We recognize that two unpublished opinions have imposed strikes in the situation we face. See Foreman v. Potter, 382 Fed.Appx. 370 (5th Cir. 2010); Walzier v. McMullen, 333 Fed.Appx. 848 (5th Cir. 2009). But neither case provides any analysis to support that decision or grapples with the meaning of "action” that leads us to join all the other circuits that have considered this question.


source: Caselaw Access Project

author: JUNELL, District Judge:

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Curtis James CLUFF, Defendant-Appellant.
    No. 16-20116
    United States Court of Appeals, Fifth Circuit.
    Filed May 18, 2017

      Anna Elizabeth Kalluri, Carmen Castillo Mitchell, Assistant U.S. Attorneys, U.S. Attorney’s Office, Southern District of Texas, Houston, TX, for Plaintiff-Appellee.
    Stanley G. Schneider, Schneider & McKinney, P.C., Houston, TX, Defendant-Appellant.
    Before SMITH and HAYNES, Circuit Judges, and JUNELL, District Judge.

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

   JUNELL, District Judge:

Curtis Cluff pleaded guilty to conspiracy to possess with intent to distribute cocaine under 21 U.S.C. §§ 841, 846, and was sentenced to 99 months’ imprisonment and 5 years of supervised release. Following his sentence, Cluff filed a motion for new trial, alleging the Government breached the plea agreement. The district court denied the motion and Cluff appealed. We AFFIRM.

I.

In October 2014, Curtis Cluff was charged in a two-count indictment with conspiracy to possess with intent to distribute cocaine under 21 U.S.C. §§ 841, 846, and ■ aiding and abetting bulk cash smuggling under 31 U.S.C. § 5332 and 18 U.S.C. § 2. The events giving rise to those charges occurred in 2011; however, Cluff entered into an agreement with the Government in January 2012 to work as a confidential informant. The Government states the agreement provided that as long as he was working for the Government, he would not be prosecuted. Cluff continued working in this capacity until March 2014 when he was hospitalized after being shot by a police officer who was the subject of an investigation in which Cluff was assisting.

In March 2015, Cluff moved to dismiss the indictment based on the doctrine of equitable immunity. Therein, Cluff stated he believed that as long as he cooperated with law enforcement, he would not be prosecuted at all. He also explained the only reason he ceased working as an informant was because all contact with his supervising agents ceased after he was shot. The Government filed a response in opposition to Cluffs motion, acknowledging that they had approached Cluff to be an informant, but denying any promise or representation had been made by a law enforcement officer or prosecutor that he would not be charged. Cluff was informed he would ultimately be charged once his cooperation was complete.

Upon the district court’s denial of the motion to dismiss, Cluff pleaded guilty to count one—conspiracy to possess with intent to distribute cocaine—and entered into a plea agreement with the Government. The agreement provided that the Government would move to dismiss count two; recommend a two-level downward adjustment for acceptance of responsibility “should the defendant accept responsibility as contemplated by the Sentencing Guidelines”; recommend an additional one-level reduction based on the timeliness of his plea; recommend he only be held accountable for 65.32 kilograms of cocaine; not seek a money judgment forfeiture; and recommend he receive the benefits of the safety valve provisions of 18 U.S.C. § 3553(f) and U.S.S.G. § 5C1.2, if eligible. In addition, the Government indicated it may file a motion for departure under U.S.S.G. § 5K1.1 as a result of Cluffs cooperation. At the plea hearing, Cluff acknowledged that the terms of the plea agreement were correct, no other promises had been made to induce him to plead guilty, and he understood the terms of the plea agreement.

The Presentence Investigation Report (PSR) assessed a base offense level of 38 upon finding that Cluff was responsible for 615 kilograms of cocaine. The probation officer also recommended a four-level enhancement based on Cluffs role as an organizer or leader, which resulted in a total offense level of 42. With an offense level of 42 and a criminal history category of I, his guideline range for imprisonment was 360 months to life.

Cluff objected to the PSR to the extent it did not conform to the plea agreement. He objected to the amount of cocaine as well as the leadership enhancement and sought a reduction for acceptance of responsibility and application of the safety valve provision. The Government filed a response, recommending Cluff be given safety valve and that he be held accountable for only 65.32 kilograms of cocaine, as agreed in the plea agreement. The Government also contested the leadership enhancement. Subsequently, the Government filed a motion for sentence reduction pursuant to § 5K1.1 and recommended Cluff receive a three-level reduction for acceptance of responsibility, which would result in a recommended guideline range of 46 to 57 months’ imprisonment.

n.

At the sentencing hearing on December 1, 2015, Cluff accepted responsibility for his actions. He then explained to the court that he became an informant based on his understanding that he had entered into an agreement with the DEA agents that if he worked for the Government, he would not be charged at all. Assistant United States Attorney (AUSA) Ralph Imperato denied ever having made such a promise, explaining that Cluff was told he would go to prison, but the amount of time he would serve was dependent upon his level of cooperation. The district judge asked Cluff who had made him this alleged promise, to which he replied with “Mr. Imperato.” Again, AUSA Imperato denied Cluffs statement, accused him of lying to the court, and asked the court to allow him to withdraw his guilty plea. Instead, the district court recessed the hearing to give the parties time to resolve the issue.

The day before the second sentencing hearing, the Government filed a modified motion for sentence reduction. The motion alleged that Cluff made false statements under oath at the December 1 hearing and, therefore, he did not accept responsibility as contemplated by the Sentencing Guidelines, as was required by the plea agreement. The Government then withdrew its previous recommendation concerning acceptance of responsibility and recommended he be given a two-level increase for obstruction of justice under U.S.S.G. § 3C1.1. However, given Guffs substantial assistance as an informant, the Government recommended a downward departure under § 5K1.1.

The parties reconvened before the court on December 22, 2015. Again, Cluff accepted responsibility. In addition, he stated that if he misconstrued or misunderstood the agreement, he wanted to apologize to AUSA Imperato. At the conclusion of the hearing, the district court sentenced him to 99 months of imprisonment followed by 5 years of supervised release. In so ruling, the court declined to grant Cluff a reduction for acceptance of responsibility. Instead, the court imposed an additional two points for obstruction of justice but reduced his sentence by granting the Government’s motion for a § 5K1.1 departure.

Cluff then filed a timely motion for new trial, arguing the Government breached the plea agreement by recommending that the court deny acceptance of responsibility and impose a two-level increase for obstruction of justice.- After a hearing, the district court denied Cluff s motion for new trial, reasoning that he had made a materially false statement at the December 1, 2015 hearing. Accordingly, the court found the Government was not obligated to recommend a downward adjustment for acceptance of responsibility and, thus, did not breach the plea agreement.

III.

As a preliminary matter, the Government argues this appeal should be dismissed as a result of the appellate waiver in the plea agreement. However, the appeal may proceed notwithstanding the waiver. See United States v. Purser, 747 F.3d 284, 289 (5th Cir. 2014) (stating a claim for breach of a plea agreement may be raised despite the waiver provision of the plea agreement); United States v. Roberts, 624 F.3d 241, 244 (5th Cir. 2010).

A district court’s ruling on a motion for new trial is reviewed for an abuse of discretion. United States v. Piazza, 647 F.3d 559, 564 (5th Cir. 2011). A claim that the government breached the plea agreement is reviewed de novo unless the defendant failed to preserve his objection, in which case the claim is reviewed for plain error. United States v. Kirkland, 851 F.3d 499, 502-03 (5th Cir. 2017); Purser, 747 F.3d at 290; Puckett v. United States, 556 U.S. 129, 131, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009).

Cluff did not object to the district court’s findings regarding acceptance of responsibility or obstruction of justice before the conclusion of the second sentencing hearing. Instead, he waited to raise the issues now on appeal in his motion for new trial, which was filed on December 29, 2015, seven days after the second sentencing hearing. Therefore, we find Cluff did not preserve his objections, triggering plain error review. In order to succeed under plain error, Cluff .must show there was an error or defect that was clear or obvious and affected his substantial rights. United States v. Escalante-Reyes, 689 F.3d 415, 419 (5th Cir. 2012) (en banc).

Finally, we “ ‘accept[ ] the district court’s factual findings unless clearly erroneous.’ ” United States v. Pizzolato, 655 F.3d 403, 409 (5th Cir. 2011) (quoting United States v. Elashyi, 554 F.3d 480, 501 (5th Cir. 2008)).

IV.

Cluff asserts the Government breached the plea agreement in two ways: first, by withdrawing its recommendation that he be granted a downward adjustment for acceptance of responsibility; and second, by requesting a two-level increase for obstruction of justice.

