author: GREGG COSTA, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee v. Tamny Denise WESTBROOKS, also known as Tammy Westbrooks, also known as Tammy Westbrook, Defendant-Appellant
    No. 16-20409
    United States Court of Appeals, Fifth Circuit.
    FILED May 24, 2017

      Samuel Robert Lyons, U.S. Department of Justice, Tax Division, Appellate Section, Gregory Victor Davis, Attorney, U.S. Department of Justice, Tax Division, Gregory S. Knapp, U.S. Department of Justice, Criminal Appeals & Tax Enforcement Policy Section, Washington, DC, Carmen Castillo Mitchell, Assistant U.S. Attorney, U.S. Attorney’s Office, Southern District of Texas, Houston, TX, for Plaintiff-Appellee.
    Michael Martin Essmyer, Sr., Esq., Ess-myer & Daniel, P.C., Houston, TX, for Defendant-Appellant.
    Before STEWART, Chief Judge, and HIGGINBOTHAM and COSTA, Circuit Judges.
   GREGG COSTA, Circuit Judge:

Taxes were Tamny Denise Westbrooks’s profession. She operated two businesses that helped people prepare their taxes. But it was misrepresenting profits from one of her own tax preparation business that got her into trouble. An indictment alleged that her returns falsely stated the income by grossly inflating amounts paid for wages. It also alleged that Westbrooks took steps to obscure the amount workers were actually paid. A jury found that the evidence supported those charges, convicting Westbrooks of corruptly endeavoring to obstruct the administration of the tax code and of three counts of filing fraudulent tax returns. Westbrooks challenges the obstruction count on various grounds and also appeals the restitution order. We uphold the convictions and amount of the restitution award but modify the judgment so the restitution obligation is limited to the superyised release term that is the only period during which restitution can be imposed for a tax offense.

I.

Westbrooks operated a tax preparation business, JATS Tax Service, in Charlotte, North Carolina. Tonya Robbins owned the company, but Westbrooks managed day-to-day operations and had signature authority for JATS’s checking account. At the same time, Westbrooks co-operated another tax preparation business, CF&W Financial Services, in Houston.

The first sign of trouble came when the IRS executed a search warrant at JATS’s office in 2009, and Westbrooks received a grand jury subpoena to produce records related to JATS. United States v. Westbrooks, 780 F.3d 593, 594 (4th Cir. 2015). Westbrooks produced only “a packet of materials comprised primarily of unopened mail and refund checks for clients.” Id. The government, noting that most of the documents Westbrooks had provided were not responsive and that she had not produced documents typically maintained by an ongoing business operation, moved for an order to show cause why she should not be held in contempt. Id. A federal district court in North Carolina held a show cause hearing. Id. at 595. At the hearing, Westbrooks testified that from 2005 to 2009 no W-2s or 1099s were prepared or filed for JATS workers, that she kept no records identifying the employees of JATS, did not keep track of their wages or the hours they worked, and that Robbins had already handed over all bank records responsive to the subpoena, which should support the amounts reflected as wages in the tax returns. The court found West-brooks guilty of criminal contempt “for failure to comply with a grand jury subpoena.” Id. at ⅞94.

A Houston grand jury later charged Westbrooks with one count of corruptly endeavoring to obstruct the due administration of the internal revenue laws (count one), and three counts of willfully filing false tax returns for 2007, 2008, and 2009 (counts two through four). The obstruction count was based on conduct occurring from 2004 through 2009, including submitting the returns that falsely stated low income for JATS. The indictment alleged that although annual compensation for all JATS workers never exceeded $30,000, the returns listed wages or subcontractor expenses ranging from $87,425 to $248,400 during these years. This count further alleged that Westbrooks did not properly file IRS and social security forms documenting compensation of JATS employees and made such payments in cash. Finally, it relied on her providing false and misleading testimony at the show cause hearing.

Westbrooks unsuccessfully moved to dismiss count one, arguing that the indictment failed to allege that there was an ongoing IRS investigation or proceeding during the obstructive conduct, that the statute was vague, and that venue was lacking. After a four-day trial, a jury convicted Westbrooks on all counts.

The district court imposed a total sentence of 40 months. It also ordered her to pay $273,460 in restitution to the IRS in quarterly installments of $25 or half of prison earnings, whichever is greater, while incarcerated, and in the monthly amount of $400 or ten percent of gross earnings, whichever is greater, during the year of supervised release that would follow her prison term.

II.

A.

Westbrooks contends the indictment did not allege an essential element of the tax obstruction statute because it did not assert that she acted with knowledge of a pending IRS action such as an investigation or proceeding. Westbrooks was convicted under the omnibus clause of the statute, which makes it a crime to “in any ... way corruptly or by force or threats of force .,.. obstruct! ] or impede[], or endeavor[] to obstruct or impede, the due administration of this title.” 26 U.S.C. § 7212(a). The clause does not mention a proceeding or investigation.

Our prior cases involving section 7212(a) do not directly confront this question but treat the statute as not requiring knowledge of a pending IRS action. In United States v. Reeves, 752 F.2d 995 (5th Cir. 1985), the defendant knew he was being investigated—he violated section 7212(a) by filing a lien against the residence of an IRS agent investigating his tax returns. Id. 996-97. Nonetheless, in defining the scope of the “corruptly” element, we recognized that the tax obstruction statute “reaches a broad category of circumstances.” Id. at 1000. We thus defined “corruptly” narrowly—to require that the defendant acted “with the intent to secure an unlawful benefit,” id. at 1001'—because “interference with the administration of the tax laws need not concern a proceeding in which a party stands to gain an improper advantage.... ” Id. at 999 (emphasis added). In contrast, we noted that an obstruction statute like 18 U.S.C. § 1503 that limits obstruction to that occurring in connection with a judicial proceeding does not necessitate an “intent to benefit” finding; obstruction in response to a pending action “will almost necessarily result in an improper advantage.” Id.

After Reeves, we upheld convictions under section 7212(a) when there was no pending action: the convictions were based on defendants’ corrupt efforts to trigger an investigation into others. United States v. Saldana, 427 F.3d 298, 301, 304-05 (5th Cir. 2005) (noting that that the defendant filed “false tax reports regarding several individuals for the purpose of triggering [IRS] audits and thereby harassing and intimidating these individuals”). In doing so, we rejected the defendants’ contention that section 7212(a) requires intent to gain a benefit under the tax laws. Id. If section 7212(a) does not require even that intent, it would not seem to require intent to gain a benefit in a particular investigation or proceeding.

To the extent we have not already rejected Westbrooks’s position, we do so now, joining a majority of the circuits to consider the question. Of the five circuits to directly address th,e issue, only the first to consider the question adopted Westbrooks’s position, and one judge dissented from that ruling. See United States v. Kas- souf, 144 F.3d 952, 955-58 (6th Cir. 1998). Four have since held that section 7212(a) does not require an ongoing IRS action. United States v. Floyd, 740 F.3d 22, 32, 32 n.4 (1st Cir. 2014) (“A conviction for violation of section 7212(a) does not require proof of either a tax deficiency ... or an ongoing audit,” so “the filing of false tax documents” or “concealment of income or other assets from the IRS can form the basis for a violation of the statute”); United States v. Marinello, 839 F.3d 209, 222 (2d Cir. 2016) (“[S]ection 7212(a)’s omnibus clause criminalizes corrupt interference with an official effort to administer the tax code, and not merely a known IRS investigation.”); United States v. Massey, 419 F.3d 1008, 1010 (9th Cir. 2005) (“[T]he government heed not prove that the defendant was aware of an ongoing tax investigation to obtain a conviction under § 7212(a); it is sufficient that the defendant hoped ‘to benefit financially’ from [his] conduct.”); United States v. Sorensen, 801 F.3d 1217, 1232 (10th Cir. 2015), cert. denied, — U.S.-, 136 S.Ct. 1163, 194 L.Ed.2d 176 (2016) (“7212(a) does not require an ongoing proceeding....”).

As these cases explain, Kassouf did not correctly interpret section 7212(a). Kassouf relied on United States v. Aguilar, 515 U.S. 593, 600, 115 S.Ct. 2357, 132 L.Ed.2d 520 (1995), which held that a conviction under section 1503 requires a nexus between the underlying conduct and judicial proceedings. Id. But the text of section 7212(a) is substantially different from that of section 1503. First, section 1503’s “due administration of justice” provision follows a list “of specific prohibitions of conduct that interferes with actual judicial proceedings” which “supports a reading that tethers the ‘due administration of justice’ to actual grand jury or judicial proceedings.” Marinello, 839 F.3d at 220 (quoting United States v. Wood, 384 Fed.Appx. 698, 704 (10th Cir. 2010)). In contrast, section 7212(a) begins by referring to attempts to interfere with officers “acting in an official capacity.” Id. Second, section 1503 refers to the “due administration of justice” as opposed to the “due administration of this title.” Id. Both differences indicate section 7212(a) criminalizes a broader range of conduct: the IRS, through a variety of official actions, “duly administer[s] the tax laws even before initiating a proceeding.” Sorensen, 801 F.3d at 1232. Courts administer justice only through proceedings.

