author: AGEE, Circuit Judge:

text:
    Marcus Reymond ROBINSON, Petitioner-Appellant, v. Edward THOMAS, Warden of Central Prison, Raleigh, North Carolina, Respondent-Appellee. Tilmon C. Golphin, Petitioner-Appellant, v. Edward Thomas, Warden of Central Prison, Raleigh, North Carolina, Respondent-Appellee.
    No. 16-11, No. 16-12
    United States Court of Appeals, Fourth Circuit.
    Argued: January 25, 2017
    Decided: April 27, 2017

      ARGUED: David Weiss, CENTER FOR DEATH PENALTY LITIGATION, Durham, North Carolina, for Appellants. Danielle Marquis Elder, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellee. ON BRIEF: Donald H. Beskind, DUKE UNIVERSITY SCHOOL OF LAW, Durham, North Carolina, for Appellant Marcus Reymond Robinson. Kenneth J. Rose, CENTER FOR DEATH PENALTY LITIGATION, Durham, North Carolina; Jay H. Ferguson, THOMAS, FERGUSON & MULLINS, LLP, Durham, North Carolina, for Appellant Tilmon C. Golphin. Roy Cooper, Attorney General of North Carolina, Jonathan P. Babb, Special Deputy Attorney General, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellee.
    Before KING, AGEE, and FLOYD, Circuit Judges.
   AGEE, Circuit Judge:

After being sentenced to death upon first-degree murder convictions, Marcus Robinson and Tilmon Golphin (collectively, “Petitioners”) sought post-conviction relief in state court pursuant to North Carolina’s Racial Justice Act (“RJA”), N.C. Gen. Stat. §§ 15A-2010 to 2012 (2009) (repealed 2018). Following separate evidentiary hearings, the North Carolina trial court awarded relief under the RJA, reducing their death sentences to life imprisonment. The State of North Carolina (“the State”) appealed, and the North Carolina Supreme Court vacated and remanded their cases to the state trial court for additional RJA proceedings. Petitioners then brought separate actions in federal district court pursuant to 28 U.S.C. § 2241, each maintaining that a second RJA proceeding would violate their rights under the Double Jeopardy Clause of the Fifth Amendment. The district court abstained from exercising federal jurisdiction pursuant to Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), under the precept that a federal court “should not act to restrain a [state] criminal prosecution, when the moving party has an adequate remedy at law and will not suffer irreparable injury if denied equitable relief.” Id. at 43-44, 91 S.Ct. 746. As an alternate basis for its judgment, the district court held that Petitioners had also failed to exhaust their state remedies. For the reasons that follow, we affirm the district court’s decision to abstain from intervening in Petitioners’ ongoing state court proceedings under Younger.

I.

A.

Enacted in August 2009, the RJA redefined eligibility for the death penalty in North Carolina, providing that no person whose judgment was sought or obtained on the basis of race could be sentenced to death, and establishing a procedure for previously sentenced capital defendants to challenge their death sentences. N.C. Gen. Stat. § 15A-2010 (2009). For such post-conviction challenges, the RJA authorized state trial courts to hold evidentiary hearings and to make factual findings as to whether race was a significant factor in leading to a death sentence. Id. § 15A-2012(a). For defendants who established entitlement to post-conviction relief under the RJA, the statute mandated “that the death sentence imposed by the judgment shall be vacated and the defendant resen-tenced to life imprisonment without the possibility of parole.” Id. § 15A-2012(a)(3).

On July 2, 2012, the North Carolina General Assembly enacted amendments to the RJA, but preserved its retroactive application to all death row inmates, as well as the provision that a successful claim would result in vacatur of the death sentence and imposition of a sentence of life imprisonment with no mechanism for appeal of that sentence. See 2012 N.C. Sess. Laws 471, § 3(g).

The next year, the North Carolina General Assembly repealed the RJA effective June 19, 2013. See 2013 N.C. Sess. Laws 368, § 5(a). The repeal statute provided that it applied to all pending RJA motions filed prior to the effective date of the repeal, and that all such motions were void. Id. § 5(d). In addition, the repeal statute also provided that it applied to litigants who obtained relief under the RJA, but whose relief could be vacated on appeal:

This section does not apply to a court order resentencing a petitioner to life imprisonment without parole pursuant to the provisions of Article 101 of Chapter 15A of the General Statutes prior to the effective date of this act if the order is affirmed upon appellate review and becomes a final Order issued by a court of competent jurisdiction. This section is applicable in any case where a court resentenced a petitioner to life imprisonment without parole pursuant to the provisions of Article 101 of Chapter 15A of the General Statutes prior to the effective date of this act, and the Order is vacated upon appellate review by a court of competent jurisdiction.

Id. (emphasis added).

B.

The state court proceedings for each petitioner are ongoing and present a complex web of procedural history. We include such detail here as necessary to lend context to our decision.

1.

In 1994, Robinson was convicted after a jury trial of first-degree murder for the killing of Erik Tornblom, a 17-year-old rising senior in high school. Robinson and an accomplice shot Tornblom in the face with a shotgun and then stole his car and $27. The jury found two aggravating circumstances existed that were sufficient to impose the death penalty and recommended the death sentence. The trial court imposed that sentence on August 4, 1994. Robinson appealed both his conviction and sentence, but those appeals were unsuccessful. See generally State v. Robinson, 342 N.C. 74, 463 S.E.2d 218 (1995).

Robinson’s requests for state, see generally State v. Robinson, 350 N.C. 847, 539 S.E.2d 646 (1999) (denying certiorari review of state trial court’s denial of post-conviction motion for appropriate relief), and federal, see generally Robinson v. Polk, 438 F.3d 350 (4th Cir. 2006) (affirming the district court’s denial of a petition for the writ of habeas corpus), post-conviction relief also failed.

In 2010, Robinson sought post-conviction relief under the RJA in the state trial court. Robinson’s motion alleged that race was a factor in the prosecutor’s decision to seek the death penalty and the exercise of peremptory strikes, as well as the jury’s decision to impose the death penalty. After a two-week evidentiary hearing, the state trial court found that racial disparities impacted Robinson’s death sentence and determined that the RJA standards were satisfied so that Robinson was ineligible for the death penalty and entitled to a sentence of life imprisonment. The state trial court entered a judgment vacating the death sentence and resentencing Robinson to life imprisonment without parole.

2.

Golphin’s case history tracks a similar course. He was convicted of two counts of first-degree murder for killing North Carolina State Highway Patrol Trooper Lloyd E. Lowry and Cumberland County Deputy Sherriff David Hathcock and sentenced to death for each murder. See generally State v. Golphin, 352 N.C. 364, 533 S.E.2d 168 (2000). The conviction and sentences were affirmed on direct appeal. Id.

Golphin unsuccessfully pursued state, see generally State v. Golphin, 358 N.C. 157, 593 S.E.2d 84 (2004) (denying certio-rari review of the denial of a state post-conviction motion for appropriate relief), and federal, see generally Golphin v. Branker, 519 F.3d 168 (4th Cir. 2008) (affirming the district court’s denial of a petition for the writ of habeas corpus), post-conviction review.

In 2010, Golphin also filed a state motion for post-conviction relief pursuant to the RJA. Similar to Robinson, Golphin alleged race was a significant factor in the decisions to seek and impose the death penalty. The state trial court held an evidentia-ry hearing and concluded that statistical disparities and intentional discrimination affected Golphin’s trial and capital sentencing. That court then vacated Golphin’s death sentence based upon both the original RJA and amended 2012 version and re-sentenced Golphin to life imprisonment without parole.

C.

The State petitioned the North Carolina Supreme Court for review of the orders granting relief under the RJA for Robinson and Golphin in separate appeals, which Petitioners opposed. In his preliminary response brief to the State’s request for a grant of certiorari, Robinson failed to raise any double jeopardy argument. Golphin, however, asserted further proceedings in the state trial court would violate his rights under the Double Jeopardy Clause in his preliminary brief opposing certiora-ri.

The North Carolina Supreme Court granted the State’s petitions, and briefing on the merits ensued. Both Petitioners proffered Double Jeopardy Clause arguments in their merits briefing.