In interpreting terms of a plea agreement, courts are to apply general principles of contract law. United States v. Long, 722 F.3d 257, 262 (5th Cir. 2013). “[W]hen a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.” United States v. Saling, 205 F.3d 764, 767 (5th Cir. 2000) (internal quotations and citations omitted). To determine whether the terms of the plea agreement have been violated, the court must consider “whether the government’s conduct is consistent with the defendant’s reasonable understanding of the agreement.” Pizzolato, 655 F.3d at 409 (internal quotations and citations omitted). The court should also consider both express and implied terms of the plea agreement. See United States v. Munoz, 408 F.8d 222, 227 (5th Cir. 2005).

Cluffs plea agreement provided that “[a]t the time of sentencing, the United States agrees to recommend that the defendant receive a two (2) level downward adjustment pursuant to U.S.S.G. Section 3El.l(a) should the defendant accept responsibility as contemplated by the Sentencing Guidelines.” The agreement also stated that “the United States reserves the right ... to set forth or dispute sentencing factors or facts material to sentencing.”

Section 3E1.1 of the Sentencing Guidelines permits a two-level decrease in a defendant’s sentence so long as he clearly demonstrates acceptance of responsibility. The Guidelines also authorize a court to increase the offense level by two levels for obstructing justice if:

(1) the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice with respect to the investigation, prosecution, or sentencing of the instant offense of conviction, and (2) the obstructive conduct related to ... the defendant’s offense of conviction and any relevant conduct.

U.S.S.G. § 3C1.1. The commentary provides a non-exhaustive list of examples of conduct covered by the enhancement, including “providing materially false information to a judge or magistrate judge.” U.S.S.G. § 3C1.1, comment. (n.4(F)). The Guidelines defines material as “evidence, fact, statement, or information that, if believed, would tend to influence or affect the issue under determination.” U.S.S.G. § 3C1.1, comment, (n.6). The commentary of § 3E1.1 then states that “[c]onduct resulting in an enhancement under § 3C1.1 (Obstructing or Impeding the Administration of Justice) ordinarily indicates that the defendant has not accepted responsibility for his criminal conduct.” U.S.S.G. § 3E1.1, comment, (n.4). In other words, “[a]n obstruction of justice charge almost always necessarily militates against an acceptance of responsibility recommendation by the government and a sentence reduction by the district court.” United States v. Quintero, 618 F.3d 746, 751-52 (7th Cir. 2010). For the reasons discussed below, both of Cluffs theories concerning the Government’s alleged breach fail.

A.

We first address Cluff s claim that the Government breached the plea agreement by withdrawing its recommendation that he receive acceptance of responsibility credit. Cluff acknowledges that per the plea agreement, the Government only agreed to recommend a downward adjustment for acceptance of responsibility if he “accepted] responsibility as contemplated by the Sentencing Guidelines.” We have previously held that the Government does not breach a plea agreement by withdrawing a recommendation for, or failing to recommend, acceptance of responsibility credit where the agreement, such as the one at issue here, conditions the Government’s obligation to recommend acceptance credit on the defendant “accepting responsibility as contemplated by the Sentencing Guidelines,” and the defendant fails to do so.

In United States v. Mejia, No. 93-2611, 24 F.3d 239 (5th Cir. 1994) (per curiam) (table), 1994 WL 243287, at *1, we held that the Government did not breach the plea agreement by failing to recommend a three-point reduction for acceptance of responsibility because the defendant “mini-miz[ed] his role in the offense during his interview with the probation officer.” Thus, the condition necessary to trigger the Government’s obligation to recommend the reduction promised in the plea agreement had not been satisfied.

In addition to the fact that Mejia is our binding precedent, our court has issued several unpublished opinions reaching the same conclusion. We find these cases both instructive and persuasive. In United States v. Hernandez-Garcia, 442 Fed.Appx. 136, 137 (5th Cir. 2011) (per curiam), the district court found the defendant had not given truthful testimony at the sentencing hearing and had, therefore, obstructed justice. As a result, he was not entitled to a reduction of his sentence for acceptance of responsibility. We agreed, reasoning that “[b]ecause Hernandez did not accept responsibility under the Guidelines, the condition triggering the Government’s obligation not to oppose Hernandez’ request for an adjustment was not fulfilled; the Government was, therefore, not in breach of the agreement by opposing his request for an acceptance-of-responsibility adjustment.” Id. (emphasis omitted); cf. United States v. Bell, 417 Fed.Appx. 420, 422 (5th Cir. 2011) (per curiam) (holding the same where the defendant “offered exculpatory and irrelevant interpretations of transactions and events; deflected responsibility; denied or discounted relevant conduct; portrayed himself as a victim of unfair Government treatment; and generally denied or minimized his culpability” at the sentencing hearing). A contrary unpublished opinion, United States v. Antunez, 269 Fed.Appx. 528 (5th Cir. 2008) (per curiam), finding breach of the plea agreement, is error in light of Mejia.

Here, the district court found Cluff obstructed justice by making a materially false statement to the court “when he claimed the Government informed him he would not be prosecuted.” As a result the court determined the Government had not breached the plea agreement because Cluff had not accepted responsibility as contemplated by the Guidelines. Whether Cluff made a materially false statement to the judge is a fact issue and, unless clearly erroneous, we defer to the district court. Pizzolato, 655 F.3d at 409. Given the fact-intensive nature of this inquiry, the district court was in a better position to make that determination, which was not clearly erroT neous. Accordingly, we defer to the district court’s determination that Cluff made a materially false statement. In light of Cluffs statement, the condition necessary to obligate the Government to recommend acceptance was never triggered. Thus the Government did not breach the plea agreement by recommending that the district court deny acceptance of responsibility credit to Cluff.

B.

We now turn to Cluffs assertion that the Government breached the plea agreement by moving to increase his sentence by two levels for obstructing justice. Cluff argues the condition in the plea agreement created an implicit promise not to argue for an enhancement. He directs the court to United States v. Munoz, 408 F.3d 222 (5th Cir. 2005). In Munoz, we found there was an implied promise that the Government would not argue for any enhancement not included in the plea agreement. The Government breached the plea agreement by advocating for an enhancement for an abuse of trust after the parties agreed to a specific guideline calculation, which did not include that particular enhancement. Id. at 227. We held that “[e]ven though the Government reserved the right to ‘dispute sentencing factors or facts material to sentencing,’ the Government implicitly promised not to argue for an enhancement that was not part of the plea agreement.” Id.

However, Cluffs case is distinguishable from Munoz. The controlling factor in Munoz was that the parties stipulated to the total offense level. The agreement also set forth a specific guideline calculation that included a list of adjustments and enhancement that would apply to the defendant’s sentence, and that list did not include the enhancement the Government attempted to proffer at sentencing. There were no such provisions in Cluffs plea agreement—the agreement did not stipulate to a total offense level or include a list of potential enhancements. The agreement here merely provided that the Government would recommend credit for acceptance if Cluff accepted responsibility as contemplated by the Guidelines, and he failed to do so. Thus, his reliance on Munoz is improper. See Purser, 747 F.3d at 294 (finding that, unlike Munoz, there was no provision in the plea agreement regarding a total offense level and therefore, there was “no implicit commitment on part of the government as to any Guidelines provisions not mentioned in the plea agreement”).

Cluffs agreement also stipulated that the Government retained the right “to set forth or dispute sentencing factors or facts material to sentencing.” This provision is broad enough to cover enhancements such as the one at issue here regarding obstruction of justice. The same provision was included in the plea agreement in Munoz, but the Government was precluded from relying on it given that the parties stipulated to the total offense level. Because Cluffs agreement did not stipulate to a total offense level, the Government was entitled to dispute facts material to sentencing and recommend enhancements not specifically mentioned in the plea agreement.

Under the circumstances presented here, it was not improper to deny a reduction for acceptance of responsibility and impose an increase for obstruction of justice. See United States v. Rodriguez, 942 F.2d 899, 902-03 (5th Cir. 1991) (upholding the district court’s denial of acceptance of responsibility and imposition of an obstruction of justice enhancement). The language of Cluffs plea agreement was clear. The Government was only obligated to recommend a reduction for acceptance of responsibility if Cluff accepted responsibility as contemplated by the Guidelines. He failed to do so. As a result, the Government was not required to recommend acceptance credit and did not breach the plea agreement by advocating against such a-reduction. In addition, the agreement provided that the Government retained the right to bring up other sentencing factors or facts material to sentencing. There was nothing in the agreement that prevented the Government from raising the obstruction enhancement. While there are “extraordinary cases in which adjustments .under both §§ 3C1.1 and 3E1.1 may apply,” this is not one of those cases. U.S.S.G. § 3E1.1, comment. (n.4). Accordingly, we conclude the Government did not breach the plea agreement.