The history of the provisions is also different. Marinello, 839 F.3d at 221. Aguilar relies on Pettibone v. United States, 148 U.S. 197, 202, 13 S.Ct. 542, 37 L.Ed. 419 (1893). Pettibone interpreted an earlier version of section 1503, which made it a crime to “corruptly endeavor[ ] to influence, intimidate, or impede any witness or officer in any court of the United States in the discharge of his duty, or corruptly ... endeavorf ] to obstruct or impede[ ] the due administration of justice therein.” 148 U.S. at 202, 13 S.Ct. 542 (emphasis added). Although Congress later removed “therein,” “there is no indication ... that, in doing so, it intended to fundamentally alter the statute’s meaning.” Marinello, 839 F.3d at 221. Section 7212(a) has no similar predecessor tying it to a proceeding.

Finally, section 7212(a)’s purpose supports the broader reading most courts have embraced. United States v. Rainey, 757 F.3d 234, 245 (5th Cir. 2014) (“[Ejven in a criminal case, a statute’s purpose may be a ‘consideration [that] strongly support[s]’ a textual interpretation.”). The breadth of section 7212(a)’s language shows that the omnibus provision was intended to prevent frustration of tax collection efforts, a purpose which' would be thwarted by Westbrooks’s narrow interpretation. “In a system of taxation such as ours which relies principally upon self-reporting, it is necessary to have in place a comprehensive statute in order to prevent taxpayers and their helpers from gaining unlawful benefits by employing that variety of corrupt methods that is limited only by the imagination of the criminally inclined.” United States v. Popkin, 943 F.2d 1535, 1540 (11th Cir. 1991) (internal quotation marks and citation omitted).

The indictment therefore did not fail to allege an essential element of the obstruction charge.

B.

Westbrooks argues that without her narrowing interpretation that requires a pending IRS action, section 7212(a) is unconstitutionally vague. To prevail on this claim, she must show that the statute “fails to provide a person of ordinary intelligence fair notice of what is prohibited, or is so standardless that it authorizes or encourages seriously discriminatory enforcement.’ ” United States v. McRae, 702 F.3d 806, 836-37 (5th Cir. 2012) (quoting Holder v. Humanitarian Law Project, 561 U.S. 1, 18, 130 S.Ct. 2705, 177 L.Ed.2d 355 (2010)).

Although Reeves does not involve a vagueness challenge, one reason it gives for its narrow construction of “corrupt” it to preserve the statute from vagueness challenges. 752 F.2d at 999-1000. Since then, every court to consider such a challenge to section 7212(a) has rejected it, reasoning that Reeves’s interpretation of “corrupt” provides sufficient clarity and notice. See, e.g., United States v. Kelly, 147 F.3d 172, 176 (2d Cir. 1998); United States v. Ring, 191 F.3d 462, 1999 WL 699489, at *1 (9th Cir. 1999); Wood, 384 Fed.Appx. at 706; Popkin, 943 F.2d at 1540.

Westbrooks again relies on Kas-souf, pointing out that the Sixth Circuit expressed concern that requiring no connection to a pending proceeding would expose section 7212(a) “to legitimate charges of overbreadth and vagueness.” 144 F.3d at 958. The Sixth Circuit reasoned that “out of the hundreds of people who file taxes every day, there is no guarantee that a particular tax return will be audited,” so “it would be highly speculative to find conduct such as the destruction of records, which might or might not be needed, in an audit which might or might not ever occur, is sufficient to make out an omnibus clause violation.” Id. This ignores narrowing work done by other portions of the statute. As mandated by Reeves, only destruction of documents with the intent to gain an unlawful advantage would fall within section 7212(a).

In any event, regardless of whether section 7212(a) could be vague as applied to some conduct, “[a] person whose conduct is clearly proscribed by a statute cannot ... complain that the law is vague as applied to the conduct of others.” McRae, 702 F.3d at 837 (quoting Humanitarian Law Project, 561 U.S. at 18-19, 130 S.Ct. 2705). That describes West-brook. She fabricated compensation amounts on her returns and engaged in deceptive practices, such as making cash payments and not filing wage reporting documents to conceal the low amounts of compensation the workers received. See Reeves, 752 F.2d at 998 (finding section 7212(a) “directed at efforts to bring about a particular advantage such as impeding the collection of one’s taxes, the taxes of another, or the auditing of one’s or another’s tax records”); Wood, 384 Fed.Appx. at 706 (finding using deceptive techniques to hide income and assets from the IRS clearly covered).

Westbrooks rightly argues that, after Johnson v. United States, — U.S. -, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), section 7212(a) is not saved by the fact that some conduct clearly falls within a statute’s prohibition. Id. at 2561. But as several circuits have held, Johnson did not change the rule that a defendant whose conduct is clearly prohibited cannot be the one making that challenge. See United States v. Bramer, 832 F.3d 908, 909 (8th Cir. 2016) (“Though Bramer need not prove that § 922(g)(3) is vague in all its applications, our case law still requires him to show that the statute is vague as applied to his particular conduct.”); Arrigoni Enter., LLC v. Town of Durham, 629 Fed. Appx. 23, 26 (2d Cir. 2015); Maages Auditorium v. Prince George’s Cty., 681 Fed.Appx. 256, 264, 2017 WL 1019060, at *6 (4th Cir. 2017); United States v. Huff, 630 Fed.Appx. 471, 487 (6th Cir. 2015); United States v. Zagorovskaya, 628 Fed.Appx. 503, 504 (9th Cir. 2015); Miranda v. U.S. Att’y Gen., 632 Fed.Appx. 997, 1000 (11th Cir. 2015); Flytenow, Inc. v. FAA, 808 F.3d 882, 895 (D.C. Cir. 2015).

The vagueness challenge fails.

C.

So does Westbrooks’s argument that her prosecution violated the Double Jeopardy Clause in light of her earlier contempt conviction. As this argument is being made for the first time on appeal, it must satisfy the stringent plain error standard. United States v. Odutayo, 406 F.3d 386, 392 (5th Cir. 2005).

Westbrooks cannot overcome even the first hurdle that requires her to show error as if the argument had been preserved. Under Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932), two statutes are not the same offense if each contains an element not contained in the other. United States v. Dixon, 509 U.S. 688, 696, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993). Criminal contempt under 18 U.S.C. § 401(3) and the section 7212(a) obstruction statute are separate offenses. Among other things, section 7212(a) does not require proof of a court order, and section 401(3) does not require an endeavor to obstruct or impede due administration of the Internal Revenue laws. And the two convictions apply to different conduct. The contempt conviction involved Westbrooks’s failure to adequately respond to the subpoena; the obstruction conviction involved, among other conduct, her false testimony when she was questioned about that noncompliance in the North Carolina court.

D.

Westbrooks lastly challenges her count one conviction for lack of venue, asserting that JATS’s home in North Carolina was the appropriate place to try the case. A defendant has the right to be tried in the district in which the alleged crime was committed. U.S. Const. amend. VI; Fed. R. Crim. P. 18; United States v. Bryan, 896 F.2d 68, 72 (5th Cir. 1990). But venue may lie in more than one district: an “offense against the United States begun in one district and completed in another, or committed in more than one district, may be ... prosecuted in any district in which such offense was begun, continued, or completed.” 18 U.S.C. § 3237(a). So even if venue did lie in Charlotte federal court, Westbrooks also could be tried in Houston if part of a continuing pattern of obstructive conduct occurred there.

The five-year period of obstructive conduct alleged in count one was a continuing offense at least some of which took place in the Southern District of Texas. West-brooks’s actions in Houston and Charlotte were interrelated and in furtherance of the same desire to reduce her tax liability by inflating labor expenses. There was evidence she prepared and submitted the fraudulent tax returns charged in count one for herself and other JATS employees in Houston. For example, her tax returns from 2004 through 2009 containing the false JATS wage numbers, list CF&W, at its Houston address, as the tax preparer. So do returns Westbrooks prepared for JATS workers. This is sufficient to establish venue. See Bryan, 896 F.2d at 72 (finding knowingly and willfully aiding and assisting in the preparation or presentation of fraudulent tax returns in violation of 26 U.S.C. § 7206(2) a continuing offense and looking to the address listed for the tax preparer to determine venue); see also United States v. Nell, 570 F.2d 1251, 1256 (5th Cir. 1978) (same). There was venue in the Southern District of Texas.

III.

We next address Westbrooks’s challenges to the restitution the district court imposed. She challenges the statutory authority for the award as well as the amount awarded.

A.

A federal court cannot order restitution “except when authorized by statute.” United States v. Love, 431 F.3d 477, 479 (5th Cir. 2005). Westbrooks maintains the district court’s order of restitution was not authorized because: (1) the court imposed restitution as part of her sentence under a general restitution statute, which is not permitted for Title 26 offenses; and (2) even if the court imposed restitution as a condition of supervised release, which is permitted for Title 26 offenses, it was not authorized to do so because she did not agree to restitution in a plea bargain.

Regardless of whether West-brooks objected to the district court’s statutory authority to impose restitution, which the parties contest, we review de novo. A sentence that exceeds a court’s statutory authority should be corrected on plain error review, so we review whether restitution was illegally awarded as part of a sentence de novo, and if it was, find plain error. See United States v. Nolen, 523 F.3d 331, 382, 382 n.52 (5th Cir. 2008); United States v. Feast, 614 Fed.Appx. 195, 196-97 (5th Cir. 2015).