In December 2015, the North Carolina Supreme Court vacated the trial court’s RJA orders in both cases and remanded for further proceedings, but did not explicitly address Petitioners’ double jeopardy arguments. State v. Augustine, 368 N.C. 594, 780 S.E.2d 552 (2015) (mem.); State v. Robinson, 368 N.C. 596, 780 S.E.2d 151, 151-52 (2015). Both Robinson and Golphin filed motions for clarification of the Supreme Court’s decision, reasserting their double jeopardy arguments, but those motions were denied without explanation. State v. Robinson, 368 N.C. 688, 782 S.E.2d 324 (2016) (mem.); State v. Augustine, 368 N.C. 681, 782 S.E.2d 323 (2016) (mem.).

The mandates of the North Carolina Supreme Court for further RJA proceedings issued to the trial court in January 2016.

D.

In February 2016, Robinson and Golphin separately petitioned for writs of habeas corpus under 28 U.S.C. § 2241 in the United States District Court for the Eastern District of North Carolina, seeking relief from a second RJA proceeding based on the Double Jeopardy Clause. They also moved the district court to stay further proceedings in state court.

The district court denied Petitioners’ requests to enjoin further state court proceedings and dismissed the petitions without prejudice. In separate opinions that mirror one another, the district courts abstained from exercising federal jurisdiction pursuant to Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), and, alternatively, held that Petitioners had failed to exhaust their double jeopardy claims in state court. Golphin v. Joyner, No. 5:16-HC-2029-BO, slip op., at *8-11 (E.D.N.C. June 6, 2016); Robinson v. Joyner, No. 5:16-HC-2028-D, slip op., at *8-11 (E.D.N.C. June 4, 2016).

Petitioners timely filed separate notices of appeal, and we consolidated their cases for purposes of this appeal. As noted, at the time their federal appeals were filed, Petitioners’ RJA motions were pending on remand in the state trial court. Since we held oral argument on January 25, 2017, the state trial court ruled on Petitioners’ pending RJA-based motions. That court concluded on North Carolina statutory grounds that the RJA repeal bill applies to Petitioners and, although they raised double jeopardy objections, the state court did not address those arguments. As a result, Petitioners’ state court proceedings are ongoing through the appeals process in North Carolina. We have jurisdiction to entertain this appeal from the district court’s dismissal order under 28 U.S.C. §§ 1291,2253.

II.

State prisoners, like Golphin and Robinson, must exhaust their state remedies before filing a habeas petition in federal court. Timms v. Johns, 627 F.3d 525, 530-31 (4th Cir. 2010) (“As a general rule, in the absence of exceptional circumstances where the need for the remedy afforded by the writ of habeas corpus is apparent, courts require exhaustion of alternative remedies before a prisoner can seek federal habeas relief.” (internal alterations, citations, and quotation marks omitted)). The purpose of the exhaustion requirement is to “giv[e] the State the opportunity to pass upon and correct alleged violations of its prisoners’ federal rights.” Jones v. Sussex I State Prison, 591 F.3d 707, 712 (4th Cir. 2010). The State contends Petitioners did not exhaust their state remedies before filing their petitions in federal court.

A habeas petitioner satisfies the exhaustion requirement by “ ‘fairly presenting]’ his claim in each appropriate state court ... thereby alerting that court to the federal nature of the claim.” Baldwin v. Reese, 541 U.S. 27, 29, 124 S.Ct. 1347, 158 L.Ed.2d 64 (2004) (quoting Dun can v. Henry, 513 U.S. 364, 365-66, 115 S.Ct. 887, 130 L.Ed.2d 865 (1995)). A petitioner must show that “both the operative facts and the controlling legal principles [were] presented to the state court.” Jones, 591 F.3d at 713 (quoting Baker v. Corcoran, 220 F.3d 276, 289 (4th Cir. 2000)). That burden has been met by Petitioners in this case.

Petitioners filed separate RJA motions in state court. Upon the favorable-ruling by the state trial court in both cases, the State sought certiorari review in the North Carolina Supreme Court. Gol-phin raised a double jeopardy argument in his brief opposing certiorari and again in his merits brief. Unlike Golphin, Robinson did not raise the double jeopardy claim in response to the state certiorari petition, but he did raise it in his brief on the merits. North Carolina does not require a party to raise arguments in response to a petition for a writ of certiorari in order to preserve those arguments for merits briefing should certiorari be granted. See N.C. R. App. P. 21. Both Petitioners’ pleadings were thus adequate to exhaust available state court remedies before seeking habe-as relief in federal court, and the State points to no authority to the contrary. See Jenkins v. Fitzberger, 440 F.2d 1188, 1189 (4th Cir. 1971) (“[T]he exhaustion requirement of 28 U.S.C. § 2254 is not a jurisdictional concept but simply a flexible matter of comity[.]” (internal quotation marks omitted)).

The State nonetheless urges that Petitioners’ double jeopardy claims are not exhausted because they “did not become ripe until after the Supreme Court of North Carolina entered its [remand] order[.]” Response Br. 20. Not so. The double jeopardy argument became ripe upon the State’s appeal of the trial court’s grant of Petitioners’ RJA motions. See Smalis v. Pennsylvania, 476 U.S. 140, 142, 106 S.Ct. 1745, 90 L.Ed.2d 116 (1986) (“[W]hen a trial court enters such a judgment [of acquittal], the Double Jeopardy Clause bars an appeal by the prosecution[.]”); see also N.C. Gen. Stat. § 15A-1445(a) (permitting adjudication of a double jeopardy claim as a threshold matter on appeal).

For these reasons, the State’s argument that Petitioners failed to exhaust their state remedies before seeking habeas relief in federal court lacks merit.

III.

A.

The principal issue on appeal is whether the district court appropriately abstained under Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), from exercising jurisdiction, thus declining to reach Petitioners’ claims under the Double Jeopardy Clause. We review for abuse of discretion a district court’s decision to abstain. Nivens v. Gilchrist (Nivens I), 319 F.3d 151, 152 (4th Cir. 2003).

The Supreme Court in Younger articulated the “national policy forbidding federal courts to stay or enjoin pending state court proceedings except under special circumstances.” 401 U.S. at 41, 91 S.Ct. 746; accord Kugler v. Helfant, 421 U.S. 117, 123, 95 S.Ct. 1524, 44 L.Ed.2d 15 (1975) (“[I]n the absence of exceptional circumstances creating a threat of irreparable injury both great and immediate, a federal court must not intervene by way of either injunction or declaratory judgment in a pending state criminal prosecution.” (internal quotation marks omitted)). The Younger doctrine rests on the fundamental precepts of equity and comity. “[C]ourts of equity should not act, and particularly should not act to restrain a criminal prosecution, when the moving party has an adequate remedy at law and will not suffer irreparable injury if denied equitable relief.” Younger, 401 U.S. at 43-44, 91 S.Ct. 746. The comity notion relates to “a proper respect for state functions, a recognition of the fact that the entire country is made up of a Union of separate state governments, and a continuance of the belief that the National Government will fare best if the States and their institutions are left free to perform their separate functions in their separate ways.” Id. at 44, 91 S.Ct. 746.

The Supreme Court explained in Middlesex City Ethics Committee v. Garden State Bar Ass’n, 457 U.S. 423, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982), that even if a federal court could exercise jurisdiction, it should refrain from doing so if (1) there is an ongoing state judicial proceeding that began prior to substantial progress in the federal proceeding, (2) that proceeding implicates important, substantial, or vital state interests, and (3) there is an adequate opportunity to raise constitutional challenges within the framework of the state judicial process. Id. at 432, 102 S.Ct. 2515; Nivens I, 319 F.3d at 153.

All of the factors articulated in Middlesex are present in this case. As to the first Middlesex factor, Petitioners brought their petitions in federal court in an attempt to stop ongoing state proceedings with respect to their RJA motions. In relation to the second factor, construction of the RJA and subsequent repeal statute, which may apply to Petitioners, lies at the heart of this case. Undoubtedly, North Carolina has an important, substantial, and vital interest in interpreting its criminal laws, and that interest is strengthened here where those laws present a complex web of legislative amendments and history. See Younger, 401 U.S. at 43-44, 91 S.Ct. 746. Third, there are ongoing state proceedings in which Petitioners have an adequate opportunity to present their argument that a second RJA hearing would violate their double jeopardy rights. Although they argue the state courts are not their preferred venue, “[m]inimal respect for the state processes, of course, precludes any presumption that the state courts will not safeguard federal constitutional rights.” Middlesex, 457 U.S. at 431, 102 S.Ct. 2515. Because the basic requirements for Younger abstention are present in this case, the district court did not abuse its discretion in abstaining unless Petitioners’ claims fall within an exception to the “fundamental policy” that federal courts should abstain from interfering in state criminal proceedings. Younger, 401 U.S. at 45-46, 91 S.Ct. 746.