V.

Next, Cluff argues judicial estop-pel should have prevented the Government from advocating for the obstruction of justice enhancement and that its actions constituted prosecutorial vindictiveness. Given that neither issue was raised in the district court, we review for plain error. United States v. Rodriguez, 602 F.3d 346, 351 (5th Cir. 2010).

A.

We first address his claim that the Government was judicially estopped from arguing for an obstruction enhancement. Judicial estoppel is a doctrine that “ ‘prevents a party from asserting a position in a legal proceeding that is contrary to a position previously taken in the same or some earlier proceeding.’ ” Gabarick v. Laurin Mar. (Am.) Inc., 753 F.3d 550, 553 (5th Cir. 2014) (quoting Ergo Sci., Inc. v. Martin, 73 F.3d 595, 598 (5th Cir. 1996)). At the outset, judicial estoppel “has appar ently never been applied against the government in a criminal case.” Nichols v. Scott, 69 F.3d 1255, 1272 (5th Cir. 1995). However, we have previously assumed without deciding that judicial estoppel can apply to the government in criminal cases. United States v. McCaskey, 9 F.3d 368, 378-79 (5th Cir. 1993) (per curiam). Assuming that the doctrine can apply to the government, to succeed Cluff must first establish that “the position of the party to be estopped is clearly inconsistent with its previous one; and [second,] that party must have convinced the court to accept that previous position.” Hall v. GE Plastic Pac. PTE Ltd., 327 F.3d 391, 398 (5th Cir. 2003) (quotation omitted).

According to Cluff, the Government threatened it would not file a § 5K1.1 motion and would withhold a recommendation for acceptance of responsibility if he filed the motion to dismiss the indictment. Cluff disregarded the threat and filed the motion to dismiss. Despite its threat, the Government filed objections to the PSR that were consistent with the plea agreement, recommended he receive a downward adjustment for acceptance of responsibility, and filed the § 5K1.1 motion. It was not until Cluff s statements at the December 1, 2015 sentencing hearing that the Government changed positions by filing a modified motion for sentence reduction seeking to withdraw its recommendation for a reduction for acceptance of responsibility and recommending an enhancement for obstruction of justice.

Cluff is correct in his assertion that the position taken by the Government before the December 1, 2015 hearing was inconsistent with its position after the hearing. Yet, he has not shown.that the Government convinced the district court to accept the previous position. Cluff relies on the district judge’s statement during the December 22, 2015 hearing stating, “I ... hereby decide and, to whatever extent necessary, reverse the prior ruling relative to acceptance,” to show that the court accepted the previous position and intended to reverse it. However, an examination of the record shows the court did not make any rulings during the December 1 hearing. Instead, the district judge recessed the hearing and reset it for December 22 to give the parties time to resolve the discrepancy. The acceptance of responsibility and obstruction of justice issues were not decided until the December 22 hearing. Thus, the Government was not estopped from recommending that the court deny a reduction for acceptance of responsibility and to instead apply a two-level increase for obstructing justice.

B.

As for Cluffs prosecutorial vindictiveness claim, he acknowledges that vindictiveness does not typically arise unless “a defendant receives a harsher sentence after winning an appeal or habeas petition,” and that he has not received a second sentence. Nevertheless, Cluff takes issue with the various positions articulated by the Government from the time of his plea to sentencing and argues these actions demonstrated vindictiveness.

A defendant can prove vindictiveness in one of two ways: first, he can present objective evidence to show that the prosecutor’s actions were designed to punish him for asserting a legal right; and second, he may be able to show sufficient facts that give rise to a presumption of vindictiveness. United States v. Saltzman, 537 F.3d 353, 359 (5th Cir. 2008). A presumption of vindictiveness only arises “where there exists a realistic likelihood of vindictiveness.” Id. (internal quotations omitted). The presumption does not arise if, after examining the prosecutor’s actions in the context of the entire proceeding, “any objective event or combination of events in those proceedings should indicate to a reasonable minded defendant that the prosecutor’s decision ... was motivated by some purpose other than a vindictive desire to deter or punish appeals.” United States v. Wells, 262 F.3d 455, 466-67 (5th Cir. 2001) (internal citation and quotation omitted). “Where there is no such reasonable likelihood, the burden remains upon the defendant to prove actual vindictiveness.” Alabama v. Smith, 490 U.S. 794, 799, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989).

There is no indication the Government’s actions were designed to punish Cluff. First, he was not asserting a legal right. Second, the terms of the plea agreement provided that the Government would recommend a reduction for acceptance of responsibility only if Cluff accepted responsibility as contemplated by the Guidelines. Once Cluff stated at the December 1 hearing, under oath, that he did not believe he would be charged at all as a result of his cooperation, it was the Government’s belief that he had made a materially false statement to the court, which entitled the Government to recommend against acceptance of responsibility. Notably, the Government still recommended he receive a reduction in his sentence pursuant to § 5K1.1, further evincing it did not intend to punish him improperly. Accordingly, the record does not support Cluffs claim of prosecutorial vindictiveness.

VI.

For the foregoing reasons, we hold that the district court did not err in denying Cluffs motion for new trial. The district court’s judgment is, therefore, AFFIRMED.

      . In the motion, he alleged that he was "offered the opportunity of freedom for him and his family” if he worked as an informant.

      . This changed his recommended guideline range from 46 to 57 months to 80 to 99 months, which included the departure under § 5K1.1.

      . Although Cluff had made the same assertions before the December 1, 2015 hearing, the district court determined that this was the first instance Cluff had made a "materially false statement to a judge that would trigger an obstruction of justice enhancement and require the withdrawal of the recommendation for acceptance of responsibility.”

      . See also 5th Cir. R. 47.5.3 (unpublished opinion before 1996 is precedential).

      . These various positions included the threats made regarding the motion to dismiss, which despite the filing of the motion to dismiss, were not carried out until sentencing, and the objections to the PSR, to the extent it did not conform to the plea agreement.


author: JERRY E. SMITH, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Salvador OCAMPO-VERGARA, Also Known as Salvador Ocampo, Also Known as Chava; Gustavo Ortiz-Salazar, Also Known as Daniel, Also Known as Gus, Also Known as Gustabo, Defendants-Appellants, United States of America, Plaintiff-Appellee, v. Ricardo Ortiz-Fernandez, Also Known as Alex, Defendant-Appellant.
    No. 15-41235 Consolidated with 15-41286
    United States Court of Appeals, Fifth Circuit.
    FILED May 19, 2017

      Terri Lynn Hagan, Tracey M. Batson, Ernest Gonzalez, Assistant U.S. Attorneys, U.S. Attorney’s Office, Eastern District of Texas, Plano, TX, for Plaintiff-Appellee.
    Joseph Jude Padian, Esq., Dallas, TX, Peter Christian Smythe, Smythe, P.C., Fort Worth, TX, for Defendants-Appellants.
    Salvador Ocampo-Vergara, Pro se.
    Gustavo Ortiz-Salazar, Pro se.
    Before SMITH and HAYNES, Circuit Judges, and JUNELL, District Judge.

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

   JERRY E. SMITH, Circuit Judge:

A jury convicted Salvador Ocampo-Ver-gara, Gustavo Ortiz-Salazar, and Ricardo Ortiz-Fernandez of conspiracy to possess with intent to distribute heroin. They raise various challenges to their convictions. We affirm.

I.

The government introduced testimony from several of the coconspirators. Daniel Castrejon testified about the structure of the drug-trafficking organization. He explained that the Beltran-Levya cartel controlled drug distribution in the Mexican states of Morelos, Guerrero, and Puebla. Castrejon worked for the cell of a cartel in the Beltran-Levya alliance. He knew that a man called “La Chula” also worked for the cartel and that La Chula’s job was to send shipments of heroin to the United States. Castrejon’s job was to find drivers who were willing to transport drugs into the United States. He reached an arrangement with Ocampo-Vergara whereby Castrejon would pay Ocampo-Vergara 30,000 pesos for each courier he recruited. Couriers were paid $15,000 plus $5,000 expense money for each trip. To reduce suspicion, they were required to register and insure the cars in their own names. The couriers were generally not informed of the type or quantity of the drugs they were transporting. The drugs were concealed in hidden compartments, and, depending on the type of vehicle, each shipment of heroin was between six and fifteen kilograms.