Neither the Victim and Witness Protection Act, 18 U.S.C. § 3663, nor the Mandatory Victim Restitution Act, 18 U.S.C. § 3663, allow restitution for a tax code offense under Title 26 (as opposed to offenses described in the general criminal code of Title 18). But several statutes, read together, allow district courts to order restitution for tax offenses as a condition of supervised release. Nolen, 523 F.3d at 332-33. The first link in the chain is 18 U.S.C. § 3583(d), which authorizes courts to impose, as a condition of supervised release, “any condition set forth as a discretionary condition of probation in section 3563(b).” Section 3563(b) in turn authorizes a district court to order “restitution to a victim of the offense under section 3556.” 18 U.S.C. § 3563(b). Section 3556 connects to the general restitution provision, authorizing a district court to “order restitution in accordance with section 3663,” which provides that a court “may order ... that the defendant make restitution to any victim of such offense.” 18 U.S.C. § 3663(a); see also United States v. Dahlstrom, 180 F.3d 677, 686 (5th Cir.1999). Although section 3663(a) limits restitution to non-Title 26 offenses, this limit does not apply to restitution as a condition of supervised release. Love, 431 F.3d at 481. Courts’ broad authority to order restitution as a condition of supervised release in tax cases is recognized in the Sentencing Guidelines and generally in the federal courts. See U.S.S.G. § 5E1.1(a)(2); United States v. Batson, 608 F.3d 630, 635 (9th Cir. 2010) (“The Supervised Release Statute, together with the Probation Statute, unambiguously authorizes federal courts to order restitution as a condition of supervised release for any criminal offense, including one under Title 26, for which supervised release is properly imposed.”).

Westbrooks does not quarrel with courts’ general authority to impose restitution as a condition of supervised release for Title 26 offenses, but she maintains the district court based its restitution order on the wrong statute. We have vacated restitution orders if the record shows that, although the district court could have imposed restitution as a condition of supervised release, it did not do so. See Feast, 614 Fed.Appx. at 196-97; Ortiz, 252 Fed.Appx. at 666. But that is not what happened here. The presentence report correctly states that “[b]ecause this is a Title 26 offense, mandatory restitution is not applicable” but “the Court can order restitution as a condition of [Westbrooks’s] supervised release term.” The judgment lists restitution as a special condition of supervision.

There is, however, some inconsistency in the judgment as it mandates that Westbrooks begin making restitution payments before she completes her sentence. It requires her to pay restitution to the IRS in quarterly installments of $25 or half of prison earnings during incarceration. And “a restitution award due prior to the commencement of a term of supervised release is a component of the sentence, not a condition of supervised release.” Feast, 614 Fed.Appx. at 197 (citing United States v. Howard, 220 F.3d 645, 647 (5th Cir. 2000)). Indeed, in Feast, we vacated a restitution award in part because it was due “immediately,” which was inconsistent with it being a condition of supervised release. Id. at 196. Similarly, the Seventh Circuit has held that because a district court did not articulate that basis for restitution and ordered that it was payable immediately, restitution was not imposed solely as a condition of supervised release. United States v. Hassebrock, 663 F.3d 906, 924-25 (7th Cir. 2011); see also United States v. Dean, 64 F.3d 660, 1995 WL 493006, at *4 (4th Cir. 1995) (unpublished table decision) (finding restitution award was not imposed solely as a condition of supervised release because it was due immediately).

But in those cases the record contained few indications the district court meant to impose restitution only as part of supervised release under 3583(d) to counteract the clue timing provided of an improper statutory basis. And it often was not just the timing of the restitution order that led to the conclusion that the court relied on improper statutory authority. In both Feast and Hassebrock, the presentence reports cited only section 3663 or section 3663A as the basis for restitution. 614 Fed.Appx. at 196-97; 663 F.3d at 924, 926. And in Hassebrock, the district court had explained that only if restitution was “not paid during imprisonment, it w[ould] be a condition of supervised release.” 663 F.3d at 924.

We thus conclude that the judgment contains an error in ordering that Westbrooks begin making payments while in prison—a timeline that exceeds the court’s statutory authority. But that error does not overcome the other indications that the court intended to impose restitution under the statute permitting it as part of supervised release. The most efficient remedy in this situation is to modify the judgment so that Westbrooks does not owe restitution until she begins her term of supervised release. See 28 U.S.C. § 2106; United States v. Munoz, 549 Fed.Appx. 552, 555-56 (7th Cir. 2013) (modifying timing of restitution payments because district court mistakenly ordered that restitution which could only be awarded as a condition of supervised release be due immediately).

Westbrooks also argues that United States v. Stout, 32 F.3d 901 (5th Cir. 1994), allows courts to impose restitution as a condition of supervised release only as part of a plea agreement. Stout states that “courts are permitted to impose restitution as a condition of supervised release to the extent agreed to by the government and the defendant in a plea agreement.” Id. at 904. Stout applied section 3663(a)(3), which states that a “court may also order restitution in any criminal case to the extent agreed to by the parties in a plea agreement.18 U.S.C. § 3663(a)(3) (emphasis added). Westbrooks has not pointed to any case holding that restitution is off limits as a condition of supervised release when a defendant is convicted after a trial. In fact, we have recognized that “in the absence of an agreement by the defendant, restitution may not be ordered for a Title 26 offense except as a condition of probation or supervised release, under 18 U.S.C. 3583(d), 3563(b)(2), and 3556.” Nolen, 523 F.3d at 332-33 (emphasis added); see also Feast, 614 Fed.Appx. at 197. And we have approved restitution orders as conditions of supervised release after trial and conviction. See Nolen, 523 F.3d at 332-33; Dahlstrom, 180 F.3d at 686. We see no basis for creating the “counterintuitive” and atextual limitation Westbrooks proposes. See United States v. Miller, 406 F.3d 323, 329-30 (5th Cir. 2005) (noting that section 3583 does not manifest the “counterintuitive intention” that it “precluded] the imposition of restitution as a condition of supervised release in any case in which the defendant goes to trial”).

B.

Westbrooks next objects to the amount of restitution awarded, and, relatedly, the tax loss calculation used in determining her sentencing range. We review the amount of a restitution award for abuse of discretion, reviewing factual findings for clear error. United States v. Sharma, 703 F.3d 318, 322 (5th Cir. 2012). Restitution is limited to the actual loss caused by the defendant’s offense of conviction. Id. at 323. We similarly review a loss calculation under the Sentencing Guidelines for clear error. United States v. Johnson, 841 F.3d 299, 303 (5th Cir. 2016). When the loss is “uncertain,” a court may “simply make a reasonable estimate based on the available facts.” U.S.S.G. § 2T1.1 cmt. n.1; see United States v. Reasor, 541 F.3d 366, 369 (5th Cir. 2008) (noting that to support a sentence, “all that is necessary is that [a tax loss] finding be plausible in light of the record as a whole.” (internal citations and quotation marks omitted)). For both restitution and sentencing purposes, we “give[] the district court wide latitude to determin[e] the amount of loss.” United States v. Cothran, 302 F.3d 279, 287 (5th Cir. 2002); United States v. Aubin, 87 F.3d 141, 150 (5th Cir. 1996).

Westbrooks argues restitution should be limited to $177,258.00 in tax loss for tax years 2007 through 2009, in other words, to losses related to the years that were the basis for the three counts of filing false returns. But the district court also awarded restitution for the obstruction conviction. The $273,460 awarded represents the tax reduction Westbrooks gained by including excessive wages and subcontractor expenses on tax returns for three additional years from 2004-2006. The fraudulent reporting dating back to 2004 was charged as part of the obstruction offense in count one. Other circuits have held that restitution may include tax loss caused by a violation of section 7212(a). See United States v. Scheuneman, 712 F.3d 372, 380 (7th Cir. 2013) (“[T]he 2000-2002 tax losses were properly included within [defendant’s] restitution obligation because they were directly attributable to his conviction ... for interference with administration of the Internal Revenue laws in violation of 26 U.S.C. § 7212(a)”); United States v. Harrison, 541 Fed.Appx. 290, 293 (4th Cir. 2013) (“[Defendant] overlooks his conviction ... for interference with the administration of the internal revenue laws, in violation of 26 U.S.C. § 7212(a). This count covered a broader swath of conduct and amply supports the full restitution award.”). We agree with those decisions and find no error in including tax loss dating back to 2004.

Westbrooks further objects that the record does not support the amounts by which the IRS determined she overstated payments to JATS workers. The IRS calculated that number “based on the actual amount of wages that were paid as reported by JATS Tax Service workers who testified.” The loss amount for the years 2007 through 2009 was based on testimony at trial and was not clearly erroneous.

Former employees did not testify at trial about their wages for the three earlier tax years. Instead, the IRS agent testified that he reviewed bank records and identified checks which appeared to be for payroll for those years. The checks totaled $13,885 for 2004 (compared to $87,425 reported); $10,205 for 2005 (compared to $124,878 reported); and $2,420 for 2006 (compared to $193,426 reported). Recognizing that JATS also paid workers in cash, in providing a calculation for the presentence report, the IRS adjusted these amounts upward based on statements JATS workers gave during the investigation. This adjustment added cash payments of $11,785, $10,180, and $13,600 to the check amounts for 2004, 2005, and 2006. Westbrooks complains that there is no testimony in the record as to the amount employees were paid in cash from 2004 through 2006. But she does not claim she lacked access to the summaries of the witness interviews and in-court testimony is not necessary to support a restitution award or loss calculation. Indeed, information in a presentence report is generally sufficient to support an award. United States v. Zuniga, 720 F.3d 587, 590-91 (5th Cir. 2013); United States v. Davis, 616 Fed.Appx. 742, 745 (5th Cir. 2015). If a defendant takes issue with information in the report with sufficient indicia of reliability, “the defendant bears the burden of demonstrating that the information cannot be relied upon because it is materially untrue, inaccurate or unreliable.” United States v. Angulo, 927 F.2d 202, 205 (5th Cir. 1991). Probation’s calculation appears reliable given its consistency with the numbers used for the later years, and Westbrooks did not carry her burden of presenting “[r]ebuttal evidence.” Zuniga, 720 F.3d at 591 (internal quotation marks and citation omitted). The figure used for restitution and the loss amount is not clearly erroneous.