B.

A federal court may disregard Younger*s mandate to abstain from interfering with ongoing state proceedings only where “extraordinary circumstances” exist that present the possibility of irreparable harm. Kugler, 421 U.S. at 124, 95 S.Ct. 1524; Nivens v. Gilchrist (Nivens II), 444 F.3d 237, 241 (4th Cir. 2006). The Supreme Court in Younger explained this limited deviation from the “fundamental policy” of federal abstention:

[W]hen absolutely necessary for protection of constitutional rights, courts of the United States have power to enjoin state officers from instituting criminal actions. But this may not be done, except under extraordinary circumstances, where the danger of irreparable loss is both great and immediate. Ordinarily, there should be no interference with such officers; primarily, they are charged with the duty of prosecuting offenders against the laws of the state, and must decide when and how this is to be done. The accused should first set up and rely upon his defense in the state courts, even though this involves a challenge of the validity of some statute, unless it plainly appears that this course would not afford adequate protection.

401 U.S. at 45, 91 S.Ct. 746.

Federal intervention may be proper where there is a showing of “bad faith or harassment by state officials,” or where the state law to be applied in the criminal proceeding is “flagrantly and patently vio-lative of express constitutional prohibitions.” Nivens II, 444 F.3d at 241 (citing Kugler, 421 U.S. at 124, 95 S.Ct. 1524). Petitioners do not allege — and the record does not remotely suggest — that the State engaged in bad faith or harassment. Nor do Petitioners allege that the relevant North Carolina statutes are “patently vio-lative” of federal constitutional provisions. Rather, Petitioners initiated the proceedings in state court in the first place seeking to avail themselves of the RJA remedy. And Petitioners concede that they have raised the double jeopardy argument in state court where proceedings are ongoing. Petitioners, therefore, must point to some other extraordinary circumstance “demonstrating that they do not have an adequate remedy at law and the danger of irreparable injury if they are denied equitable relief is both great and immediate.” Nivens I, 319 F.3d at 155. For the reasons detailed below, Petitioners fail to make that showing.

C.

1.

Petitioners contend that Younger abstention here is inappropriate under the rationale stated in Gilliam v. Foster, 75 F.3d 881 (4th Cir. 1996) (en banc). “[T]his Court and the other courts of appeals ‘have unanimously recognized that a color-able claim that a second trial will violate a defendant’s double jeopardy right is a preeminent example of one of the very few extraordinary circumstances justifying federal court intervention in a pending state criminal proceeding,’ ” according to Petitioners. Opening Br. 26 (quoting Gilliam, 75 F.3d at 904). Stated differently, Petitioners posit that under Gilliam an allegation of “a colorable claim” that a double jeopardy violation may occur constitutes an exceptional circumstance that justifies federal court intervention, and no separate showing is necessary. Petitioners are not the first to propose a broad reading of Gilliam, and this Court has previously rejected an “overly expansive interpretation of that case.” Nivens I, 319 F.3d at 159.

The issue on appeal in Gilliam was “whether the state trial judge exercised sound discretion in granting the prosecution’s motion for a mistrial because the jury viewed certain photographs prior to their formal admission into evidence.” 75 F.3d at 885. We held that the petitioners demonstrated they faced a substantial likelihood of an irreparable double jeopardy violation, which qualified as an extraordinary circumstance under Younger. Id. at 893-95. Our decision not to abstain in that case was rooted in the concerns expressed in Younger, that a “portion of the constitutional protection [the Double Jeopardy Clause] affords would be irreparably lost if Petitioners were forced to endure the second trial before seeking to vindicate their constitutional rights at the federal level[.]” Id. at 904; accord Abney v. United States, 431 U.S. 651, 660, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977) (observing the constitutional protection afforded by the Double Jeopardy Clause “would be significantly undermined if appellate review of double jeopardy claims were postponed until after conviction and sentence”).

In Nivens I, we clarified the scope of our decision in Gilliam. Nivens I concerned whether a district court properly abstained under Younger from intervening in a pending state criminal drug prosecution that began after the appellants had paid North Carolina’s drug tax. Nivens I, 319 F.3d at 152. The appellants argued that the Double Jeopardy Clause barred the later criminal prosecution because the drug tax was a criminal penalty that had been satisfied; in effect, they alleged they were being twice punished for the same offense. Id. at 152-53. Relying on Gilliam, the appellants argued that abstention was improper because “a colorable claim of a double jeopardy violation [was] sufficient to establish exceptional circumstances warranting federal court intervention without any separate showing.” Id. at 159 (internal quotation marks omitted). We rejected that reading of Gilliam, explaining “[w]e did not hold that an allegation of a double jeopardy violation automatically precludes Younger abstention.” Id.

Critically, the Nivens appellants had access to avenues for relief in their ongoing criminal prosecutions and state procedures that would allow them to raise their double jeopardy argument before any trial on the merits. We were specific in holding Younger abstention was appropriate because “[u]nlike the defendants in [Gilliam], Appellants yet have access to pretrial avenues in their current criminal prosecutions whereby they may raise their constitutional contentions before any double jeopardy injury could inure.” Id. As directly relevant to the arguments Petitioners raise now, we further held that:

Because jeopardy does not attach during pretrial procedures and motions, and Appellants have state procedures whereby they may foreclose a violation of their double jeopardy rights, any double jeopardy harm at this stage of Appellants’ litigation is neither immediate nor irreparable. Appellants must raise their contentions in their current prosecution and appeal any undesirable decision before a federal district court asserts jurisdiction.

Id. at 159-60 (internal citations omitted). As a consequence, “[b]ecause Appellants have not made a showing of an immediate and irreparable constitutional injury absent federal court intervention, [Gilliam] does not permit us to disregard Younger.” Id. at 160. We held, accordingly, that the district court properly abstained from exercising federal jurisdiction:

None of this is to say that Appellants ultimately will not prevail on their double jeopardy claim. It is only to say that where the alleged double jeopardy violation is far from clear, immediate, or irreparable, the important Younger policy of allowing the State to pursue its prosecution free from federal court intervention outweighs the Appellants’ interest in having the double jeopardy issue resolved in a federal forum.

Id. at 162.

We reaffirmed that holding when presented with the appropriateness of Younger abstention in a later appeal by the same parties. See Nivens II, 444 F.3d at 244 (“[T]he fact that [Petitioners] were able to present their claims and have them addressed in state court suffices and continues to make federal intervention inappropriate.”).

Nivens I and II control the disposition of this case. Unlike the petitioners in Gilliam, but like the petitioners in Nivens I and II, Petitioners here currently have access to the state trial and appellate courts to present their double jeopardy claims. They are now in the midst of that process, which they must complete before they can make a claim to federal jurisdiction. See id. Petitioners concede that they have raised their double jeopardy objections before the state trial court during the ongoing RJA proceedings. See Opening Br. 24, n.14 (“Petitioners acknowledge that they have re-raised the double jeopardy claim in pleadings submitted to the state trial court on remand.”). Consequently, Petitioners have not established they will suffer an immediate and irreparable constitutional deprivation.

Since we held oral argument in this case, Petitioners did raise their double jeopardy objections in the state trial court on remand, but did not prevail on that position. Even so, our holding is unchanged by the fact that Petitioners have so far been unsuccessful on the merits. “Abstention does not suddenly become improper simply because Appellants lost on the merits in the state court.” Nivens II, 444 F.3d at 243; accord Nivens I, 319 F.3d at 158 (“Simply put, an assertion that the North Carolina courts will likely decide a constitutional issue in a way contrary to what appellants believe the Constitution mandates is not a sufficient basis to avoid application of Younger abstention.”). The State need only allow Petitioners the opportunity to raise their constitutional argument, it need not agree with that argument. Moore v. Sims, 442 U.S. 415, 425-26, 99 S.Ct. 2371, 60 L.Ed.2d 994 (1979) (“Certainly, abstention is appropriate unless state law clearly bars the interposition of the constitutional claims.”); accord Nivens II, 444 F.3d at 243. That Petitioners have not yet secured the result they seek does not nullify the fact that they had — and, indeed, exercised — the opportunity to raise their double jeopardy claims in state court. See Younger, 401 U.S. at 45, 91 S.Ct. 746.