Ortiz-Fernandez was in charge of receiving and unloading the cars and then distributing the drugs. He operated out of Chicago and was responsible for distributing drugs to Chicago, New York, and Texas. Shipments would arrive in Chicago at least once a week; for each kilogram of heroin that arrived in Chicago, Ortiz-Fernandez was paid $1,000. Proceeds from sale of the heroin were then sent to Mexico in the same vehicles used to transport the drugs. Castrejon estimated that he and Ortiz-Fernandez received 100 kilograms of heroin and returned between three and five million dollars to Mexico.

Multiple couriers for the organization corroborated Castrejon’s description of Ocampo-Vergara’s and Ortiz-Fernandez’s roles. Several of the couriers also described how Ortiz-Salazar participated in driving shipments of drugs and money. Alejandro Rodriguez, Araeeli Gonzalez, and Daniel Vargas described trips they made with Ortiz-Salazar on behalf of the organization.

After an eight-day trial, a jury convicted Ocampo-Vergara, Ortiz-Salazar, and Ortiz-Fernandez—who had been indicted along with four other defendants not parties to this appeal—of conspiracy to possess with intent to distribute one kilogram or more of heroin. They raise several issues regarding the convictions.

II.

Ocampo-Vergara contends that there was insufficient evidence for conviction. But he did not properly preserve that issue. Although he joined a motion for judgment of acquittal at the close of the government’s case-in-chief, he did not renew the challenge at the close of all evidence. Where no such challenge was made, a defendant, to establish insufficiency, must show that the record is “devoid of evidence pointing to guilt” or is “so tenuous that a conviction is shocking.”

“To prove a drug conspiracy, the government must prove that (1) two or more persons, directly or indirectly, reached an agreement to possess with the intent to distribute a controlled substance; (2) the defendant knew of the agreement; (3) the defendant voluntarily participated in the agreement; and (4) the overall scope of the conspiracy involved the drug amount in the charged crime.” “A reasonable jury may infer the existence of a conspiracy from the presence, association, and concerted action of the defendant with others.” Moreover, we must view all evidence in the light most favorable to the government, giving it the benefit of all reasonable inferences and credibility choices.

Far from being “devoid of evidence,” the record is replete with evidence that points to Ocampo-Vergara’s guilt. Four conspiracy members testified that Ocampo-Vergara recruited them to be couriers and explicitly informed them that they would be transporting drugs. In addition, Castrejon said that he entered an agreement with Ocampo-Vergara whereby Castrejon would pay Ocampo-Vergara 30,-000 pesos for each courier whom he recruited. So, al-though evidence of an express agreement is not required to prove a conspiracy, the record shows that Ocam-po-Vergara entered express agreements to distribute heroin.

Numerous couriers also testified that they delivered vehicles to Ocampo-Vergara in Mexico. Ocampo-Vergara then directed the return of those vehicles for trips into the United States; heroin was discovered in several of the vehicles. A jury could reasonably infer that Ocampo-Vergara knew that heroin was concealed inside the cars between the time he received them and the time the couriers retrieved them. Indeed, when one of the couriers noticed a white residue on her returned vehicle and asked Ocampo-Vergara about it, he instructed her to wash it and spray it with perfume. His answer implies knowledge of the drugs.

In sum, Ocampo-Vergara has not overcome the high bar of showing that the evidence was “obviously insufficient.” Delgado, 672 F.3d at 331 (emphasis omitted). His sufficiency claim fails.

III.

Ortiz-Salazar asserts that the district court erred by permitting the government to introduce “guilt-by-association” evidence. He points to (1) testimony about other conspiracy members’ arrests; (2) testimony that couriers drove consistent types of vehicles and had similar concealment methods; (3) testimony that Ortiz-Salazar was from the same area of Mexico as several other coconspirators; and (4) questions from the government, in which it described certain witnesses as “known” or “possible” couriers. But, as we explain, such evidence is perfectly appropriate in a conspiracy case.

“[A] defendant’s guilt may not be proven by showing he associates with unsavory characters.” United States v. Singleterry, 646 F.2d 1014, 1018 (5th Cir. 1981). For example, we found that a prosecutor had elicited impermissible guilt-by-association evidence by asking the defendant if he associated with felons. Id. And a district court erred by admitting evidence that a defendant’s brother had been involved in marihuana smuggling, given that the evidence was “not connected to [the defendant] in any way except for the fact that the seller was his brother.” There are two problems with such guilt-by-association evidence. First, “it is not relevant as that term is defined in [Federal Rule of Evidence] 401 and hence is inadmissible under [Federal Rule of Evidence] 402.” United States v. Polasek, 162 F.3d 878, 884 n.2 (5th Cir. 1998). Second, “even if it is relevant, it is unduly prejudicial and ex-cludible under [Federal Rule of Evidence] 403.” Id.

But, in a conspiracy case, evidence that the defendant was involved with coconspirators is highly relevant. Indeed, “[t]he agreement, a defendant’s guilty knowledge and a defendant’s participation in the conspiracy all may be inferred from the development and collocation of circumstances.” Accordingly, “[presence and association with other members of a conspiracy, along with other evidence, may be relied upon to find a conspiracy.” United States v. Casilla, 20 F.3d 600, 603 (5th Cir. 1994). And though such evidence is certainly prejudicial in the sense that it harms the defendant’s case, it is not “unfairly]” prejudicial in the sense of Rule 403.

Polasek is instructive of the interaction between conspiracy cases and the prohibition on guilt-by-association evidence. There, the defendant was charged with various offenses, including conspiracy, related to odometer tampering. The government elicited testimony that the defendant had done title work for persons later convicted of odometer fraud. Polasek, 162 F.3d at 881-83. We held that the testimony was impermissible guilt-by-association evidence because it “showed only that [the defendant] associated with criminals.” Id. at 885. But, critically, we observed that “the government failed to demonstrate that [the defendant] in fact falsified titles or committed any other crimes in connection with the convicted associates.” Id. (emphasis added). In explaining why the challenged testimony was irrelevant, we noted that “[t]he government never demonstrated that [the defendant] participated in or even knew of the schemes for which the associates were convicted.” Id. at 884 n.2. Thus, Polasek shows that guilt-by-association problems arise where evidence indicates only that a defendant associates with unsavory characters. In contrast, where the defendant’s offense is connected to others’ conduct, no such problems arise.

All of the evidence Ortiz-Salazar challenges was relevant to showing that he was a member of the conspiracy, and none of it was unfairly prejudicial. Thus, the district court did not err in permitting it.

IV.

Ortiz-Salazar contends that the district court erred by permitting certain testimony from DEA Agent Richard Clough. Testifying as an expert, Clough explained how complex drug-trafficking organizations typically move drugs from Mexico to the United States. He also described specific events from the instant conspiracy, such as the arrests of the testifying couriers. He further explained how the DEA, based on its investigation into Ortiz-Salazar’s activities and travel patterns, had come to believe that he too was a drug courier. Ortiz-Salazar maintains that Clough’s testimony violated Federal Rule of Evidence 704(b) and our precedents prohibiting evidence of drug-courier profiles.

But Ortiz-Salazar concedes that he did not raise those challenges at trial and that we are thus limited to reviewing for plain error. See Puckett v. United States, 556 U.S. 129, 135, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009). And even assuming that the district court erred in permitting the challenged portions of Clough’s testimony—and assuming that the error was clear—Ortiz-Salazar still has the burden to show that his substantial rights were affected. To meet that burden, he “must show ‘a reasonable probability that his trial would have come out differently but for the illegitimate aspects of [Agent Clough’s] testimony.’ ”

Ortiz-Salazar has made no such showing. Even setting aside Clough’s challenged testimony, the jury was presented with substantial other evidence that Ortiz-Salazar was a knowing and voluntary participant in the conspiracy. Four coconspira-tors—each of whom admitted to being a drug courier—testified regarding Ortiz-Salazar’s involvement:

• Alejandro Rodriguez said that Ortiz-Salazar asked for a ride to Chicago from Mexico. Rodriguez then explained that the purpose of the trip was to smuggle drugs. Ortiz-Salazar replied that it “[didn’t] matter” and requested an introduction to Rodriguez’s employer. Ortiz-Salazar then assisted Rodriguez in driving the vehicle to Chicago and received $2,000 for his help.
• Araceli Gonzalez also testified about a trip she made with Ortiz-Salazar. They drove a Chevrolet Malibu—in which Gonzalez was later discovered with heroin—and Ortiz-Salazar told her that he had previously driven the car when transporting “loads.” He explained that the Malibu was good for transporting drugs because it did not attract attention.
• Daniel Vargas described how he and Ortiz-Salazar had driven a car from Chicago to Los Angeles at Ortiz-Fernandez’s instruction. When they arrived in Los Angeles, Ortiz-Salazar called a number, and the two were told to meet an unknown man at a hotel. The man took the car, returned it the next day, and gave them $2,000-$3,000.
• Angelica Campos testified that a co-conspirator told her that Ortiz-Salazar was a drug courier and that he worked for Castrejon.