The judgment is MODIFIED so that no amount of restitution is due until West-brooks completes her prison sentence and begins her term of supervised release. As modified, the judgment is AFFIRMED.

      . The Sixth Circuit recently reaffirmed Kassouf. United States v. Miner, 774 F.3d 336, 345 (6th Cir. 2014).

      . Westbrooks unsuccessfully attempts to distinguish Floyd and Massey. Floyd is a sufficiency of the evidence case, but it held that evidence was sufficient to support an obstruction conviction because no evidence of an ongoing audit was required. 740 F.3d at 32. Floyd said Kassouf is not "good law." Id. at 32 n.4. Massey, addressing the adequacy of a jury charge, held that the charge was correct because the government was not required to prove knowledge of an ongoing investigation. 419 F.3d at 1010.

      . The full text of the provisions is as follows:
      Whoever corruptly, or by threats or force, or by any threatening letter or communication, endeavors to influence, intimidate, or impede any grand or petit juror, or officer in or of any court of the United States, or officer who may be serving at any examination or other proceeding before any United States magistrate judge or other committing magistrate, in the discharge of his duty, or injures any such grand or petit juror in his person or property on account of any verdict or indictment assented to by him, or on account of his being or having been such juror, or injures any such officer, magistrate judge, or other committing magistrate in his person or property on account of the performance of his official duties, or corruptly or by threats or force, or by any threatening letter or communication, influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice, shall be punished. ...
      18U.S.C. § 1503.
      Whoever corruptly or by force or threats of force (including any threatening letter or communication) endeavors to intimidate or impede any officer or employee of the United States acting in an official capacity under this title, or in any other way corruptly or by force or threats of force (including any threatening letter or communication) obstructs or impedes, or endeavors to obstruct or impede, the due administration of this title, shall [be punished]....
      26 U.S.C. § 7212(a).

      . Arthur Andersen LLP v. United States, 544 U.S. 696, 125 S.Ct. 2129, 161 L.Ed.2d 1008 (2005), also does not support Westbrooks’s view. Although that case found that the government must prove a "nexus” between certain acts and a particular proceeding, the statute it applied, 18 U.S.C. § 1512(b), by its terms applies to obstruction of an "official proceeding.” Id. at 707, 125 S.Ct. 2129.

      . Westbrooks’s argument, raised in her reply brief, that the legislative history of 7212(a) indicates that the provision was intended to address only interference with IRS agents is: (1) counteracted by the text of the provision, which refers to action that obstructs "any officer or employee of the United States acting in an official capacity under this title or in any other way ... obstructs or impedes” administration of the title; and (2) has been convincingly rejected by other courts, see United States v. Martin, 747 F.2d 1404, 1409 (11th Cir. 1984) ("Congress was not required to list in the legislative history every conceivable corrupt endeavor to avoid waiving the statute's application to one type of corrupt endeavor.”); United States v. Bowman, 173 F.3d 595, 598 (6th Cir. 1999); United States v. Mitchell, 985 F.2d 1275, 1279 (4th Cir. 1993).

      . The reply briefs invocation of the collateral-estoppel aspect of double jeopardy, see Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), is too late. In any event, there is no prior ruling in Westbrooks’s favor to support such an argument. She was found guilty at the contempt trial.

      . The government says United States v. Ortiz, 252 Fed.Appx. 664, 665-67 (5th Cir. 2007), applies plain error review to whether restitution was imposed under the wrong statute, but the court did the same thing in Ortiz as it did in Nolen and Feast. Recognizing the legality of the sentence was at issue, it engaged in a de novo “careful examination of the record” which showed the district court awarded restitution under section 3663, not as a condition of supervised release, then considered whether awarding restitution under the wrong statute was plain error, summarily concluding that it was. Id.

      . Westbrooks does not explain how testimony that four people worked at JATS on some occasions invalidates the tax loss calculation.


source: Caselaw Access Project

author: LESLIE H. SOUTHWICK, Circuit Judge:

license: Public Domain

text:
    Matthew DEWAN, Individually and On Behalf of All Others Similarly Situated; William J. Casey, Plaintiffs-Appellants v. M-I, L.L.C., doing business as M-I SWACO, Defendant-Appellee
    No. 16-20182
    United States Court of Appeals, Fifth Circuit.
    Filed May 30, 2017

      Melissa Ann Moore, Esq., Curt Christopher Hesse, Moore & Associates, Houston, TX, for Plaintiffs-Appellants.
    Robert Peter Lombardi, Esq., Samuel Zurik, III, Attorney, Kullman Firm, New Orleans, LA, Martin Joseph Regimbal, Esq., Kullman Firm, Columbus, MS, for Defendant-Appellee.
    Before DAVIS, DENNIS, and SOUTHWICK, Circuit Judges.
   LESLIE H. SOUTHWICK, Circuit Judge:

Two oilfield workers sued their employer for unpaid overtime wages. The district court granted summary judgment on the defendant’s affirmative defense that the plaintiffs fell under the administrative exemption of the Fair Labor Standards Act. Finding there to be genuine disputes of material fact that affect whether the exemption applies, we REVERSE and REMAND.

FACTUAL AND PROCEDURAL BACKGROUND

Defendant M-I SWACO is an oilfield service company that specializes in engineering drilling-fluid systems and additives designed to improve performance for oil and gas well drilling operations. As part of its business, M-I employs Drilling Fluid Specialists, or “mud engineers,” who work at M-I customer locations to manage the drilling-fluid system and interact directly with the customers by providing advice and other support.

The minimum educational requirement for a mud engineer is a high-school diploma. Once hired, mud engineers undergo an eight-week training program at M-I’s office in Houston, Texas. During the program, trainees receive basic instruction on the functions of drilling fluids, their physical and chemical properties, mathematics, and training on the proper use of testing equipment and computer software.

A mud engineer works to ensure the properties of the drilling fluid, also known as drilling mud, are within designed specifications as set forth in the mud plan, which is created by a project engineer at M-I’s headquarters and is based on historical drilling in the area. Both plaintiffs claimed that they did not have authority to deviate from the mud plan. Mud engineers perform their duties either by “sitting” on the customer’s well (an extended, round-the-clock monitoring of one drill site) or doing a “drive-by” (quick visits to multiple drill sites).

To ensure the drilling mud is performing adequately and within its designated parameters, mud engineers test the mud’s pH, rheology, weight, and viscosity. The tests are generally conducted either in a lab trailer at the customer’s site or on the tailgate of the mud engineer’s assigned company vehicle. Plaintiff Dewan testified at his deposition that, after testing was complete, he would provide recommendations to the “company man.” These recommendations were largely accepted without further inquiry. The plaintiffs were typically the only M-I employees or mud engineers on site.

M-I employed Plaintiffs Matthew Dewan and William Casey as mud engineers until December 2012. On December 14, 2012, Dewan filed a putative class-action suit against M-I, alleging violations of the overtime provisions of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201-19. That same day, Casey consented to join the suit pending collective or class-action certification. After discovery closed, M-I moved for summary judgment on various grounds, including that the plaintiffs were exempt from the FLSA’s overtime requirements under 29 U.S.C. § 213(a)(1). The plaintiffs separately moved for judgment on the pleadings under Federal Rule of Civil Procedure 12(c).

The district court (1) denied the plaintiffs’ motion for judgment on the pleadings; (2) denied M-I’s motion for summary judgment as to the claim that Casey was not a party to the lawsuit; (3) denied M-I’s motion as to the FLSA’s outside sales and combination exemptions; and (4) granted M-I’s motion on the grounds that the plaintiffs fell under the FLSA’s administrative exemption. The plaintiffs timely appealed.

DISCUSSION

In 1938, Congress enacted the FLSA in an effort to ensure each employee covered by the Act would receive “[a] fair day’s pay for a fair day’s work and would be protected from the evil of overwork as well as underpay.” Barrentine v. Arkansas-Best Freight Sys., Inc., 450 U.S. 728, 739, 101 S.Ct. 1437, 67 L.Ed.2d 641 (1981). One way the FLSA effectuates these goals is through its overtime provision, which requires an employer to compensate any covered employee who works in excess of 40 hours in a workweek “at a rate not less than one and one-half times the [employee’s] regular rate.... ” 29 U.S.C. § 207(a)(1). Relevant here, the FLSA excludes from its overtime requirement those employees working “in a bona fide executive, administrative, or professional capacity....” Id. § 213(a)(1).

The district court granted summary judgment for M-I, holding that these employees were exempt from the overtime rules. In our de novo review, we use the same standards as did the district court in considering facts and analyzing law. Owsley v. San Antonio Indep. Sch. Dist., 187 F.3d 521, 523 (5th Cir. 1999). Summary judgment is proper when the movant shows there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a).

When summary judgment is sought on an affirmative defense, as here, the movant “must establish beyond peradventure all of the essential elements of the claim or defense to warrant judgment in his favor.” Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986). “Once the movant does so, the burden shifts to the nonmovant to establish an issue of fact that warrants trial.” Smith v. Reg’l Transit Auth., 827 F.3d 412, 420 n.4 (5th Cir. 2016). The burden of proof on exempt status is on the employer. Owsley, 187 F.3d at 523. Because of the Act’s remedial nature, we narrowly construe its exemptions in favor of the employee. Id.