In short, we are constrained by Nivens I and II to affirm the district court’s decision that abstention under Younger is appropriate in this case. Petitioners have been able to present their double jeopardy arguments in the state court prior to any proceeding on the merits of their RJA claim. If Petitioners’ state court appeals prove unsuccessful, they may have an opportunity at that point to pursue habeas relief in federal court going forward. On that score, we offer no opinion one way or the other. See 28 U.S.C. §§ 2241, 2254. Petitioners may not, however, seek federal intervention into their pending state court litigation for a violation of the Double Jeopardy Clause because they have failed to show that North Carolina’s pretrial procedures are not able to afford them adequate protection.

2.

Petitioners attempt to distinguish the Nivens line of cases because the likelihood of success in that case was deemed “far from clear,” and so they assert the equities favored abstention there. They contend that their case, though, presents a more substantial double jeopardy argument. We are not convinced.

Petitioners seek an application of double jeopardy jurisprudence that has an unclear precedential basis and wish to apply it to a novel state law. They rely on Bullington v. Missouri, 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1981), and its progeny, which held the Double Jeopardy Clause prohibits the state from resentencing the defendant to death after the sentencer has effectively acquitted the defendant of that penalty by imposing a life sentence following a sentencing proceeding that bears substantially all the hallmarks of a trial. Petitioners rely on the premise that the RJA proceeding transposes into a traditional sentencing hearing in a capital case where the government must demonstrate aggravating factors that warrant the death penalty beyond a reasonable doubt.

Petitioners’ premise is “far from clear.” While the RJA proceedings share some characteristics of a trial, several features distinguish its statutory scheme from that of a traditional capital case. For one thing, the RJA does not utilize the familiar aggravating and mitigating circumstances approach. Instead, it utilizes a novel post-conviction capital-eligibility criterion unrelated to the particular circumstances of the offense or to any articulated trial error. And the burden of proof under the RJA differs from that of the traditional capital-sentencing proceeding where the State must prove the existence of aggravating circumstances beyond a reasonable doubt. In an RJA proceeding, by contrast, the burden of proof rests with the petitioner under a preponderance of the evidence standard. Such procedural variances appear to be important under the relevant Supreme Court precedent. See Bullington, 451 U.S. at 446, 101 S.Ct. 1852 (“Missouri’s use of the reasonable-doubt standard indicates that in a capital sentencing proceeding, it is the State, not the defendant, that should bear almost the entire risk of error.” (internal quotation marks omitted)); Arizona v. Rumsey, 467 U.S. 203, 210, 104 S.Ct. 2305, 81 L.Ed.2d 164 (1984) (“The usual rules of evidence govern the admission of evidence of aggravating circumstances, and the State must prove the existence of aggravating circumstances beyond a reasonable doubt.”). Thus, while we do not reach the merits of Petitioners contentions, we also do not accept their premise that their cases are unquestionably destined to succeed. As a consequence, Petitioners do not proffer a credible basis upon which to distinguish this Court’s germane holdings in Nivens I and II.

Petitioners also rejoin that Nivens I and II are inapplicable because the double jeopardy problem presented in that case involved multiple punishments, not multiple prosecutions. The double jeopardy issue in this case relates to multiple prosecutions, they counter. That simply isn’t so, as the only issue in this case is punishment, specifically, whether Petitioners are entitled to an alteration of their death penalty sentence under North Carolina’s RJA. There is no second “prosecution” by the State.

In short, Petitioners have not demonstrated exceptional circumstances or substantial danger of irreparable harm that justifies federal intervention in ongoing state proceedings.

In conclusion, we are not tasked with determining whether Petitioners’ double jeopardy claims will ultimately prove successful. Our sole consideration is whether a federal court, under Younger, should take the remarkable step of intervening in ongoing state court proceedings to decide federal constitutional issues for that court. We should not and do not take such a drastic departure from the normal course as none of the exceptions to Younger applies. We hold, therefore, the district court did not abuse its discretion when it abstained from exercising jurisdiction to decide Petitioners’ double jeopardy claims.

IV.

For the reasons stated above, we affirm the judgments of the district courts dismissing the petitions without prejudice.

AFFIRMED.

      . During the pendency of the State’s appeal, in June 2013, the North Carolina General Assembly repealed the RJA. See 2013 N.C. Sess. Laws 368, § 5(a).
      In May 2016, Petitioners and two other RJA defendants filed a petition for a writ of certio-rari in the Supreme Court of the United States seeking review of the North Carolina Supreme Court's decisions. The petition did address Robinson and Golphin's double jeopardy contentions. See Robinson v. North Carolina, No. 15-1397. Their certiorari petition was denied by the Supreme Court of the United States on October 3, 2016. Robinson v. North Carolina, - U.S. -, 137 S.Ct. 67, 196 L.Ed.2d 34 (2016) (mem.).

      . Petitioners sought and have been granted an extension of time to .petition for writs of certiorari in the North Carolina Supreme Court to appeal the recent decision of the state trial court.

      . The district court in Golphin’s case found the double jeopardy claim unexhausted because it believed Golphin did not raise the claim in response to the state’s petition for writ of certiorari. Golphin, No. 5:16-HC-2029-BO, slip op. at *11-12. That factual determination was clearly erroneous, as Golphin did, in fact, raise double jeopardy objections in his brief opposing certiorari.

      . The State itself recognized and addressed the double jeopardy issue in its opposing brief before the North Carolina Supreme Court, which further evidences Petitioners’ fair presentment of their claims. See Smith v. Digmon, 434 U.S. 332, 333, 98 S.Ct. 597, 54 L.Ed.2d 582 (1978) (per curiam) (finding that the State of Alabama’s opposition in its brief to petitioner’s constitutional claim in state court supported conclusion that petitioner had fairly presented that claim); Jones, 591 F.3d at 714 (observing the Commonwealth’s addressing double jeopardy issue in its brief before the Virginia Supreme Court demonstrated fair presentment of that claim). That the North Carolina Supreme Court declined to address Petitioners' double jeopardy claims does not alter the fair presentation of those claims. All that is required for purposes of exhaustion is that Petitioners "must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State’s established appellate review process.” O’Sullivan v. Boerck, 526 U.S. 838, 845, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999). Petitioners did so here.

      . Without pointing to any deficiency in the petitions, the State also posits that Petitioners should have filed their federal habeas petitions under 28 U.S.C. § 2254 instead of § 2241. We need not resolve this issue as the district court properly abstained from exercising jurisdiction over the claims under Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). Section 2254 applies to most post-conviction proceedings that are brought by petitioners who are "in custody pursuant to the judgment of a State court.” 28 U.S.C. § 2254(a); In re Wright, 826 F.3d 774, 783 (4th Cir. 2016) ("[W]hen a prisoner being held pursuant to the judgment of a State court files a habeas petition claiming the execution of his sentence is in violation of the Constitution, laws, or treaties of the United States, the more specific § 2254 and all associated statutory requirements shall apply, regardless of the statutory label the prisoner chooses to give his petition.” (internal quotation marks omitted)). However, a petition under § 2241 may be the appropriate vehicle for Petitioners’ claims here because, at the time the petitions were filed, Petitioners likely faced an indeterminate sentence as a result of ongoing state RJA proceedings and, therefore, were not in custody pursuant to a state court judgment. See Berman v. United States, 302 U.S. 211, 212, 58 S.Ct. 164, 82 L.Ed. 204 (1937) ("Final judgment in a criminal case means sentence. The sentence is the judgment."); Harrison v. Gillespie, 640 F.3d 888, 896 (9th Cir. 2011) ("In effect, Harrison is currently in custody under an indeterminate sentence for his first-degree murder conviction, and he is attacking the possibility of receiving a death sentence in the future. We therefore have jurisdiction under 28 U.S.C. § 2241.").