Considering the couriers’ testimony, along with the record as a whole, there is no reasonable probability that Ortiz-Salazar’s conviction hinged on Clough’s challenged testimony. So Ortiz-Salazar has not shown that his substantial rights were affected. He thus has not established plain error.

V.

Ortiz-Fernandez asserts that the district court erred by permitting the government to introduce certain summary charts. The charts represented phone “connections” between and among various coconspira-tors, including Ortiz-Fernandez. The connections were drawn between names; no phone numbers appeared on the charts. Ortiz-Fernandez contends that the summary charts did not accurately reflect the underlying phone records because those records did not contain phone-subscriber names. He claims that the records provided no basis for the government to tie phone numbers to any particular conspirator.

But even assuming that the court erred in admitting the challenged summary charts, that error was harmless. “A nonconstitutional trial error is harmless unless it ‘had substantial and injurious effect or influence in determining the jury’s verdict.’ ” The admission of improper summary charts is harmless if other evidence sufficiently proved the elements of the crime and if the jury was not misled by the charts.

There was overwhelming evidence of Ortiz-Fernandez’s guilt. Castrejon testified that Ortiz-Fernandez was in charge of receiving cars, unloading them, and distributing the drugs. He said that Ortiz-Fernandez distributed drugs to Chicago, New York, and Texas and that for each kilogram of heroin that arrived in Chicago, Ortiz-Fernandez was paid $1,000. Castre-jon estimated that he and Ortiz-Fernandez received 100 kilograms of heroin and returned between three and five million dollars to Mexico. In addition, many of the couriers identified Ortiz-Fernandez in court and described how he provided them with vehicles and expense money. The couriers also testified to delivering vehicles containing drugs to Ortiz-Fernandez and to receiving payments from Ortiz-Fernandez for those deliveries.

Ortiz-Fernandez points us to several cases in which we held that admission of an improper summary chart was not harmless. But there the government had attempted to use a summary chart to prove an element that it otherwise had not established. Here, in contrast, the government presented ample evidence to satisfy each of the elements of Ortiz-Fernandez’s conspiracy charge. The challenged summary charts served, at most, as cumulative evidence of an agreement or of Ortiz-Fernandez’s voluntary participation in it. Indeed, it is unlikely that the jury relied on phone calls to conclude that an agreement existed, given that there was direct testimony from multiple eoconspirators that Ortiz-Fernandez was part of the trafficking organization. Moreover, even if the calls were important to the jury’s verdict, numerous witnesses testified to having called Ortiz-Fernandez. In sum, we cannot say that the admission of the summary charts “had substantial and injurious effect or influence in determining the jury’s verdict.” Lowery, 135 F.3d at 959. So any error was harmless.

The judgments of conviction are AFFIRMED.

      . La Chula’s given name is Rene Romero-Aruajo, but most witnesses referred to him as La Chula.

      . Arturo Palacios, Rene Araujo (La Chula), Daniel Vargas, and. Noemi Vargas.

        .See United States v. Jimenez, 509 F.3d 682, 690 (5th Cir. 2007) ("When appellants have preserved their sufficiency argument by moving for judgment of acquittal at the close of the government’s case in chief and at the close of all the evidence, we review their arguments de novo.") (emphasis added); United States v. Green, 293 F.3d 886, 895 (5th Cir. 2002) ("Defendants' sufficiency of the evidence claims are reviewed under a stricter than usual standard, because none, of the defendants renewed their motions for judgment of acquittal at the close of all evidence.”); United States v. Ruiz, 860 F.2d 615, 617 (5th Cir. 1988) ("Nestor moved for a judgment of acquittal based on insufficiency of evidence only at the close of the government's evidence, failing to renew this motion at the conclusion of the presentation of his defense. This failure waived any objection to the denial of his motion.”).

      . United States v. Delgado, 672 F.3d 320, 331 (5th Cir. 2012) (en banc) (quotation marks, citation, and emphasis omitted)

      . United States v. Bowen, 818 F.3d 179, 186 (5th Cir. 2016) (per curiam) (quotation marks omitted and alterations adopted).

      . Id. (quotation marks omitted).

      . Delgado, 672 F.3d at 332; see also United States v. Grant, 683 F.3d 639, 642 (5th Cir. 2012) ("The jury retains the sole authority to weigh any conflicting evidence and to evaluate the credibility of the witnesses.”) (quotation marks omitted).

      . Bowen, 818 F.3d at 188.

      . United States v. Parada-Talamantes, 32 F.3d 168, 169-70 (5th Cir. 1994); see also United States v. McCall, 553 F.3d 821, 825-27 (5th Cir. 2008) (finding that the prosecution had introduced impermissible guilt-by-association evidence by asking the defendant whether he knew a crack-cocaine dealer and if he knew that the dealer was present at the trial).

      . United States v. Romans, 823 F.3d 299, 311 (5th Cir. 2016) (quotation marks omitted). See also United States v. Gallardo-Trapero, 185 F.3d 307, 317 (5th Cir. 1999) (''[I]n meeting its burden, the government may rely on circumstantial evidence tying the defendants together in order to prove conspiracy.”).

        . See Old Chief v. United States, 519 U.S. 172, 180, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997) ("The term 'unfair prejudice' ... speaks to the capacity of some concededly relevant evidence to lure the factfinder into declaring guilt on a ground different from proof specific to the offense charged.”) (emphasis added).

      .Rule 704(b) prohibits an expert witness from ‘'stat[ing] an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense.”

      . E.g., United States v. Morin, 627 F.3d 985, 995 (5th Cir. 2010).

      . Id. at 998 (quoting United States v. Gonzalez-Rodriguez, 621 F.3d 354, 367 (5th Cir. 2010)).

      . See id. at 999-1000 (holding that a defendant had not shown that drug-courier-profile evidence affected his substantial rights because "[t]he government produced a substantial volume of additional evidence demonstrating [the defendant's] guilty knowledge”); Gonzalez-Rodriguez, 621 F.3d at 367-68 (holding the same because "even excluding [the agent’s] impermissible testimony, there is still extensive evidence that [the defendant] knew about the drugs....”).

      . United States v. Lowery, 135 F.3d 957, 959 (5th Cir. 1998) (per curiam) (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)).

        . See United States v. Winn, 948 F.2d 145, 159 (5th Cir. 1991) (holding that improper use of a summary chart was harmless because the evidence was "merely cumulative” and there was "overwhelming evidence” of the charged crime); United States v. Covarrubia, 52 F.3d 1068 (5th Cir. 1995) (per curiam) (table) (holding that admission of a summary chart was harmless because "it [was] clear that the summary did not mislead the jury” and "[t]he evidence introduced at trial was more than sufficient to prove the[] elements as to each defendant”). Because Covarrubia was issued before January 1, 1996, it is prece-dential. See 5th Cir. R. 47.5.3.

      . See United States v. Hart, 295 F.3d 451, 458-59 (5th Cir. 2002); United States v. Taylor, 210 F.3d 311, 315-16 (5th Cir. 2000).

      . See Hart, 295 F.3d at 458-59 (finding non-harmless error in the admission of a chart that stated that certain debts belonged on a form, when the government had presented no evidence to establish that fact); Taylor, 210 F.3d at 316 (finding non-harmless error in the admission of a chart that showed that the defendant had supplied crack cocaine to persons who had testified to the contrary).


author: SUTTON, Circuit Judge, BERNICE BOUIE DONALD, Circuit Judge.

text:
    PEABODY COAL COMPANY, Petitioner, v. DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, United States Department of Labor; Eva Elizabeth Hill, Respondents.
    No. 12-4366
    United States Court of Appeals, Sixth Circuit.
    Decided and Filed: December 23, 2014

      DAUGHTREY, COOK, and WHITE, Circuit Judges.
    SUTTON, J. (pp. 311-15), delivered a concurrence to the denial of rehearing en banc in which KETHLEDGE, J., joined. DONALD, J. (pp. 315-19), delivered a separate opinion.

       This decision was originally filed on December 23, 2014, and inadvertently was not published. The court has now designated the order and separate opinions for full-text publication.

   ORDER

The court received a petition for rehearing en banc. The original panel has reviewed the petition for rehearing and concludes that the issues raised in the petition were fully considered upon the original submission and decision of the case. The petition then was circulated to the full court. No judge has requested a vote on the suggestion for rehearing en banc.

Therefore, the petition is denied.