To all these statements we add something further. There is no dispute about what these two engineers did from day to day. Even so, more is involved of relevance here than just a record of the plaintiffs’ daily activities. Those facts must be interpreted based on the regulations. For the administrative exemption to apply, the employee must be one (1) who is “[cjompen-sated on a salary or fee basis at a rate of not less than $455 per week;” (2) “[w]hose primary duty is the performance of office or non-manual work directly related to the management or general business operations of the employer or the employer’s customers;” and (3) “[w]hose primary duty includes the exercise of discretion and independent judgment with respect to matters of significance.” 29 C.F.R. § 541.200. The compensation of the plaintiffs is clearly sufficient. The second and third criteria, though, require a fact-finder to analyze the facts to determine the employee’s primary duty, how the work directly relates to certain parts of the employer’s business, and whether the duty involves some discretion and independence.

We choose two examples to make the point. Even if the evidence is undisputed about the mud engineers’ activities, a fact-finder might also need to decide if what they do is the equivalent of “performing] specialized work along standardized lines involving well-established techniques and procedures!.]” § 541.203(g). Further, would a fact-finder believe the mud engineers are exercising “discretion and independent judgment” when they perform their tasks, with that quoted phrase requiring consideration of “all the facts involved in the particular employment situation” as further explained by a lengthy list of nonexhaustive factors? See § 541.202(b). Most of that is fact-finding, not legal analysis.

It is with these considerations that we unpack the legal question we must answer—namely, do the plaintiffs fall within the FLSA’s administrative exemption? “That ultimate determination, however, relies on many factual determinations that can be resolved by a jury.” Singer v. City of Waco, 324 F.3d 813, 818 (5th Cir. 2003). We agree with one of this court’s unpublished opinions that we should consider “the amount of time the employee devotes to particular duties, as well as the significance of those duties.... ” Zannikos v. Oil Inspections (U.S.A.), Inc., 605 Fed.Appx. 349, 352 (5th Cir. 2015). A check on any finding that facts are undisputed is that “the drawing of legitimate inferences from the facts are jury functions, not those of a judge, whether he is ruling on a motion for summary judgment or for a directed verdict.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

We conclude that there remain genuine disputes of material fact, as we will explain. In summary now, factual issues such as identifying these employees’ primary duties, or deciding if they exercised independent judgment and discretion, cannot be resolved without making inferences from the evidence that are subject to genuine dispute. Those interpretations cannot be said on this record to be resolvable on summary judgment.

All this review-standard throat-clearing out of the way, we turn to the issues before us. As we note above, the first criterion of the administrative exemption, which concerns the plaintiffs’ weekly earning, is clearly satisfied. Plaintiffs argue, however, that genuine issues of material fact exist as to the second and third criteria. Additionally, the plaintiffs argue the district court placed the burden on them to negate the affirmative defense while allowing M-I to rely on the absence of evidence of any element of the plaintiffs’ case. We will address the two contested criteria separately. We conclude there is error as to both criteria and find it necessary to examine each individually to show the extent of the fact-finding still needed on remand.

I. Work “Directly Related” to “Management or General Business Operations”

To repeat, the administrative exemption requires the employee to have as his “primary duty ... the performance of work directly related to the management or general business operations of the employer or the employer’s customers.” § 541.201(a). The regulations define an employee’s “primary duty” as the “principal, main, major or most important duty that the employee performs.” § 541.700(a). The “directly related” test is met by the employee’s “assisting with the running or servicing of the business, as distinguished, for example, from working on a manufacturing production line or selling a product in a retail or service, establishment.” § 541.201(a). Under that inquiry, it is “the type of work performed by the employee” on which we must focus. Id.

The plaintiffs argue that their job duties—or the types of work they perform as mud engineers—are fundamentally different from the kinds of positions the regulations set out as examples. Examples of work “directly related to management or general business operations” include such functional areas as human resources, marketing, quality control, and safety and health. § 541.201(b). Another regulation entitled “Administrative exemption examples” includes insurance-claims adjusters, financial-services employees, and human-resource managers. § 541.203. The plaintiffs argue that their mud-engineer position is far removed from both sets of examples.

The plaintiffs also rely on a recent Texas district court decision that denied summary judgment to an employer on its affirmative defense that its manufacturing engineer was subject to the FLSA’s administrative exemption. See Elliott v. Dril-Quip, Inc., No. H-14-1743, 2015 WL 7302764 (S.D. Tex. Nov. 18, 2015). There, the district court stated that “it is the actual day-to-day activities of the employees that determine whether the employee is exempt, not the labels the employer or employee place on those duties.” Id. at *6. The court found factual issues existed over the second criterion of whether a manufacturing engineer’s primary duty was directly related to the management or general business operations of the employer or its customers. Id. at *6-*9. There were also factual uncertainties about the third criterion, namely, whether the plaintiff exercised the requisite discretion and independent judgment. Id. at *10-*11. At least for summary judgment, the employer failed to establish that the employee “falls plainly and unmistakably within the terms and spirit of the exemption.” Id. at *11 (alteration omitted).

Relying on Elliott and the regulations, the plaintiffs argue the district court erred in concluding that they performed non-manual work for M-I or its customers. Instead, they contend mud engineers “produce those income-generating services” that are central to M-I’s business model. The plaintiffs seek to align their work as mud engineers with that of oil-well drillers. There is support for that comparison, as the Labor Department included oil-well drillers in a list of “Blue-Collar Occupations That Are Most Likely Nonexempt” under the regulations. See Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and Computer Employees, 69 Fed. Reg. 22,122, 22,242 (Apr. 23, 2004) (as codified at 29 C.F.R. pt. 541).

This court has addressed the needed analysis in a few opinions. Particularly relevant is a case in which we stated that the relevant distinction “is between those employees whose primary duty is administering the business affairs of the enterprise [and] those whose primary duty is producing the commodity or commodities, whether goods or services, that the enterprise exists to produce and market.” Dalheim v. KDFW-TV, 918 F.2d 1220, 1230 (5th Cir. 1990). Other circuits have thought to label this distinction as the “administrative-production dichotomy, under which production employees (whose job it is to generate the product or service the business offers to the public) will not qualify for the exemption.” Foster v. Nationwide Mut. Ins. Co., 710 F.3d 640, 644 (6th Cir. 2013). Some courts, though, have doubted, saying such a distinction is more in keeping with the “industrial age” and not so much “the modern service-industry context.” Roe-Midgett v. CC Servs., Inc., 512 F.3d 865, 872 (7th Cir. 2008). Indeed, “[t]he line between administrative and production jobs is not a clear one, particularly given that the item being produced ... is often an intangible service rather than a material good.” Davis v. J.P. Morgan Chase & Co., 587 F.3d 529, 532 (2d Cir. 2009).

Applying these concepts if not the analytical labels to our case, the undisputed evidence is that the plaintiffs’ work requires continuous and regular contact with the company men at the drilling location where they are assigned. The plaintiffs provide recommendations, anticipate the customer’s concerns with the drilling mud, then address those concerns on M-I’s behalf. Based on this evidence, the district court found the plaintiffs performed work that “directly related to the general business operations of the employer or the employer’s customers, which was their principal value to M-I and its business of supplying drilling fluid systems engineered to improve, even optimize, drilling performance to the oil industry while reducing costs.”

It is true that Section 541.201(a) provides that the administrative exemption applies to work relating to the' “general business operations” of an employer. What needs to be kept distinct, though, is that the exemption applies when the employee is involved with “administering the business affairs of the enterprise,” not with “producing the commodity” of the business. Dalheim, 918 F.2d at 1230. Supplying the drilling-fluid systems seems more related to producing the commodities than the administering of M-I’s business.

The district court also found that “nearly all of [the plaintiffs’] working time related directly to continually monitoring the mud for quality control, in compliance with 29 C.F.R. § 541.201(b)....” That section of the regulation identifies functional areas that are directly related to management and includes “quality control” in a list that also contains “areas such as tax; finance; accounting; budgeting; auditing; insurance; ... purchasing; procurement;” and others. 29 C.F.R. § 541.201(b). The regulation’s reference to “quality control,” particularly considering the list of which it is a part, seems to mean the quality of the mud being provided to M-I’s customers and not with monitoring and adding materials to the mud as it is being used in drilling wells to ensure that its properties stay within the specifications set forth in the mud plan developed by project engineers.

The district court also determined that the plaintiffs’ work as mud engineers was “directly related to the general business operations” because the plaintiffs “acted as advisors or consultants to M-I’s customers, in compliance with 29 C.F.R. § 541.201(c).” That regulation only sets forth two examples of the types of employees that may be exempt: tax experts and financial consultants. 29 C.F.R. § 541.201(c).

We find an opinion from another Circuit to be instructive on the type of work that an exempt advisor or consultant must perform. See Bratt v. Cnty. of Los Angeles, 912 F.2d 1066, 1070 (9th Cir. 1990). In determining whether probation officers fit within the regulation’s concept of advisor, that court held this to be the test: “whether the aetmties are directly related to management policies or general business operations.” Id. That is, the focus is not on a general concept of advice or consultancy but rather on “policy determinations [for] how a business should be run or run more efficiently....” Id. Through that lens, the probation officers were not clearly “engaged in ‘servicing’ a business within the meaning of’ the regulations. Id.