      . The State has conceded Petitioners are entitled to raise their double jeopardy argument in state court, and we accept the State’s representation at oral argument that it would not assert as a defense a procedural bar to Petitioners' making a double jeopardy argument during the state proceedings by some reading of the North Carolina Supreme Court’s order. Oral Argument Audio Recording 20:48-22:40.


source: Caselaw Access Project

author: EDWARD C. PRADO, Circuit Judge:

license: Public Domain

text:
    Kyle HALLE, Individually and On Behalf of Others Similarly Situated, Plaintiff-Appellant, v. GALLIANO MARINE SERVICE, L.L.C.; C-Innovation, L.L.C., Defendants-Appellees.
    No. 16-30558
    United States Court of Appeals, Fifth Circuit.
    Filed April 19, 2017

      David Isaac Moulton, Esq., Bruckner Burch, P.L.L.C., Houston, TX, for Plaintiff-Appellant.
    David Matthew Korn, Esq., Gillian Egan, MaryJo Lovie Roberts, Esq., Phelps Dunbar, L.L.P., New Orleans, LA, for Defendants-Appellees.
    Before PRADO, HIGGINSON, and COSTA, Circuit Judges.
   EDWARD C. PRADO, Circuit Judge:

Plaintiff-Appellant Kyle Halle sued Gal-liano Marine Service, LLC and C-Innovation, LLC (collectively, “the Defendants”) under the Fair Labor Standards Act (“the FLSA” or “the Act”) to recover unpaid wages for overtime worked during his employment at C-Innovation. The district court granted summary judgment against Halle because it concluded that Halle qualified as a “seaman” under the FLSA and was thus exempt from the Act’s overtime provisions. Halle appealed. We REVERSE and REMAND this case for further proceedings.

I. FACTUAL AND PROCEDURAL BACKGROUND

On October 30, 2015, Kyle Halle sued the Defendants under the FLSA for unpaid overtime. The Defendants in this case run a remotely- operated vehicle (“ROV”) business for offshore applications and employed Halle from May 12, 2009, to October 12, 2015, as an ROV Technician and ROV Supervisor.

ROVs are unoccupied mechanical devices used, among other things, to fix, service, and repair offshore, underwater drilling rigs. They are generally used to perform tasks that otherwise could not be performed by human divers because of depth or water conditions. Technicians like Halle navigate and control ROVs aboard an ROV Support Vessel, to which the ROVs remain tethered while in use. ROV Support Vessels serve as “a means of transporting their attached ROVs over water” and are specially outfitted for this purpose. The ROV’s “handling system, wench, A-frame, hydraulic power unity vans, and control system” are all welded to the support vessel.

The technicians who steer the ROVs work inside a windowless shipping container converted into an ROV command center located on the support vessel From there, the ROV Technicians steer and control the ROVs using a video feed and joysticks. Although the ROV command center is located on the support vessel, technicians are not mixed with the support vessel’s crew, cannot see whether any navigational issues are affecting the support vessel, and, according to Halle, are considered by the crew to be “passengers” or “third parties.” According to Halle, ROV Technicians are subject to a chain of command separate and apart from that of the support vessel. Halle in particular always reported to C-Innovation’s Operations Coordinator and Operations Manager, both of whom are land-based.

Halle’s particular duties were dedicated only to ROVs. According to Halle, he took no part in upkeep of the support vessel— he never performed maintenance work like sanding, painting, or chipping the ROV Support Vessel. Rather, the only maintenance work he performed was to the ROVs themselves. Halle also never steered the support vessel but, in his role as ROV Supervisor, did occasionally relay GPS coordinates from C-Innovation’s customers to the support vessel captain either by radio or by pointing to a location on a chart. This process apparently never took more than a few seconds. Despite his knowledge of the support vessel’s final destination, Halle had “nothing to do with determining the ROV Support Vessel’s path to the intended target, steering, anchoring, making any navigational decisions^] or taking any navigational actions.”

Halle sued the Defendants on October 30, 2015, for failing to pay him for overtime as purportedly required by the FLSA. The Defendants moved for summary judgment on January 25, 2016, arguing that Halle was exempt from the FLSA’s overtime provisions because he qualifies as a “seaman” under the Act. On February 25, 2016, the district court granted the Defendants’ motion and dismissed Halle’s claim with prejudice. Thereafter, Halle filed a motion for reconsideration, which was denied on April 18, 2016. Halle now appeals.

II. DISCUSSION

“We review a grant of summary judgment de novo, applying the same standard that the district court applied.” Smith v. Reg’l Transit Auth., 827 F.3d 412, 417 (5th Cir. 2016). Summary judgment is proper where “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). In reviewing a motion for summary judgment, factual inferences are viewed in the light most favorable to the nonmoving party. Smith, 827 F.3d at 417.

The FLSA requires employers to provide overtime pay to any employee who works more than forty hours per week unless an exemption from this protection applies. 29 U.S.C. §§ 207, 213; Coffin v. Blessey Marine Servs., Inc., 771 F.3d 276, 279 (5th Cir. 2014). It is the “employer [who] bears the burden to establish a claimed exemption.” Songer v. Dillon Res., Inc., 618 F.3d 467, 471 (5th Cir. 2010). This case involves the “seaman” exemption to the FLSA’s overtime provision, 29 U.S.C. § 213(b)(6), and presents an issue of first impression: whether ROV Technicians are seamen under the FLSA.

An employee is a seaman when the following criteria are met: “(1) the employee is subject to the authority, direction, and control of the master; and (2) the employee’s service is primarily offered to aid the vessel as a means of transportation, provided that the employee does not perform a substantial amount of different work.” Coffin, 771 F.3d at 281 (citing 29 C.F.R. § 783.31). Per Department of Labor (“DOL”) regulations, “work other than seaman work becomes substantial if it occupies more than 20 percent of the time worked by the employee during the workweek.” Id. at 279-80 (citing 29 C.F.R. § 783.37). This Court must “evaluate an employee’s duties based upon the character of the work he actually performs and not on what it is called or the place where it is performed.” Id. at 280 (citing 29 C.F.R. § 783.33). Because “what each employee actually does” determines how the FLSA applies to him, “application of the seaman exemption generally depends on the facts in each case.” Id.

A. The FLSA and Jones Act

We first reiterate a concept long-recognized by this Court: the definition of “seaman” in the Jones Act is not equivalent to that in the FLSA. Petroleum Treat-ers, 876 at 520. The two acts are “separate and independent of each other.” Id. While the Jones Act interprets seaman “broadly to maximize the scope of the remedial coverage,” the exemptions under the FLSA “have been drawn narrowly ... to minimize the number of employees who lose the Act’s protections.” Id. at 522-23. Compare Barrett v. Chevron, U.S.A, Inc., 781 F.2d 1067, 1070 (5th Cir. 1986) (describing the “expansive interpretation” given to the word “seaman” in the Jones Act), with Brennan v. Greene’s Propane Gas Serv., Inc., 479 F.2d 1027, 1032 (5th Cir. 1973) (noting how exemptions to the FLSA are construed narrowly against the employer). Given these differences, it is error for a court to resolve an FLSA case by resorting to legal standards, such as the definition of a “seaman” or an “appurtenance,” from Jones Act caselaw.

B. Application

As explained above, the test for whether someone is employed as a seaman involves two prongs. See Coffin, 771 F.3d at 281. The first prong asks whether the employee performs as “master or subject to the authority, direction, and control of the master aboard a vessel.” 29 C.F.R. § 783.31. Here, the district court seemingly equated the ROVs with “vessels” and concluded that Halle’s “direct[ion]” and “command” of the ROVs satisfied this element. But there is no evidence to suggest that the ROVs are vessels. The only “vessel” in this case is the ROV Support Vessel. And according to Halle’s sworn declaration, he was not subject to the support vessel’s chain of command and did not report to the support vessel’s captain. Contrarily, another employee submitted an affidavit attesting that Halle did report to the captain. This competing testimonial evidence precludes summary judgment as to prong one.

The second prong asks whether the “employee’s service is primarily offered to aid the vessel as a means of transportation.” Coffin, 771 F.3d at 281 (citing 29 C.F.R. § 783.31). Because we find it dis-positive in this case, the second prong will be the focus of our analysis. This inquiry concentrates on the duties of an employee. See 29 C.F.R. § 783.31; Coffin, 771 F.3d at 280. In accordance with DOL regulations, this Court focuses on whether the employee’s duties “primarily ... aid in the operation of [the] vessel as a means of transportation.” 29 C.F.R. § 783.31. We have intimated that the critical issue in analyzing this prong is determining whether the “primary purpose” of the particular individual’s work is safe navigation of the ship. Compare Owens v. SeaRiver Mar., Inc., 272 F.3d 698, 703-04 (5th Cir. 2001) (concluding that when the primary purpose of a tankerman’s job is “get[ting] cargo on or off the barge,” he is not a seaman), with Coffin, 771 F.3d at 283-84 (finding that vessel-based tankermen responsible for constant monitoring of barges to ensure safe navigation were seamen). ,

This Court’s decision in Walling v. W. D. Haden Co., 153 F.2d 196 (5th Cir. 1946), is particularly instructive. In W. D. Haden, employees engaged in dredging shell deposits were stationed on a dredge boat for months at a time. Id. at 197. In order to harvest shells from the ocean floor, dredgemen operated machinery attached to the dredge boat that would “cut[ ] up the shell deposit from the reef[,] suck[ ] it up[,] and deliver!] it upon a barge tied alongside the dredge.” Id. Other than the actual labor of dredging, dredgemen also stood watch and managed anchor cables and barge lines while on duty. Id. at 199. Even though the Court recognized the dredgemen were involved in some work of the “nautical kind,” it found that the “dominant employment [was] clearly the industrial one, the production of shells.” Id. In reaching its conclusion that the dredgemen were not seamen under the FLSA, this Court characterized the maritime work done by these employees as “incidental and occasional” because it took up only a “small fraction of the work time.” Id.; see also McKie v. Diamond Marine Co., 104 F.Supp. 275, 276-77 (S.D. Tex. 1952).