CONCURRENCE

SUTTON, Circuit Judge,

concurring in the denial of en banc review, in which KETHLEDGE, J., joined.

Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 115 S.Ct. 1447, 131 L.Ed.2d 328 (1995), holds that Congress may not enact legislation that reopens final judgments entered by an Article III court without trespassing on the separation-of-powers guarantees of the Constitution. In today’s case, our court has construed a provision of the Black Lung Benefits Act in a way that seems to do just that. Based on an amendment to the Act—included in the Patient Protection and Affordable Care Act of 2010 (ACA), Pub. L. No. 111-148, § 1556, 124 Stat. 119, 260—the court has transformed a final judgment rejecting a claim for survivor benefits into a judgment granting them. That does not happen every day. And, with respect, it should not have happened here, .both because the statute does not lend itself to this interpretation and because the Constitution prohibits it. That does not mean full court review is necessary or for that matter a good idea, particularly since three other appellate courts have gone down the same trail. See Jim Walter Res., Inc. v. Dir., Office of Workers’ Comp. Programs, 766 F.3d 1333 (11th Cir. 2014); Marmon Coal Co. v. Dir., Office of Workers’ Comp. Programs, 726 F.3d 387 (3d Cir. 2013); Union Carbide Corp. v. Richards, 721 F.3d 307 (4th Cir. 2013). But it may mean that other courts should pause before heading down this path.

Arthur Hill worked in the coal mines of western Kentucky for roughly forty years. He smoked nearly the whole time. In 1987, the Department of Labor found him disabled due to black lung disease and awarded benefits under the Black Lung Benefits Act. We affirmed the award. See Peabody Coal Co. v. Hill, 123 F.3d 412 (6th Cir. 1997). A few years later, Hill developed pancreatic cancer, and he died in 2000. His widow Eva applied for black lung survivor benefits. Using the then-applicable causation standard, the Department denied her claim because cancer unrelated to black lung caused her husband’s death. We again affirmed. See Hill v. Peabody Coal Co., 94 Fed.Appx. 298 (6th Cir. 2004). Eva did not file a petition for a writ of certiorari with the Supreme Court, and the judgment became final.

In 2010, Congress made it easier for the survivors of deceased miners to obtain benefits under the Act in the course of enacting the ACA. It created a new causation standard, one providing that, if a miner was receiving black lung benefits at the time of his death, then he presumptively died from black lung disease, eliminating the wife’s burden of establishing the causation of death, automatically granting her survivor benefits, and sparing her the need to file any claim at all. All agree that the amendments apply to new requests for survivor benefits and to pending claims filed after January 1, 2005.

The question is whether the law should apply to claims finally resolved before January 2005 and refiled after the 2010 effective date. Our court and three others permit such refiled claims. That permits the Department of Labor effectively to reopen claims denied under the old law, to apply the new law to those claims, and to require the miner’s employer to provide benefits for those previously rejected claims under the new relaxed causation standard. See Peabody Coal Co. v. Dir., Office of Workers’ Comp. Programs, 577 Fed.Appx. 469, 470 (6th Cir. 2014) (citing Consolidation Coal Co. v. Maynes, 739 F.3d 323 (6.th Cir. 2014)). Under this interpretation, the ACA effectively says this: “Any action for survivor benefits that previously was dismissed for lack of causation but that would have been granted under the new rules shall be reinstated on motion by the claimant, no matter how long ago an earlier denied claim became final.” See Consolidation Coal, 739 F.3d at 327-28. I doubt whether this rule honors the statute it purports to interpret or that it comports with the Constitution.

First things first: The language of the 2010 amendment does not support this interpretation, much less require it. Through the ACA, Congress made two substantive changes to the Black Lung Benefits Act. Section 1556(a) reinstates the pre-1981 rule that disabled miners who worked underground for at least fifteen years presumptively suffer from black lung disease. Pub. L. No. .111-148 (2010). And § 1556(b) reinstates the pre-1981 rule that survivors of those miners receiving benefits while alive are automatically entitled to benefits and do not even need to file a claim to obtain them. Id. Congress directed the Department of Labor and the courts to apply both changes “to claims filed ... after January 1, 2005, that are pending on or after the date of enactment of this Act,” which is March 23, 2010. Id. § 1556(c). According to our court, “Congress was silent as to whether persons ... whose claims had been denied under the previous eligibility framework[ ] could receive benefits by filing a subsequent claim.” Consolidation Coal, 739 F.3d at 326.

How does the language of the statute count as silence on the issue at hand? Congress said that “pending” claims (if filed after January 1, 2005) and claims filed “after” passage of the Act would receive the benefit of the changes. Congress created a dichotomy between “pending” claims and other claims. Yet the Courts of Appeals’ prevailing interpretation takes the claims-filed-after-enactment language to refer to any and all claims, whether previously rejected or not. If true, that would mean that the “pending” claim side of the dichotomy does no work. With respect to applicants whose claims were finally rejected before the amendment took effect in 2010, they could simply file new claims after 2010, as happened here. With respect to applicants whose claims were pending at the time of enactment and yet were filed before January 2005, they could simply dismiss the claims and refile new claims. This problem evaporates if we accept the most natural reading of the language— that it applies to claims pending on the day of enactment (if filed after January 2005) and claims filed after the day of enactment.

That is one flaw in the' prevailing interpretation; here is another. Legislation is presumed to be prospective unless Congress expressly makes it retroactive. Landgraf v. USI Film Prods., 511 U.S. 244, 277-80, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994). If we apply the amendments to all subsequent claims, that transforms Congress’s express provision for, and limits on, retroactivity in § 1556(c)—making them applicable only to claims pending on the date of enactment and filed after January 2005—into a meaningless gesture and mocks the presumption against retroactivity in the process. Why, to repeat, restrict the new law to pending claims filed after a certain date if all it takes to avoid the cutoff is to reapply?

Even if we put all of that to the side, and even if we assume that Congress was silent about whether to apply the 2010 amendments to new claims, that does not support the prevailing interpretation. Silence or what comes to the same thing— ambiguity—about this issue requires avoiding, not instigating, a conflict between the statute and the constitutional requirements of Plaut. Clark v. Martinez, 543 U.S. 371, 380-81, 125 S.Ct. 716, 160 L.Ed.2d 734 (2005).

Not even appeals to fairness support the prevailing interpretation. Amendments to the Black Lung Benefits Act are not new, and they are not new on this precise burden of proof issue. See Vision Processing, LLC v. Groves, 705 F.3d 551, 553-54 (6th Cir. 2013). The last time Congress altered the standard—in 1981—it did not apply the new standard to previously decided claims. See Pothering v. Parkson Coal Co., 861 F.2d 1321, 1328 (3d Cir. 1988). I would follow the same path here. Even the sponsor of § 1556, the late Senator Robert Byrd, did not think this reading of the statute unfair. In post-enactment comments, Senator Byrd, no foe of coal miners, said the amendments would apply only to pending claims and those from survivors “who never filed for benefits.” 156 Cong. Rec. S2,083-84 (daily ed. Mar. 25, 2010).

If I am wrong about this interpretation, that does not help Mrs. Hill. For it transforms the statute into one that for all practical purposes mirrors the one invalidated in Plant. There, Congress tried to apply a new statute of limitations for securities fraud actions to claims already dismissed as untimely. Id. at 214-15, 115 S.Ct. 1447. The Supreme Court struck down the law as a congressional assumption of judicial power. “Having achieved finality,” the Court explained, “a judicial decision becomes the last word of the judicial department with regard to a particular case or controversy, and Congress may not declare by retroactive legislation that the law applicable to that very case was something other than what the courts said it was.” Id. at 227, 115 S.Ct. 1447. So too here. The ACA permits subsequent claims for survivor benefits-after a final denial of that claim based solely on an intervening statute. We already affirmed that Mrs. Hill is not entitled to such benefits because black lung disease did not cause her husband’s demise, as measured by the then-existing causation standards. Congress may' not say otherwise as to that judgment. Nor does it make a difference that Plant involved a new statute of-limitations and this case involves a new burden of proof. In illustrating how its decision worked, Plant rejected the proposition “that final judgments rendered on the basis of a stringent ... rule of pleading or proof may be set aside for retrial under a new liberal ... rule of pleading or proof.” Id. at 229,115 S.Ct. 1447.