Further support for this reasoning can be found in a 1997 opinion letter issued by the Wage and Hour Division of the Department of Labor, which is “entitled to respect” to the extent it is persuasive. See Christensen v. Harris Cnty., 529 U.S. 576, 587, 120 S.Ct. 1655, 146 L.Ed.2d 621 (2000). In responding to an inquiry on whether background investigators fit within the FLSA’s administrative exemption, the opinion letter clarified the type of advice an exempt employee provides: the relevant regulation “is directed at advice on matters that involve policy determinations, i.e., how a business should be run or run more efficiently, not merely providing information in the course of the customer’s daily business operation.” U.S. Dep’t of Labor, Wage & Hour Div., Op. Letter (Sept. 12, 1997). Generally, this requires an exempt employee to participate “in important staff functions of the employer or the employer’s clients or customers as opposed to the production functions.” Id.

Finally, one of our unpublished opinions explains in a useful context the type of advisory role an exempt employee must perform. See Zannikos, 605 Fed.Appx. at 350. We held that the plaintiffs’ work as marine superintendents fit within this element of the administrative exemption; the employees argued they did not perform non-manual work directly related to the general business operations of the employer’s customer. Id. at 353. Our analysis required us to be fairly precise about the work:

The plaintiffs’ work, including that relating to line blending, primarily included supervision, quality control, and ensuring compliance with applicable standards. They did not transfer oil, blend oil, or manufacture or sell petroleum products themselves. Instead, they oversaw these functions and provided [the employer’s] customers with inspection and operational support services. Such services are not considered production.

Id.

We also found that the employees’ “primary duties included work in several functional areas explicitly listed as administrative in Section 541.201(b), including quality control, safety, and legal and regulatory compliance.” Id. Having “concluded that the plaintiffs performed non-manual work directly related to the management of [the employer’s] customers,” we deemed it “inconsequential” whether they performed the same task “directly related to the management” of their employer. Id. at 354.

There are significant distinctions between the work performed by these mud engineers and the Zannikos marine superintendents. The latter oversaw the work performed by the customers’ employees, contractors, and equipment. Id. at 351. Mud engineers, on the other hand, neither assured compliance with health and safety standards nor engaged in tasks likely to qualify as the “general administrative work applicable to the running of any business.” See Davis, 587 F.3d at 535. “[W]ork that [i]s primarily functional rather than conceptual” does not meet the standard. See id. We conclude that the district court erred in granting summary judgment on the issue of whether the plaintiffs’ work could be classified as office or non-manual work directly related to the general business operations of M-I’s customers.

II. Discretion and Independent Judgment in Matters of Significance

The final criterion for the administrative exemption requires that an employee’s primary duty “include the exercise of discretion and independent judgment with respect to matters of significance.” 29 C.F.R. § 541.202(a). The phrase “matters of significance” is defined to “refer[] to the level of importance or consequence of the work performed.” Id. Additionally, the regulations require that the “exercise of discretion and independent judgment must be more than the use of skill in applying well-established techniques, procedures or specific standards described in manuals or other sources.” § 541.202(e). Notably, “employees can exercise discretion and independent judgment even if their decisions or recommendations are reviewed at a higher level.” § 541.202(c).

The regulations provide a non-exclusive list of factors relevant to this criterion. Included are “whether the employee has authority to formulate, affect, interpret, or implement management policies or operating practices; ... whether the employee has authority to waive or deviate from established policies and procedures without prior approval; [and] whether the employee has authority to negotiate and bind the company on significant matters!.]” § 541.202(b). The employee’s degree of discretion must be considered “in the light of all the facts involved in the particular employment situation in which the question arises.” Id.

The district court concluded that the matter of significance over which the plaintiffs exercised the requisite discretion and independent judgment was the “quality control of the condition of the mud.... ” The district court determined that Dewan and Casey’s primary duty “involved first determining the condition of the mud in various locations admittedly through a variety of fairly standard tests” and then deciding “which of various additives and treatments of the mud or what tradeoffs would optimize drilling performance .... ” In effect, the court reasoned that the engineers evaluated alternate courses of action and thereby satisfied the need for exercising “discretion and independent judgment,” which the relevant regulation describes as “the comparison and the evaluation of possible courses of conduct, and acting or making a decision after the various possibilities have been considered.” § 541.202(a).

The district court also found that the plaintiffs’ work affected M-I’s operating procedures, which is one of the non-exhaustive factors the regulations identify. The court based its determination on the fact that although plaintiffs “strove to stay within the parameters of the mud plans created by engineers in M-I’s offices, they could deviate from or go outside of those parameters when conditions required them to” do so.

Also relevant is whether the plaintiffs had “authority to make an independent choice, free from immediate direction or supervision.” § 541.202(e). The district court found that even though there were “distinctions between Dewan and Casey’s experiences,” both mud engineers acted with limited supervision and made independent choices. The district court considered that the regulation explicitly “does not require that the decisions made by an employee have a finality that goes with unlimited authority and a complete absence of review.” Recommendations at times can suffice, and occasional review by higher-level employees does not prevent a finding that discretion and independent judgment are being exercised. See § 541.202(c).

The plaintiffs disagree with the defendants’ argument that the plaintiffs “had the requisite discretion and independent judgment so long as they stayed within the parameters outlined in the mud plan.” The plaintiffs rely on a non-binding district court decision that rejected a similar argument involving the work of a manufacturing engineer. See generally Elliott, 2015 WL 7302764. There, the district court determined even though the employee “used his experience and knowledge,” much of the manufacturing engineer’s work was “routine or copy and paste.” Id. at *11.

There is little evidence that the plaintiffs were given “authority to formulate, affect, interpret, or implement management policies or operating practices[.]” 29.C.F.R. § 541.202(b) (factor one). Both Dewan and Casey testified that they lacked such authority. Dewan stated that he “didn’t have the authority to change what was in the mud program.” Instead, he could “make recommendations based on the drilling—the drilling procedures that were going on and all that, and then get approval if they wanted to change it.” Casey agreed with the question that if he believed a change needed to be made in order to stay in compliance with the drilling plan, “you have to raise that to the people above you; right?”

A reasonable jury could credit this testimony and find that the plaintiffs exercised no discretion as mud engineers and merely “appl[ied] well-established techniques, procedures or specific standards described in manuals or other sources.” See id. § 541.202(e). By regulation, there is no exemption if employees “simply apply well-established techniques or procedures described in manuals or other sources within closely prescribed limits.... ” Id. § 541.704. Other Section 541.202(b) factors for which there was no evidence include whether the employees had the authority to commit M-I in matters that have significant financial impact, or negotiate and bind M-I on significant matters, or represent M-I in handling complaints, arbitrating disputes, or resolving grievances.

Moreover, a review of the plaintiffs’ responsibilities suggests thát their work involved little more than “the use of skill in applying well-established techniques, procedures or specific standards described in manuals or other sources,” § 541.202(e), and that they primarily performed “inspector-type duties” consisting of “specialized work along standardized lines involving well-established techniques and procedures[,] which may have been catalogued and described in manuals or other sources,” Clark v. Centene Co. of Texas, L.P., 656 Fed.Appx. 688, 692 (5th Cir. 2016) (unpublished) (quoting § 541.203(g)).

This limited factual record could reasonably be interpreted to provide two different understandings of the scope of the plaintiffs’ discretionary authority and independent judgment. This is evidence that must be weighed by a jury. Notably, a vast majority of this contrary evidence comes from the plaintiffs’ own testimony. “To the extent the testimony of a witness who is also a party may be impaired by party self-interest, it is ordinarily the role of the jury—not the court on summary judgment—to discount it accordingly.” Johnson v. Perez, 823 F.3d 701, 710 (D.C. Cir. 2016). This is such a case.

However close the determination may be, M-I has not established its affirmative defense beyond peradventure. See Smith, 827 F.3d at 420 n.4.

We REVERSE and REMAND for further proceedings consistent with this opinion.

      . “Drilling mud comes in many varieties, ranging from water-based fluid mixed with minerals to oil-based fluid with a composition similar to diesel fuel to synthetic oil-based fluid with a composition similar to food-grade mineral oil." Whiteman v. Chesapeake Appalachia, L.L.C., 729 F.3d 381, 383 n.3 (4th Cir. 2013). The mud system is a crucial part of a drilling operation that performs approximately ten functions.

      . Improperly maintained mud can have severe and costly consequences for the drilling operation. Among the risks are the loss of circulation and stuck pipes, which may cause the drilling operation to stop and require significant repairs.


author: JERRY E. SMITH, Circuit Judge:

text:
    Donna RHEA, Plaintiff-Appellant, v. ALAN RITCHEY, INCORPORATED WELFARE BENEFIT PLAN; Alan Ritchey, Incorporated, Defendants-Appellees.
    No. 16-41032
    United States Court of Appeals, Fifth Circuit.
    FILED May 30, 2017

      Lawrence Ray Lassiter, Miller Weis-brod, L.L.P., Dallas, TX, for Plaintiff-Appellant.
    Laura D. Schmidt, Downs & Stanford, P.C., Dallas, TX, for Defendants-Appel-lees.
    John David Kolb, Gibson Kolb, P.L.C., Louisville, KY, for Amicus Curiae National Association of Subrogation Professionals.
    Before SMITH, PRADO, and GRAVES, Circuit Judges.
   JERRY E. SMITH, Circuit Judge:

Donna Rhea was the beneficiary of an employee benefit plan organized under the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), 29 U.S.C. § 1001 et seq. Rhea suffered injuries from medical malpractice. The plan covered some of her medical expenses. After she settled the malpractice claim, the plan sought reimbursement.