Halle’s work here is similar to that of the dredgemen in W. D. Haden. Like the dredgemen, who lived on the dredge boat and operated machinery attached to the boat to do industrial work, Halle lives on the ROV Support Vessel and operates the attached ROVs in the water to complete industrial tasks. Although Halle occasionally communicates GPS coordinates to the captain of the support vessel, he does not otherwise help ensure that the support vessel navigates safely or even in any particular manner from point A to point B. ROV Technicians do not control the “path to the intended target, steer[], anchor!], mak[e] any navigational decisions or tak[e] any navigational actions.” In fact, they apparently cannot even “see if there [are] navigational issues affecting the ROV Support Vessel.”

The Defendants argue that because the ROVs are attached to the ROV Support Vessel, any navigation, maintenance, service, and repair of those vehicles is essentially done to the vessel itself. But no case law affirmatively supports this position. If anything, W. D. Haden seems to contradict this argument. Like the dredge machinery in W. D. Haden, which was located on the dredge boat, the ROVs are located on the support vessel. Although certain components of the ROV system are structurally welded to the vessel, the ROVs themselves appear to only be connected temporarily by tethers. This seems analogous to dredging operations where a dredge boat, which carries the dredging machinery, is towed by a tug or vessel. See W. D. Haden, 153 F.2d at 197; McKie, 104 F.Supp. at 276. Thus, because this Court has not done so in comparable situations, we decline to now equate maintenance, repair, or navigation of superficially attached machinery (here, the ROVs) with maintenance, repair, or navigation of the support vessel. Cf. Marshall v. Woods Hole Oceanographic Inst., 458 F.Supp. 709, 711, 716, 719 (D. Mass. 1978) (holding that scientific crew members engaged in oceanographic research aboard a vessel' — • whose mission was scientific and which was specially designed and outfitted with equipment to support that mission — were not employed as seamen because they did not perform duties relevant to maintenance and navigation of the ship itself).

In its order denying Halle’s request for reconsideration, the district court relied primarily on Coffin to reaffirm its conclusion that Halle is a seaman. In Coffin, tankermen were responsible for both loading and unloading barges while the tug boat was docked as well as performing other barge duties while the vessel was in motion. 771 F.3d at 278 & n.3. Although this Court had previously concluded in Owens that loading and unloading barges was generally not seaman work, it noted that the duties of the vessel-based tankermen in Coffin were distinct. Id. at 280-82. Unlike the tankermen in the earlier Owens case, the tankermen in Coffin spent a significant portion of their time on the vessel performing loading and unloading duties during transit — i.e., inspecting and maintaining the barges to make “the captain’s job [of navigating the ship] easier.” Id. at 283-84. We concluded that because the tankermen spent such a substantial portion of their time performing these duties aboard the ship to ensure the ship’s safe navigation, the tankermen were seamen under the FLSA. Id. at 284-85.

But the facts in this case are acutely distinct from those in Coffin. It is true that both the tankermen in Coffin and the ROV Technicians in this case live and work on a vessel. But the similarities end there. While the tankermen in Coffin were members of the ship’s crew and answered to the captain, the ROV Technicians here have a completely separate command structure. Unlike the tankermen in Coffin, who spent a significant portion of their work time performing tasks that helped the captain safely navigate the ship and attached barges, the ROV Technicians do not assist with nearly any part of navigation. The only role the ROV Technicians seem to have in navigation is the occasional communication of coordinates to the captain of the support vessel.

While giving coordinates alone can perhaps be characterized as contributing to navigation, the question this Court must then answer is what proportion of Halle’s time is spent on that seaman’s work. See Coffin, 771 F.3d at 279-80 (recognizing that an employee is not a seaman if his nonseaman’s work becomes substantial— i.e., it occupies more than approximately 20% of the employee’s time). Based on the description of Halle’s work responsibilities, it seems that transmitting the coordinates, and even the entire process of calculating those coordinates, does not take up a demonstrable majority of his work time. ROV Technicians control ROVs remotely to provide “emergency backup for under-. water drilling operations^] ... turn subsea valves, disconnect and realign underwater lines, inspect underwater structures, and place marking beacons on the sea floor.” They are also responsible for maintaining and servicing the ROVs themselves. Even assuming that it takes an ROV Technician several hours every few days to calculate coordinates and then a few additional minutes to communicate that information to the captain of the support vessel, this does not clearly account for 80% of the estimated eighty-four plus hours worked weekly by ROV Technicians. Accordingly, the district court erred in granting the Defendant’s motion for summary judgment as it has not been established as a matter of law that the seaman exemption applies.

III. CONCLUSION

For the foregoing reasons, we REVERSE the district court’s summary judgment and REMAND this case for further proceedings.

      . Galliano Marine Service is the company responsible for Halle’s payroll checks, W-2s, and other payroll documents.

      . Halle sued on behalf of himself and others who are similarly situated.

      . Although not binding, this Court has stated repeatedly that these regulations are "entitled to great weight.” Coffin, 771 F.3d at 279; accord Dole v. Petroleum Treaters, Inc., 876 F.2d 518, 521 (5th Cir. 1989).

      . As this Court has recognized, however, strict application of the twenty percent rule is not necessary. Coffin, 771 F.3d at 284 n.5.

      . The Jones Act is a maritime statute that "provides a cause of action in negligence for 'any seaman’ injured 'in the course of his employment.’ ” Chandris, Inc. v. Latsis, 515 U.S. 347, 354, 115 S.Ct. 2172, 132 L.Ed.2d 314 (1995) (quoting 46 U.S.C. § 30104).

      . To be clear, nothing in the record suggests that Halle was actually responsible for calculating the GPS coordinates for the ROV Support Vessel's next destination; rather, it seems that he simply passed along the coordinates from C-Innovation to the support vessel captain.


author: JAMES E. GRAVES, JR., Circuit Judge:

text:
    Erin LINCOLN, Individually and as Representative of the Estate of John Lincoln; Kathleen Lincoln, Individually and as Representative of the Estate of John Lincoln, Plaintiffs-Appellees v. C. BARNES, Defendant-Appellant
    No. 16-10327
    United States Court of Appeals, Fifth Circuit.
    Filed April 20, 2017

      Susan E. Hutchison, Hutchison & Stoy, P.L.L.C., Fort Worth, TX, for Plaintiffs-Appellees.
    Bill L. Davis, Seth Byron Dennis, Assistant Attorney Generals, Office of the Attorney General, Austin, TX, for Defendant-Appellant.
    Before JOLLY, HIGGINBOTHAM, and GRAVES, Circuit Judges.
   JAMES E. GRAVES, JR., Circuit Judge:

Ranger Clair Barnes appeals the denial of his motion to dismiss based on qualified immunity. Because it was clearly established that Barnes’s conduct constituted an illegal seizure in violation of the .Fourth Amendment, we affirm.

I. BACKGROUND

This case arises out of the unfortunate police shooting of John Lincoln during a SWAT team operation at his mother’s residence. The following facts are taken from Plaintiffs’ Amended Complaint, which at this stage we presume to be true. John Lincoln was diagnosed with bipolar disorder and was taking medication to manage it. In December 2013, John ran out of his medication and for reasons unknown was unable to refill his prescription. On December 26, 2013, John had been dining with his father when he took one of his father’s guns and left the house. John’s father believed that he was headed to the home of his mother, Kathleen Lincoln, and that he was a threat to her life.

When John arrived at his mother’s house, she was not there, but John’s eighteen-year-old daughter, Erin Lincoln, who lived with her grandmother, was at home and let him into the house. After John left for Kathleen’s house, John’s father called John’s sisters and one of them, Kelly Lincoln, called the Colleyville police. A large SWAT team, including officers from both the Colleyville and North Richland Hills police departments arrived and surrounded Kathleen’s house.