How then has our court and three others sidestepped Plant? All four say that the ACA created a new cause of action; it did not reopen a final judgment. See, e.g., Consolidation Coal, 739 F.3d at 327-28. But the Constitution’s separation-of-powers protections do not melt in the face of new labels. What amounts to “reopening final judgments,” Plant explains, turns on function, not labels. “When retroactive legislation requires its own application in a case already finally adjudicated, it does no more and no less than ‘reverse a determination once made, in a particular case.’ ” Plant, 514 U.S. at 225, 115 S.Ct. 1447. What purports to make this claim “new” is the repeal of the causation element: Survivors no longer must show a miner died from black lung disease to win benefits. Consolidation Coal, 739 F.3d at 328. Even though Congress might “eliminate ... a particular element of a cause of action that plaintiffs have found it difficult to establish,” it may not apply that change retroactively to finally adjudicated claims. Plant, 514 U.S. at 228, 115 S.Ct. 1447. Dubbing the claim a “new cause of action” changes nothing unless the claim arises from facts “collateral to” and “uniquely separable from” the original claim, id. at 236, 115 S.Ct. 1447 (internal quotation marks omitted)—unless in other words the claim arises from a new “case” with a different “nucleus of operative fact,” United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966).

Any other interpretation trivializes Plant. It would mean that, even the day after the Court decided the case, Congress could have remedied the problem by crossing out the language about “reinstating” dismissed claims and replacing it with a new right of action retroactive to the very same fraud. That is doubtful.

Does it make a difference whether the judicial branch creates the separation-of-powers violation itself, as here (by interpreting the statute to have this effect), rather than by having the violation expressly thrust upon it by Congress, as in Plants No. The point of dividing power is to protect individual liberty, not the branches of government themselves. See Bond v. United States, 564 U.S. 211, 131 S.Ct. 2355, 2365, 180 L.Ed.2d 269 (2011). Just ask Peabody Coal. Whether the First Branch (via express language) or the Third Branch (via interpretation of a federal statute) undoes the prior judgment in its favor makes no difference to the company. It invokes the Constitution’s structural guarantees to prevent any branch from directly or indirectly accomplishing this end.

What of the reality that, under preexisting law, a miner or spouse may bring a second benefits claim with respect to the same miner? See Buck Creek Coal Co. v. Sexton, 706 F.3d 756 (6th Cir. 2013). Claimants may bring such claims, to be sure, but based only on new facts. Sexton illustrates the point because it turned on a new set of facts—the miner’s deteriorating condition. 706 F.3d at 760. Here, by contrast, the new cause of action arises from precisely the same set of facts as the survivor’s original claim. As Plant explains, the separation-of-powers question often will come down to the law of claim preclusion at the time of the new law. See Plant, 514 U.S. at 234, 115 S.Ct. 1447. Traditional rules of preclusion do not permit successive claims arising solely from old, already litigated facts. See Restatement (Second) of Judgments § 24 (1982). Subsequent changes in case law do not change that rule either. See, e.g., Harrington v. Vandalia-Butler Bd. of Educ., 649 F.2d 434, 437-38 (6th Cir. 1981). Nor do new statutes: “Mere adoption of new statutory provisions does not defeat claim preclusion ... if a single closed transaction is involved.” 18 Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 4411, at 265-66 (2d ed. 2002); see also Antonioli v. Lehigh Coal & Nav. Co., 451 F.2d 1171, 1176-77 (3d Cir. 1971) (holding that plaintiffs who had lost two prior actions under the Railway Labor Act were precluded from seeking the same relief under later-enacted amendments).

Consistent with Sexton and the traditional preclusion rules, the Department of Labor’s own regulations at the time the ACA was adopted barred reopening claims after a year absent a change in one of the “conditions of entitlement” underlying the prior denial. 20 C.F.R. § 725.309(d)(2) (2010). This regulation expressly ruled out subsequent survivor claims unless they were “unrelated to the miner’s physical condition at the time of his death.” Id. § 725.309(d)(3); see also Regulations Implementing the Federal Coal Mine Health and Safety Act of 1969, as Amended, 65 Fed. Reg. 79,920, 79,973 (December 20, 2000) (explaining that subsequent claims are barred “[wjhere a previous survivor’s claim was denied solely on the basis that the survivor did not prove that the miner died due to pneumoconiosis, an element not subject to change”).

The existence of four Courts of Appeals’ decisions permitting the reopening of final judgments denying survivor benefits offers ample reason to think that there is something to the prevailing interpretation. But there may be another way of looking at the issue, as this concurrence seeks to explain.

OPINION

BERNICE BOUIE DONALD, Circuit Judge.

I write to address the unusual procedural posture of the above-styled “concurrence” in the denial of en banc review. I write with respect for the longstanding rules of the court that one panel cannot overrule the decision of another panel and that a panel decision is entitled to respect and adherence, unless or until overturned by the en banc court, or by a decision of the Supreme Court. The posture of this action threatens to take the court down a slippery procedural slope.

I.

The authoring judge posits that this case was wrongly decided for three reasons: (1) the panel’s decision in this case, and others like it, violates the Supreme Court’s holding in Plant v. Spendthrift Farm, Inc., 514 U.S. 211, 115 S.Ct. 1447, 131 L.Ed.2d 328 (1995); (2) Section 1556 “does not lend itself to [the] interpretation” that a final judgment rejecting a claim for survivors’ benefits may be “transformed” into a judgment granting them; and (3) the United States Constitution similarly prohibits this result. The authoring judge charges that the “doubtful” conclusions reached by the Peabody panel “do[] not happen every day,” “should not have happened here,” “trivializef ] Plaut,” and contravene separation-of-powers protections by merely slapping a “new label” on an otherwise final judgment. Nonetheless, the author simultaneously maintains that full-court review is not necessary “[nor] for that matter a good idea,” and that “[t]he existence of four Courts of Appeals’ decisions permitting the reopening of a final judgments denying survivor benefits offers ample reason to think that there is something to the prevailing interpretation.” How can all of these seemingly contradictory comments be reconciled?

The issue presented in this case is deemed important enough to warrant a separate critique, but not important enough to warrant polling or rehearing by the full court. As the order accompanying these statements indicates, no judge has requested a vbte on Peabody’s suggestion for rehearing en banc. That means that not even the authoring judge concluded that the standard for en banc review has been satisfied. See Fed. R. App. P. 35. Yet, while the author “concurs” that en banc review is not merited, he proceeds to challenge the interpretation of § 1556 reached by two panels of this court and three of our sister circuits. While this unusual circumstance is not completely devoid of precedence, I have been able to identify only a handful of instances in the history of this court in which one or more judges has filed a concurrence in the denial of a request for en banc rehearing. In every single one of those cases, the concurrence was filed only after an en banc poll had been requested, but failed to garner the requisite number of votes. See e.g., Mitts v. Bagley, 626 F.3d 366 (6th Cir. 2010); Am. Civil Liberties Union of Kentucky v. McCreary Cnty., Kentucky, 361 F.3d 928, 929 (6th Cir. 2004). In the present case, no poll was ever requested. The present case stands in stark isolation.

II.

In 2010, the Patient Protection and Affordable Care Act (“ACA”) amended the eligibility requirements for survivors’ benefits under the Black Lung Benefits Act (“BLBA”), 30 U.S.C. §§ 901-944, by reinstating Section 932(i) of the Act’s automatic survivors’ benefits for claims filed after January 1, 2005, that were pending on or after the ACA’s March 23, 2010, enactment date. Pub. L. No. 111-148, § 1556, 124 Stat. 119, 260 (2010) (“Section 1556”). In light of these amendments, survivors whose claims meet these temporal requirements need no longer demonstrate that the miner’s death was caused by pneumo-coniosis; instead, the survivors need only show that the miner was determined to be eligible to receive BLBA benefits at the time of his death.

As the author points out, everyone agrees that the ACA’s amendments to § 1556 apply to new requests for survivors’ benefits and to pending claims filed after January 1, 2005. The point of disagreement, however, is whether the amendments apply to claims denied before January 1, 2005, and refiled after the March 23, 2010, effective date. In unanimous decisions, two panels of this court, along with three of our sister circuits, have answered that question in the affirmative. See Peabody Coal Co. v. Dir., Office of Workers’ Comp. Programs, 577 Fed.Appx. 469, 470 (6th Cir. 2014); Consolidation Coal Co. v. Maynes, 739 F.3d 323, 325 (6th Cir. 2014) (Donald, J.); Jim Walter Res., Inc. v. Dir., Office of Workers’ Comp. Programs, 766 F.3d 1333 (11th Cir. 2014); Marmon Coal Co. v. Dir., Office of Workers’ Comp. Programs, 726 F.3d 387 (3d Cir. 2013); Union Carbide Corp. v. Richards, 721 F.3d 307 (4th Cir. 2013). No circuit court to have considered this issue has reached a contrary conclusion.