The plan used a single document as both its summary plan description and its written instrument. That document had a reimbursement provision. Rhea refused to reimburse the plan, claiming that it did not have an enforceable written instrument. She sought a declaratory judgment and appeals an adverse summary judgment and attorneys’ fees. Finding no error, we affirm.

I.

Alan Ritchey, Inc. (“Alan Ritchey”), is the sponsor and administrator of an employee benefit program called the “Alan Ritchey, Inc. Welfare Benefit Plan” (“the Plan”), which purports to comply with ERISA. Rhea, the wife of an Alan Ritchey employee, was a beneficiary of the Plan. In November 2011, Rhea underwent surgery and alleged injury from malpractice. The Plan covered $71,644.77 of her medical expenses. After she settled the malpractice claim for more than that amount, the Plan sought reimbursement.

As a beneficiary, Rhea received a document entitled “Summary Plan Description UnitedHealthcare Choice Plus Silver Plan for Alan Ritchey, Inc.” The summary plan description (“SPD”) contains reimbursement and subrogation language. It states that “if a third party causes a Sickness or Injury for which you receive a settlement, judgment, or other recovery, you must use those proceeds to fully return to the Plan 100% of any Benefits you received for that Sickness or Injury.” The SPD adds, “If the Plan incurs attorneys’ fees and costs in order to collect third party settlement funds held by you or your representative, the Plan has the right to recover those fees and costs from you.”

The SPD alludes to the existence of a separate “official Plan Document” and provides that “[i]n the event of any discrepancy between this Summary Plan Description and the official Plan Document, the Plan Document shall govern.” But when the Plan paid Rhea’s medical expenses, the SPD was the only document describing a beneficiary’s rights and obligations under the Plan. When Rhea’s attorneys asked to see the “official Plan Document,” defendants produced an affidavit signed by Charla Moss, Alan Ritchey’s benefits administrator, stating that the SPD “is the Plan document that has been accepted, ratified, and maintained by the Plan Sponsor, that contains all of the ERISA-re-quired plan provisions, and operates as the Plan’s official plan document.”

Rhea has refused to reimburse the Plan for the $71,644.77 it spent on her medical treatment. She claims that Alan Ritchey did not have an ERISA-compliant written instrument in place when the Plan paid her medical expenses. As a result, she says, the Plan does not have a right to be reimbursed. Rhea also accuses Alan Ritchey of making “knowing misrepresentations” about the Plan’s compliance with ERISA. Defendants claim that the Plan was ERISA-compliant at all relevant times and that it established a right to be reimbursed for Rhea’s medical expenses.

In September 2013, Rhea sued Alan Ritchey and the Plan for a declaratory judgment that she is not required to reimburse the Plan. Defendants filed a counterclaim requesting equitable relief and damages under ERISA. Both sides moved for summary judgment. The magistrate judge (“MJ”) recommended granting summary judgment and $31,415.50 in attorneys’ fees and costs to defendants. The district court adopted those recommendations and entered final judgment against Rhea, who appeals.

II.

ERISA requires plan administrators to provide SPDs to beneficiaries. 29 U.S.C. § 1024(b)(1). An SPD must “reasonably apprise [plan] participants and beneficiaries of their rights and obligations under the plan” and must be “written in a manner calculated to be understood by the average plan participant.” Id. § 1022(a). ERISA also mandates that plans “be established and maintained pursuant to a written instrument.” Id. § 1102(a)(1). A plan’s written instrument sets forth its terms and must do the following:

(1) provide a procedure for establishing and carrying out a funding policy and method consistent with the objectives of the plan and the requirements of this subchapter,
(2) describe any procedure under the plan for the allocation of responsibilities for the operation and administration of the plan (including any procedure described in section 1105(c)(1) of this title),
(3) provide a procedure for amending such plan, and for identifying the persons who have authority to amend the plan, and
(4) specify the basis on which payments are made to and from the plan.

Id. § 1102(b). Courts often refer to written instruments as “plan documents.”

A.

When the Plan paid Rhea’s medical expenses, its SPD was functioning as both an SPD and a written instrument. That is nothing peculiar: Plan sponsors commonly use a single document to satisfy both requirements, and courts have blessed the practice. For example, we have treated an SPD as a plan’s written instrument because there was “no alternative plan document in the record.”

Rhea claims that CIGNA Corp. v. Amara, 563 U.S. 421, 437-38, 131 S.Ct. 1866, 179 L.Ed.2d 843 (2011), requires a plan’s SPD and written instrument to be separate documents. But courts have consistently rejected that reading of Amara. To the contrary, where a plan has an SPD but no separate written instrument, the SPD can serve as the plan’s written instrument.

Amara arose from a dispute between CIGNA and its pension plan’s beneficiaries. Until 1997, CIGNA had a traditional defined-benefit pension plan. It issued an SPD announcing changes while assuring beneficiaries that the new plan would provide “the same benefit security” with “steadier benefit growth.” Id. at 426-28, 131 S.Ct. 1866. Eleven months later, CIG-NA rolled out its new written instrument, which reduced benefits considerably. Id. at 426-31, 131 S.Ct. 1866. The beneficiaries challenged CIGNA’s adoption of the new plan. Id. at 424, 131 S.Ct. 1866.

The United States submitted a brief as amicus curiae urging that the (more favorable) terms of the SPD should govern rather than the (less favorable) terms of the written instrument: The Court rejected the premise that SPDs are inherently enforceable: “[W]e cannot agree that the terms of statutorily required plan summaries ... necessarily may be enforced ... as the terms of the plan itself.” Id. at 436, 131 5.Ct. 1866 (emphasis added). The Court added that a plan’s written instrument contains its terms. Id. at 436-38, 131 S.Ct. 1866.

The present case is factually distinguishable from Amara. We are not grappling with a conflict between an SPD and a written instrument but, instead, are deciding whether an SPD can function as a written instrument in the absence of a separate written instrument. As the district court correctly concluded, Amara does not bear on these facts.

B.

Rhea claims that the SPD does not comply with § 1102(b) because it does not go into enough depth about how the Plan is funded or how it can be amended. Here, too, we disagree.

The SPD devotes a few paragraphs to discussing the Plan’s amendment procedures. It explains that the Plan’s sponsor reserves the right to amend the Plan without notice, but any amendment must be in writing. The SPD also provides that “[a]ny provision of the Plan which, on its effective date, is in conflict with the requirements of federal statutes or regulations, or applicable state law provisions not otherwise preempted by ERISA ... is hereby amended to conform to the minimum requirements of such statutes and regulations.” Rhea describes the SPD’s amendment language as “merely a grant of authority to Alan Ritchey, Inc. to makes [sic] changes as it chooses without following any procedures whatsoever.”

The SPD includes a brief discussion of the Plan’s funding. An addendum to the SPD provides that “[a]ll Benefits under the Plan are paid from the general assets of the Plan Sponsor. Any required employee contributions are used to partially reimburse the Plan Sponsor for Benefits under the Plan.” The same section includes a short description of how employee contributions are calculated. Elsewhere, the SPD instructs Plan participants to contact their benefits representatives for more information about contributions. The SPD does not mention its source of funding: the Alan Ritchey, Inc. Employee Benefit Plan Trust (though it does name “Alan Ritchey, Inc.” as the plan sponsor).

Rhea is right that the SPD does not lay out complex amendment or funding procedures. But ERISA does not require written instruments to set forth complex procedures. In fact, the Supreme Court has approved of an amendment procedure less detailed than the one in this case. See Curtiss-Wright Corp. v. Schoonejongen, 514 U.S. 73, 79-80, 115 S.Ct. 1223, 131 L.Ed.2d 94 (1995). Given that precedent, it is unlikely that the Court would find the amendment procedure here to be lacking. Likewise, the SPD’s discussion of the Plan’s funding is sufficient to satisfy ERISA’s requirements.

C.

Rhea claims that the SPD was never adopted as the Plan’s written instrument. But when an SPD is a plan’s only plausible written instrument, courts assume that the SPD is the written instrument. In Feifer v. Prudential Ins. Co. of America, 306 F.3d 1202, 1208-10 (2d Cir. 2002), the court concluded that an SPD’s terms were controlling even though the plan administrator had argued otherwise. The two California district court cases that Rhea cites for support are factually distinguishable from the instant case: Both concerned SPDs that conflicted with other plan documents. There is no evidence in the record that Alan Ritchey adopted a document besides the SPD as the Plan’s written instrument during the relevant time period.

D.

The Plan’s SPD references an “official Plan Document” that does not exist. Defendants did not inform Rhea that they considered the SPD to be the official plan document until her lawyers asked to see the plan document. Rhea claims that defendants “lied” to her and therefore should not be able to enforce the SPD as the plan document. For support, Rhea cites cases holding that plan administrators breached their duty of loyalty to beneficiaries when they lied or misrepresented material facts.