A police dispatcher contacted Erin inside the house and asked if she was in harm’s way. Erin replied that she was not and that her father would not harm her. She also told the dispatcher that she was talking to her father to try to calm him down and that the police’s presence was upsetting him. When the phone rang again, Erin told her father not to pick it up because it would just upset him. Despite her advice, John picked up the phone and spoke with the police. The call upset him greatly.

John then began to open the front door to the house and to shout at the police, while holding his father’s gun. Every time he opened the door, Erin was standing immediately next to him. The last time John opened the door, three officers opened fire, killing him and narrowly missing Erin, who was standing by his side.

Erin fell to the ground next to her father’s body. She was then forcibly removed, placed in handcuffs, and put in the backseat of a police vehicle. Although she did not fight, struggle, or resist, she did ask the officer why she was being taken into custody and made it known that she wanted to remain with her father.

While Erin was being held in the patrol car, her aunt Kelly, an Arlington Police Department officer, who was on the scene in uniform, informed one of the Colleyville officers that her niece had severe social anxiety disorder and was emotionally distraught and she requested that Erin be released into her care. The Colleyville officer told Kelly that they would not release Erin because they needed to get a statement. Kelly demanded to speak with a supervisor. After about thirty minutes, a Colleyville Sergeant came over and reiterated that they were holding Erin to get a statement. Kelly responded that they were outside their authority by holding Erin as a witness against her will. The Sergeant refused to release Erin.

After being held in the back of the patrol car for about two hours, Erin was transported to the police station. Kelly went to the station to get Erin, but she was not allowed to see her. At the station, Erin was interrogated for five hours by Ranger Barnes and Officer Kyle Meeks and she was forced to write out a statement. After the officers obtained her statement, Erin was permitted to leave with Kelly. Erin was never charged with any crime.

Erin and Kathleen, individually and as representatives of the estate of John Lincoln, sued the Cities of Colleyville and North Richland Hills, Texas, and several officers involved in the incident, including Barnes. They asserted a variety of constitutional claims under 42 U.S.C. § 1988 stemming from the shooting and Erin’s subsequent detention. In pertinent part, Erin asserted that Barnes and Meeks violated her Fourth Amendment right to be free from unreasonable seizure when they took her into custody without a warrant, probable cause, or justifiable reason and interrogated her against her will for many hours, refusing her access to her family, including Kelly Lincoln.

All defendants, including Barnes, filed motions to dismiss. Barnes moved to dismiss on the basis of qualified immunity. In a series of orders, the district court dismissed all of the claims except the unreasonable seizure claims against Barnes, Meeks, and Officer Sandra Scott, who had transported Erin to the police station. As for Barnes, the court held that the allegations concerning Erin’s five-hour interrogation at the station, during which she was forced to write out a statement, stated a claim for violation of the Fourth Amendment. The court cited Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979), a 1979 Supreme Court decision which held that the involuntary detention and interrogation of an individual without probable cause on the grounds that he possessed information about an unsolved crime constituted an unreasonable seizure. Id. at 207, 99 S.Ct. 2248. The district court further determined that Barnes should have been on notice that his conduct was illegal based on a Tenth Circuit decision, Walker v. City of Orem, 451 F.3d 1139 (10th Cir. 2006), which held that an involuntary ninety-minute detention of witnesses to a police shooting for the purpose of obtaining information from them, including their statements, was unreasonable. Id. at 1149.

Barnes timely filed an interlocutory appeal to this Court.

II. JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction under 28 U.S.C. § 1291 to review the district court’s order denying Barnes qualified immunity as “a collateral order capable of immediate review.” Club Retro, L.L.C. v. Hilton, 568 F.3d 181, 194 (5th Cir. 2009) (citing Behrens v. Pelletier, 516 U.S. 299, 307, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996)). That jurisdiction, however, is “severely curtailed” and “restricted to determinations of questions of law and legal issues, and we do not consider the correctness of the plaintiffs version of the facts.” Id. (citations, internal quotations, and alterations omitted); see also Good v. Curtis, 601 F.3d 393, 397 (5th Cir. 2010).

Within this limited jurisdiction, our review of the denial of a motion to dismiss predicated on a defense of qualified immunity is de novo. Club Retro, 568 F.3d at 194. We must “take the complaint’s factual allegations as true and view them in the light most favorable to the plaintiff.” Hinojosa v. Livingston, 807 F.3d 657, 661 n.1 (5th Cir. 2015) (citing Atteberry v. Nocona Gen. Hosp., 430 F.3d 245, 252 (5th Cir. 2005)). “[A] plaintiff seeking to overcome qualified immunity must plead specific facts that both allow the court to draw the reasonable inference that the defendant is liable for the harm [s]he has alleged and that defeat a qualified immunity defense with equal specificity.” Id. at 664 (internal quotations and citation omitted).

III. DISCUSSION

A. Doctrine of Qualified Immunity

“The doctrine of qualified immunity shields officials from civil liability so long as their conduct ‘does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’ ” Mullenix v. Luna, — U.S. -, 136 S.Ct. 305, 308, 193 L.Ed.2d 255 (2015) (quoting Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009)) (internal quotation marks omitted). A clearly established right is one that is “sufficiently clear that every reasonable official would have understood that what he is doing violates that right.” Reichle v. Howards, 566 U.S. 658, 132 S.Ct. 2088, 2093, 182 L.Ed.2d 985 (2012) (internal quotations and alteration omitted). This inquiry “does not require a case directly on point, but existing precedent must have placed the statutory or eonstitu-tional question beyond debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011) (citations omitted); see also Morgan v. Swanson, 659 F.3d 359, 372 (5th Cir. 2011) (en banc) (“The sine qua non of the clearly-established inquiry is fair warning. Thus, we must ask not only whether courts have recognized the existence of a particular constitutional right, but also ... whether that right has been defined with sufficient clarity to enable a reasonable official to assess the lawfulness of his conduct.” (internal quotations and citations omitted)).

B. Fourth Amendment Right to Be Free from Unreasonable Seizure

Erin asserts that Barnes violated her Fourth Amendment right to be free from unreasonable seizure by taking her into custody without a warrant, probable cause, or justifiable reason and interrogating her against her will for five hours, during which she was forced to write out a statement. She argues that her detention constituted a defacto arrest.

We note at the outset that Barnes does not contend that the officers involved in the incident had a reasonable suspicion that Erin was involved with any criminal wrongdoing or that there was probable cause to believe she had committed or was committing a crime. The rationale for her detention rests solely on her status as a witness to her father’s shooting.

The question therefore is whether Erin’s detention at the police station for the purposes of questioning her as a witness to her father’s shooting and obtaining her statement satisfied the Fourth Amendment’s “reasonableness” requirement. The relevant facts are as follows: Erin witnessed the events leading up to her father’s death; after her father was lethally shot by members of the SWAT team, the police had an interest in detaining Erin to solicit information from her, including a statement; toward that end, Erin was handcuffed and placed in the backseat of a patrol car; after a period of approximately two hours, she was transported to the police station; and at the station, Barnes and Meeks questioned her for approximately five hours and forced her to write out a statement.

Dunaway v. New York involved several materially similar facts. In that case, officers were investigating a crime; they picked up petitioner at a neighbor’s house, drove him to police headquarters in a police car, placed him in an interrogation room, and questioned him regarding the crime. 442 U.S. at 203, 99 S.Ct. 2248. He was never “told he was under arrest, [but] he would have been physically restrained if he had attempted to leave.” Id. (citation omitted). It was undisputed that officers lacked probable cause for the detention. Id. at 206, 99 S.Ct. 2248. The State argued that his detention at the police station for questioning was justified on the grounds that police believed he possessed “intimate knowledge about a serious and unsolved crime.” Id. at 207, 99 S.Ct. 2248 (internal quotations and citation omitted). In holding petitioner’s seizure illegal, the Supreme Court emphasized that “detention for custodial interrogation — regardless of its label — intrudes so severely on interests protected by the Fourth Amendment as necessarily to trigger the traditional safeguards against illegal arrest.” Id. at 216, 99 S.Ct. 2248. Dunaway, in fact, merely reaffirmed this principle, which the Court had made clear ten years earlier in Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969) — namely, that an investigatory detention that, for all intents and purposes, is indistinguishable from custodial interrogation, requires no less probable cause than a traditional arrest. Id. at 726-27, 89 S.Ct. 1394 (“Nothing is more clear than that the Fourth Amendment was meant to prevent wholesale intrusions upon the personal security of our citizenry, whether these intrusions be termed ‘arrests’ or ‘investigatory detentions.’ ”); see also Hayes v. Florida, 470 U.S. 811, 815, 105 S.Ct. 1643, 84 L.Ed.2d 705 (1985) (“None of our later cases have undercut the holding in Davis that transportation to and investigative detention at the station house without probable cause or judicial authorization together violate the Fourth Amendment.”). Accordingly, police violate the Fourth Amendment when, absent probable cause or the individual’s consent, they seize and transport a person to the police station and subject her to prolonged interrogation. Dunaway, 442 U.S. at 216, 99 S.Ct. 2248.