The arguments now raised by the authoring judge merely reiterate the arguments made by the respective coal companies in these cases. All of these arguments have consistently been rejected. The author first takes issue with this court’s finding that “Congress was silent ... as to whether persons ... whose claims had been denied under the previous eligibility framework[ ] could receive benefits by filing a subsequent claim.” Consolidation Coal, 739 F.3d at 326. The other circuits have made the same observation. See Jim Walter Res., 766 F.3d at 1335 (“[The coal company] objects to [the court’s] interpretation [of the statute], noting that this construction necessarily implies that all subsequent claims filed by previously denied survivors will benefit from the amendments. [The coal company] is correct, but we find no indication that Congress intended otherwise.”); Marmon Coal, 726 F.3d at 392 (“Section 1556(c) ... refers to ‘claims’ without any qualifying language. The reference to claims is not explicitly limited to ‘first time’ or ‘original’ claims and it does not explicitly exclude ‘subsequent’ claims.”); Richards, 721 F.3d at 310 (“Section 1556 is silent as to whether survivors whose previous claims were denied may now receive benefits by filing ‘subsequent’ claims under amended Section 932©.”). The author, however, suggests there is no silence in the statutory scheme, and instead avers that Congress spoke to the issue at hand by stating that “ ‘pending’ claims (if filed after January 1, 2005) and claims filed ‘after’ passage of the Act [on March 23, 2010,] would receive the benefit of the changes.”

I would first note that the author’s phrasing beneficially inverts the language of the provision. Section 1556(c) actually reads as follows: “The amendments made by this section shall apply with respect to claims filed ... after January 1, 2005, that are pending on or after the enactment of this Act.” There is simply nothing in the plain language of this provision supporting the argument that persons whose claims for survivors’ benefits were rejected prior to the amendments in the ACA cannot assert subsequent claims. The word “claim” is not qualified by the addition of any modifying terms such as “new,” “first time,” “original,” or any variation thereof. See Marmon Coal, 726 F.3d at 392; Richards, 721 F.3d at 313-14. If Congress had intended to exclude subsequent claims, it could have done so explicitly through the simple expedient of adding a modifying adjective. In the absence of clear congressional intent to achieve this result, it is not the place of the courts to read gratuitous limiting language into a statutory provision. See Lamie v. U.S. Trustee, 540 U.S. 526, 534, 124 S.Ct. 1023, 157 L.Ed.2d 1024 (2004) (“[W]hen the statute’s language is plain, the sole function of the courts—at least where the disposition required by the text is not absurd—is to enforce it according to its terms.” (quoting Hartford Underwriters Ins. Co. v. Union Planters Bank, N.A., 530 U.S. 1, 6, 120 S.Ct. 1942, 147 L.Ed.2d 1 (2000)) (internal quotation marks omitted)).

The author then excavates five words from the post-enactment comments of Senator Robert C. Byrd, the sponsor of § 1556, in an effort to find support for his position. The statement, in greater detail, is as follows:

It is clear that [section 1556] will apply to all claims that will be filed henceforth, including many claims filed by miners whose prior claims were denied, or by widows who never filed for benefits following the death of a husband. But section 1556 will also benefit all of the claimants who have recently filed a claim, and are awaiting or appealing a decision or order, or who are in the midst of trying to determine whether to seek- a modification of a recent order.
Section 1556 applies immediately to all pending claims, including claims that were finally awarded or denied prior to the date of enactment of the Patient Protection and Affordable Care Act, for which the claimant seeks to modify a denial, or for which other actions are taken in order to modify an award or denial.... Section 1556 applies even if a final order is modified, or actions are taken to bring about the modification of an order, subsequent to the date of enactment of the Patient Protection and Affordable Care Act....

156 Cong. Rec. S2083 (daily ed. March 25, 2010). The petitioner coal companies referenced this same statement before the Third Circuit in Marmon Coal and the Fourth Circuit in Richards. See Marmon Coal, 726 F.3d 387, 392-93; Richards, 721 F.3d at 316. The Fourth Circuit succinctly dispensed with this argument:

Petitioners attempt to divine congressional intent to exclude subsequent claims from the amendment’s ambit by parsing a single post-enactment statement of the late Senator Robert C. Byrd, sponsor of Section 1556.... [But] [a]s the Supreme Court has observed, ‘[p]ost-enactment legislative history (a contradiction in terms) is not a legitimate tool of statutory interpretation.’ Bruesewitz v. Wyeth LLC, [562 U.S. 223], 131 S.Ct. 1068, 1081, 179 L.Ed.2d 1 .(2011). In any case, although Senator Byrd’s statement may imply that the amendment excludes those widows who did file prior claims for benefits, it does not explicitly state as much. Meanwhile, his observation that the amendment applies to ‘all claims that will be filed henceforth’ can be read to encompass subsequent claims, and his description of the scope of the statute as ‘including’ certain types of claims connotes that his selected examples were intended to be illustrative of the amendment’s reach, not exhaustive. In short, any inference drawn from Senator Byrd’s ambiguous post-enactment statement cannot overcome the plain text of the amendment, which indicates its application to ‘all claims,’ without qualification.

Richards, 721 F.3d at 316.

The author goes on to argue that the prevailing interpretation of this statute transforms it, for all practical purposes, into one that mirrors the statute invalidated in Plaut. As the argument goes: if our interpretation of § 1556 is correct, then Congress has impermissibly assumed judicial power by reinstating a cause of action finally adjudicated by an Article III court. Further, the circuit courts are charged with “sidestepping]” Plant by claiming that the ACA created a “new cause of action” rather than reopening, a final judgment.

The ACA did indeed create a new cause of action, a fact that is not a judicially created “label” designed to evade Plaut. To reach this conclusion, we can start with the simple premise that the ACA, as the author acknowledges, reinstated the pre-1981 rule that survivors of miners suffering from pneumoconiosis and receiving benefits while alive are automatically entitled to benefits. From 1981 until the ACA’s enactment in 2010, survivors could only obtain benefits by proving that the miner’s death was due to pneumoconiosis. But, as everyone acknowledges, by reinstating the pre-1981 rule, the ACA’s amendments dispense with this requirement and mandate that survivors are automatically entitled to benefits irrespective of whether the miner’s death was due to pneumoconiosis. Under the current regime, survivors whose claims meet the aforementioned temporal requirements need only show that the miner was determined to be eligible to receive BLBA benefits at the time of his death.

Inherent in acknowledging that the ACA reinstated the prior rule is acknowledging that the rule—which is what gives rise to the cause of action—did not exist when the rule was not in place. Because the amendment created a new cause of action that was unavailable to these survivors when they brought their initial claims—or at least reinstated a cause of action that was repealed from 1981 to 2010—res judicata does not bar their subsequent claims. Res judicata has four elements:

(1) a final decision on the merits by a court of competent jurisdiction; (2) a subsequent action between the same parties or their privies; (3) an issue in the subsequent action which was litigated or which should have been litigated in the prior action; and (4) an identity of the causes of action.

In re Alfes, 709 F.3d 631, 638 (6th Cir. 2013) (quoting Kane v. Magna Mixer Co., 71 F.3d 555, 560 (6th Cir. 1995)). At issue in these cases is the identity of the causes of action.

The coal companies, in invoking res judi-cata, and the author, in suggesting that subsequent claims are not “new” because they arise from the same “nucleus of operative fact,” ignore the fact that it is not solely changes in fact that give rise to a fresh cause of action. See Richards, 721 F.3d at 315. Changes in the law can have the same effect, especially when those changes modify which facts are considered relevant. IcL; see also Marmon Coal, 726 F.3d at 395 (“In [the survivor’s] first claim, [she] could recover only by proving that her husband’s death was due to pneumoco-niosis. The resolution of that issue centered on the fact-finder’s review of medical evidence. In contrast, in her subsequent claim, [the survivor] can recover without proving that her husband’s death was due to pneumoconiosis. The cause of death is not at issue, and the medical evidence presented during the first claim is no longer relevant. Rather, [the survivor’s] entitlement to benefits turns primarily on an administrative fact—whether her husband had been awarded benefits. This administrative fact was not relevant to her first claim. The subsequent claim thus involves a different cause of action, and res judicata does not prevent [the survivor] from receiving survivors’ benefits under the BLBA.” (footnotes omitted)).

Simply stated, neither the doctrine of res judicata nor appeals to general separation-of-powers principles can preclude parties from bringing claims that did not exist at the time of the prior proceeding, and where the relevant statute does not explicitly prohibit them. Consolidation Coal, 739 F.3d at 327. The arguments of the author, far from presenting “another way of looking at the issue,” merely reiterate arguments that have already been presented, carefully considered, and uniformly rejected by circuit courts across the country.

       Judge Boggs recused himself from participation in this ruling.