Though we have never addressed this issue, at least one other circuit has held that an SPD that defers to a non-existent plan document can be enforced as the plan’s governing text. In Feifer, 306 F.3d at 1209, the Second Circuit held that an SPD that stated that it was “not intended to cover all details of the Plan” and that the “actual provisions of the Plan will govern” still qualified as the plan document in the absence of a separate written instrument. Rhea has not presented evidence that defendants made intentional misrepresentations and has not cited any caselaw suggesting that an ERISA plan administrator breaches its duty of loyalty when it includes such an errant disclaimer somewhere in a plan document. Most importantly, and fatal to her position, Rhea has not demonstrated how this misrepresentation is material or detrimental to her interest. As the MJ observed, including the disclaimer in the SPD was “sloppy,” but the disclaimer does not render the Plan’s terms unenforceable.

We agree with the MJ’s conclusion that the equities favor the defendants. Rhea had a pre-existing obligation to reimburse the Plan for payments it made for her medical expenses in the event she received a third-party recovery. The SPD’s errant disclaimer does not tip the balance of the equities in her favor. When Rhea settled her malpractice claim, an equitable lien by agreement was created. Defendants are entitled to reimbursement.

HI.

The district court adopted the MJ’s recommendation to award $29,412 in attorneys’ fees and $2,003.50 in court costs to defendants. The MJ found that the fee award was appropriate under 29 U.S.C. § 1132(g)(1), which gives discretion to award reasonable attorneys’ fees and court costs in ERISA cases. This court reviews an ERISA fee award for abuse of discretion. There is no abuse here.

To determine whether to award fees under § 1132(g)(1), we weigh the factors in Iron Workers Local No. 272 v. Bowen, 624 F.2d 1255 (5th Cir. 1980). Those factors are as follows:

(1) the degree of the opposing parties’ culpability or bad faith; (2) the ability of the opposing parties to satisfy an award of attorneys’ fees; (3) whether an award of attorneys’ fees against the opposing parties would deter other persons acting under similar circumstances; (4) whether the parties requesting attorneys’ fees sought to benefit all participants and beneficiaries of an ERISA plan or to resolve a significant legal question regarding ERISA itself; and (5) the relative merits of the parties’ positions.

Id. at 1266 (footnote omitted).

In his report on attorneys’ fees and court costs, the MJ considered each of these factors, including, most significantly, that Rhea was at least arguably acting in bad faith when she moved to deny the Plan a recovery to which it is contractually entitled. As the MJ explained, the other factors generally favor a fee award to these defendants.

AFFIRMED.

      . Alan Ritchey later produced a document called the "Alan Ritchey Employee Benefit Plan.”

      . See Lee T. Polk, Summary Plan Descriptions, 2 ERISA Prac. & Litig. § 12:38.

      . See, e.g., Bd. of Trs. of Nat’l Elevator Indus. Health Benefit Plan v. Montanile, 593 Fed. Appx. 903, 911 (11th Cir. 2014) ("We hold that the NEI Summary Plan Description constitutes a written instrument that sets out enforceable 'terms of the plan.’- ”), rev’d on other grounds, - U.S. -, 136 S.Ct. 651, 193 L.Ed.2d 556 (2016); Eugene S. v. Horizon Blue Cross Blue Shield of N.J., 663 F.3d 1124, 1131 (10th Cir. 2011) ("[T]he SPD does not conflict with the Plan or present terms unsupported by the Plan; rather, it is the Plan.”); Wise v. Plan Adm’r, IBM Benefits Plan for Retired Emps., No. 3:13CV1591 JBA, 2014 WL 3849975, at *4 (D. Conn. Aug. 5, 2014) (explaining that when there is no separate written instrument, "the SPD can legally serve as the formal governing plan document”); Henderson v. Hartford Life & Accident Ins., No. 2:11CV187DAK, 2012 WL 2419961, at *5 (D. Utah June 26, 2012) ("[T]he terms of the SPD govern because there are no other ma[s]ter plan documents.”); Campbell v. Chevron Phillips Chem. Co., 587 F.Supp.2d 773, 782 (E.D. Tex. 2006) ("[O]ne document can serve as both the ‘summary plan description' required under 29 U.S.C. § 1022(b) and the 'written instrument’ required under 29 U.S.C. § 1102(a)(1).” (quoting Hamilton v. Air lamaica, Ltd., 750 F.Supp. 1259, 1265 (E.D. Pa. 1990)), rev’d on other grounds, 945 F.2d 74 (3d Cir. 1991)).

      . Dudley v. Sedgwick Claims Mgmt. Servs. Inc., 495 Fed.Appx. 470, 471 n.1 (5th Cir. 2012).

      . See, e.g., Bd. of Trs. v. Moore, 800 F.3d 214, 220 (6th Cir. 2015) ("Nothing in Amara prevents a document from functioning both as the ERISA plan and as an SPD...."); Montanile, 593 Fed.Appx. at 910 (“Amara only precludes courts from enforcing summary plan descriptions ... where the terms of that summary conflict with the terms specified in other, governing plan documents.”); Eugene S., 663 F.3d at 1131 (stating that an SPD can function as a plan’s written instrument when there is no alternative written instrument, notwithstanding Amara); JDA Software Inc. v. Berumen, No. CV-14-01565-PHX-DLR, 2016 WL 6143188, at *3 (D. Ariz. Oct. 21, 2016) (“Amara ... did not involve a consolidated plan document, and courts that have addressed consolidated plans consistently have foupd that an SPD can serve as the governing plan document if it is the only document detailing the participants’ rights and obligations and contains all necessary information.”); Jenkins v. Grant Thornton LLP, No. 0:13-CV-60957, 2015 WL 349275, at *1 (S.D. Fla. Jan. 23, 2015) (citation omitted) ("A plethora of authority exists for the proposition that (i) the holding in Amara was specifically targeted towards situations where a summary plan document conflicts with a master plan document and (ii) Amara does not address situations where a summary document is the only plan document.”), aff'd, 667 Fed.Appx. 754 (11th Cir. 2016) (per curiam), cert. denied, - U.S. -, 137 S.Ct. 1070, 197 L.Ed.2d 178 (2017); L&W Assocs. Welfare Benefit Plan v. Estate of Wines ex rel. Wines, No. 12-CV-13524, 2014 WL 117349, at *6 (E.D. Mich. Jan. 13, 2014) (“Amara does not support the broad proposition urged by the Estate, i.e. that an SPD can never serve as an ERISA plan document.”). One Florida district court seemed to endorse Rhea’s reading of Amara:

      Although the Eleventh Circuit has previously found that a summary plan description is part of the plan and sufficient to confer discretion on an administrator ... such decisions have been called into question by the Supreme Court’s recent holding that a summary plan description is not the plan, and courts may not give legal effect to provisions in an [sic] summary plan description.

        Wilson v. Walgreen Income Prot. Plan, 942 F.Supp.2d 1213, 1248 n.26 (M.D. Fla. 2013). But the following year, the Eleventh Circuit construed Amara much more narrowly. See Montanile, 593 Fed.Appx. at 910.

      . The Court noted the narrowness of its holding, explaining that "our decision rests in important part upon the circumstances present here.” Amara, 563 U.S. at 425, 131 S.Ct. 1866. The language of ERISA and the decision in Amara do suggest that it is best to maintain a written instrument, establishing a benefit plan's terms, that is separate and distinct from the SPD. In Amara the Court emphasized that SPDs serve a basic objective: "clear, simple communication.” Id. at 437, 131 S.Ct. 1866. "To make the language of a plan summary legally binding could lead plan administrators to sacrifice simplicity and comprehensibility in order to describe plan terms in the language of lawyers.” Id. at 438, 131 S.Ct. 1866. Nevertheless, when a plan's sponsor does not maintain a separate written instrument, we must look to the SPD to define the plan's terms.

      . See, e.g., Admin. Comm. of Wal-Mart Stores, Inc. Assocs. Health & Welfare Plan v. Gamboa, 479 F.3d 538, 544 (8th Cir. 2007) ("Where no other source of benefits exists, the summary plan description is the formal plan document, regardless of its label.” (citation omitted)).

      . See Mull v. Motion Picture Indus. Health Plan, 51 F.Supp.3d 910 (C.D. Cal. 2014); Ingorvaia v. Reliastar Life Ins., 944 F.Supp.2d 964 (S.D. Cal. 2013).

        .See, e.g., Varity Corp. v. Howe, 516 U.S. 489, 506, 116 S.Ct. 1065, 134 L.Ed.2d 130 (1996) (citation omitted) ("[L]ying is inconsistent with the duty of loyalty owed by all fiduciaries and codified in section 404(a)(1) of ERISA.”); Martinez v. Schlumberger, Ltd., 338 F.3d 407, 424-25 (5th Cir. 2003) (noting that employers have "a fiduciary duty to refrain from misrepresentations” regarding “the future of a participant’s plan benefits”).

      . See also Gamboa, 479 F.3d at 544-45 (stating that á document can serve as a plan's written instrument even if it is mislabeled).

      . See ACS Recovery Servs., Inc. v. Griffin, 723 F.3d 518, 527-28 (5th Cir. 2013) (en banc).

      . See Dial v. NFL Player Supplemental Disability Plan, 174 F.3d 606, 613 (5th Cir. 1999).

        .See, e.g., 1 Lincoln Fin. Co. v. Metro. Life Ins., 428 Fed.Appx. 394, 395 (5th Cir. 2011) (per curiam) ("Once a district court determines that a party is eligible for a fee award under § 1132(g)(1), a district court may consider whether fees are appropriate under the factors outlined in \Iron Workers].”).f

      . The MJ also cited the SPD’s contractual attorneys' fees provision as a justification for fees. Because the district court did not abuse its discretion by awarding fees under § 1132(g)(1), we do not address the validity of the contractual provision.