C. Clearly Established Law

The second part of the qualified immunity inquiry looks to whether the right was clearly established at the time of the violation. The longstanding precedents we have just discussed have placed the instant “constitutional question beyond debate.” al-Kidd, 563 U.S. at 741, 131 S.Ct. 2074. Nevertheless, Barnes argues that he reasonably could have believed Erin’s detention was lawful because she was a witness to a crime and under certain circumstances, investigatory detentions on less than probable cause are constitutional. Barnes contends that the lawfulness of Erin’s detention is not governed by the principle announced in Davis and Duna-way; rather it should be assessed under the balancing test articulated in Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979). Under that test, the constitutionality of a seizure “involves a weighing of the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty.” Id. at 50-51, 99 S.Ct. 2637.

Barnes suggests that the Brown test governs all witness detentions, relying on Illinois v. Lidster, 540 U.S. 419, 124 S.Ct. 885, 157 L.Ed.2d 843 (2004), a case in which the Supreme Court upheld the constitutionality of a highway checkpoint at which officers briefly detained motorists to seek information about a fatal hit-and-run accident. Id. at 428, 124 S.Ct. 885. In determining that the checkpoint satisfied the Fourth Amendment’s reasonableness requirement, the Court analyzed the circumstances under the Brown factors. Id. at 427-28, 124 S.Ct. 885. The Court found the relevant public concern grave because police “were investigating a crime that had resulted in a human death.... And the stop’s objective was to help find the perpetrator!;.]” Id. at 427, 124 S.Ct. 885. The stop significantly advanced the public concern insofar as it was “appropriately tailored ... to fit important criminal investigatory needs.” Id. (noting that the stops took place shortly after the hit-and-run, on the same highway near the location of the accident, and about the same time of night). Finally, the stop posed only a minimal interference with the motorists’ liberty, requiring only a brief wait in line, and “provided little reason for anxiety or alarm.” Id. at 427-28, 124 S.Ct. 885.

Neither Brown nor Lidster are apposite to this case. Critically, Brown, which itself concerned the brief detention of an individual under suspicion of wrongdoing, not the prolonged interrogation of a witness to a crime, expressly limited its analysis to “[t]he reasonableness of seizures that are less intrusive than a traditional arrest.” 443 U.S. at 50, 99 S.Ct. 2637. Lidster also involved a seizure that fell far short of a traditional arrest. Moreover, in Lidster, the fact that “the stops interfered only minimally with liberty of the sort the Fourth Amendment seeks to protect” was, in the Court’s view, the “[m]ost importante]” factor weighing in favor of the checkpoint’s constitutionality. 540 U.S. at 427, 124 S.Ct. 885. These circumstances plainly distinguish these cases and their reasoning from the facts at bar.

If there was any lingering doubt, however, we need only turn back to Dunaway to dispel the notion that custodial interrogation of the kind here is subject to a balancing inquiry. In Dunaway, the State, like Barnes, had urged the application of a Terry-style balancing test to assess the reasonableness of custodial interrogations for investigatory purposes. 442 U.S. at 211, 99 S.Ct. 2248. The State argued that such seizures could be justified by mere ‘reasonable suspicion.’ Id. The Court flatly rejected this approach. It stated:

Terry and its progeny clearly do not support such a result. The narrow intrusions involved in those cases were judged by a balancing test rather than by the general principle that Fourth Amendment seizures must be supported by the ‘long-prevailing standards’ of probable cause, only because these intrusions fell far short of the kind of intrusion associated with an arrest.

Id. at 211-12, 99 S.Ct. 2248 (internal citation omitted). The same reasoning controls the outcome of the case at bar.

Barnes also relies on United States v. Montoya de Hernandez, 473 U.S. 531, 105 S.Ct. 3304, 87 L.Ed.2d 381 (1985), arguing that it suggests Erin’s five-hour interrogation was reasonable in light of the nearly sixteen-hour detention found reasonable there. First, Montoya de Hernandez was a case in which the detaining officers had reasonable suspicion that the detainee was smuggling illicit drugs across the border. Id. at 534, 544, 105 S.Ct. 3304. Therefore, the case has little bearing on the law concerning witness detention. Even if it did, the unusually long warrantless detention there was justified by the particular circumstances, where the officers had articu-lable suspicion that the detainee was smuggling drugs in her alimentary canal. Id. Under those circumstances, “[h]er detention for the period of time necessary to either verify or dispel the suspicion was not unreasonable.” Id. at 544, 105 S.Ct. 3304.

Nothing in Plaintiffs’ Amended Complaint suggests that comparable exigent circumstances existed here. Nor does Barnes contend that such circumstances existed to justify Erin’s prolonged detention and, most pertinently, her custodial interrogation. Indeed, police were not even questioning her about an unsolved crime for which the perpetrator might still be at large. They knew well who had caused John Lincoln’s death.

We also make no attempt to draw lines here regarding the duration of the detention. Therefore, Barnes’s concern that the district court unduly focused on the duration of Erin’s detention and that it improperly relied on Walker, 451 F.3d at 1149, to conclude that her five-hour detention was clearly 10 unreasonable is misplaced. Although we observe that our cases recognize that a detention of excessive duration can sometimes morph an investigatory stop into a defacto arrest, see, e.g., United States v. Massi, 761 F.3d 512, 521-22 (5th Cir. 2014); United States v. Zavala, 541 F.3d 562, 574 (5th Cir. 2008), our holding here rests on the nature of Erin’s detention and the lack of circumstances justifying her custodial interrogation. Walker is persuasive authority that the prolonged detention of witnesses to a police shooting for the sole purpose of obtaining information from them, including statements, is unreasonable absent any exigencies justifying the detention for investigative purposes. 451 F.3d at 1149. But the clearly established law governing this case derives from Davis and Dunaway, not Walker.

IV. CONCLUSION

While “the law ordinarily permits police to seek the voluntary cooperation of members of the public in the investigation of a crime,” Lidster, 540 U.S. at 425, 124 S.Ct. 885, “[a]bsent special circumstances, the person approached may not be detained ... but may refuse to cooperate and go on his way,” Terry v. Ohio, 392 U.S. 1, 34, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) (White, J., concurring); see also Florida v. Royer, 460 U.S. 491, 497-98, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983). Any further detention of such individual constitutes a seizure under the Fourth Amendment, which must satisfy the Fourth Amendment’s “reasonableness” requirement. Lidster, 540 U.S. at 426-27, 124 S.Ct. 885. As a general matter, the detention of a witness that is indistinguishable from custodial interrogation requires no less probable cause than a traditional arrest. Dunaway, 442 U.S. at 216, 99 S.Ct. 2248; Davis, 394 U.S. at 726-28, 89 S.Ct. 1394.

AFFIRMED.

      . Barnes suggested in his brief that Erin's detention could be justified on the basis that either reasonable suspicion or probable cause existed to believe she had committed the Texas offense of interference with public duties. See Tex. Penal Code § 38.15. At oral argument, however, Barnes’s counsel disclaimed reliance on either of these rationales. We therefore do not need to separately address whether the detention is justified on any basis other than her status as a witness. We note, however, that Barnes also did not raise these arguments in the district court. Thus, even if he continued to press these arguments now, we would not be able to address them as they are forfeited. See, e.g., United States v. Mix, 791 F.3d 603, 611 (5th Cir. 2015) (arguments not raised below are forfeited on appeal).

      . At the time the petitioner was taken in for questioning, he was not yet formally a suspect, although he eventually made incriminating statements during the interrogation that resulted in charges for attempted robbery and felony murder. 442 U.S. at 203, 99 S.Ct. 2248.