author: RHESA HAWKINS BARKSDALE, Circuit Judge:

text:
    Robert DEPERRODIL, Plaintiff-Appellee v. BOZOVIC MARINE, INCORPORATED, Defendant-Appellant
    No. 16-30009
    United States Court of Appeals, Fifth Circuit.
    Filed November 17, 2016

      Joseph Frazer Gaar, Jr., Jason Matthew Welborn, Joseph F. Gaar, Jr. A.P.L.C., Lafayette, LA, for Plaintiff-Appellee.
    Alan David Ezkovich, Attorney, Georges M. Legrand, Mouledoux, Bland, Legrand & Brackett, L.L.C., Aaron James Weide-nhaft, Ezkovich & Company, New Orleans, LA, for Defendant-Appellant.
    Before JOLLY, BARKSDALE, and SOUTHWICK, Circuit Judges.
   RHESA HAWKINS BARKSDALE, Circuit Judge:

In this maritime-tort action for injuries arising out of plaintiffs being taken to a work site on a vessel operated by defendant, a third-party tortfeasor, primarily at issue is whether the collateral-source rule allows plaintiff to recover, the unpaid, written-off portion of his billed medical expenses, when the remaining, paid portion of the billed expenses was through workers’-compensation insurance provided by his non-tortfeasor employer, pursuant to the Longshore and Harbor Workers’ Compensation Act (LHWCA). Also at issue are: whether liability can be imposed on the vessel’s owner for injuries suffered in rough seas when the passenger knew the weather conditions and risks; and whether a district court may use an above-average work-life expectancy to calculate future lost wages. AFFIRMED in part; VACATED in part; REMANDED.

I.

Robert dePerrodil was injured while aboard the M/V THUNDERSTAR, a, 65-foot crewboat owned and operated by Bo-zovic Marine, Inc. DePerrodil, a 70-year-old oilfield consultant with more than four decades of oilfield experience, worked for Petroleum Engineers, Inc. (PEI). PEI chartered the vessel, pperated by Captain Bozovic, to take dePerrodil from Venice, Louisiana, to his work site on an offshore platform.

When dePerrodil and Captain Bozovic realized dePerrodil would not be able to board the platform because the- liftboat was not present, dePerrodil asked Captain Bozovic to return to port. Facing rough seas while returning, Captain Bozovic steered the vessel over an eight-to-ten-foot wave at full throttle; but, he did not decelerate upon reaching the crest. The vessel fell into the wave’s trough, causing dePer-rodil (who was standing in the wheelhouse) to fall to the floor. He suffered, inter alia, injuries to his back.

Pursuant to the LHWCA, PEI carried workers’-compensation insurance for de-Perrodil. See 33 U.S.C. § 932(a)(1). That insurer for PEI paid $57,385.50 for dePer-rodil’s medical expenses.

Following a bench trial for this action based on admiralty jurisdiction, the court concluded Bozovic Marine was negligent for: failure to “request that dePerrodil go to the passenger area of the vessel”; failure to stay apprised of the weather conditions; and “erratic operation” of the vessel. DePerrodil v. Bozovic Marine, Inc., No. 6:13-cv-849, 2015 WL 8542829, at *3 (W.D. La. 10 Dec. 2015). As a result of the court’s concluding dePerrodil was comparatively negligent for staying in the wheelhouse, instead of moving independently to the passenger compartment, dePerrodil received 10% liability; Bozovic Marine, 90%. Id. at *4.

In awarding dePerrodil $984,395.52, id. at *7, the court held, inter alia, the collateral-source rule barred any discount of the medical expenses PEI and its insurer were billed, but not required to pay. Id. at *4-5. Accordingly, the court awarded the full amount of those expenses billed for dePer-rodil’s treatment, $186,080.30, even though only approximately one-third of them were paid. Id. at *7. And, in calculating future lost wages, the court used an above-average work-life expectancy of 75 years, as recommended by an expert vocational-rehabilitation counselor. Id. at *6-7.

II.

Maritime law governs this action. See Exec. Jet Aviation, Inc. v. City of Cleveland, Ohio, 409 U.S. 249, 253, 93 S.Ct. 493, 34 L.Ed.2d 454 (1972). Courts exercising maritime jurisdiction apply general principles of negligence law to tort actions. See, e.g., Canal Barge Co. v. Torco Oil Co., 220 F.3d 370, 376 (5th Cir. 2000); Daigle v. Point Landing, Inc., 616 F.2d 825, 827 (5th Cir. 1980).

A.

Regarding Bozovic Marine’s maintaining the court erred in finding it liable for 90% of dePerrodil’s injuries, the determination of a legal duty is reviewed de novo. Theriot v. United States, 245 F.3d 388, 394-95 (5th Cir. 1998). On the other hand, findings of negligence, including causation, are reviewed for clear error. See Trico Marine Assets, Inc. v. Diamond B Marine Servs., Inc., 332 F.3d 779, 786 (5th Cir. 2003). Accordingly, the conclusion that Bozovic Marine owed a duty of reasonable care is reviewed de novo; the findings of fact, pursuant to the proper legal standard, for clear error.

In a bench trial, the court must make separate findings of fact and conclusions of law. Fed. R. Civ. P. 52(a)(1). “Findings of fact, whether based on oral or other evidence, must not be set aside unless clearly erroneous, and the reviewing court must give due regard to the trial court’s opportunity to judge the witnesses’ credibility.” Fed. R. Civ. P. 52(a)(6). “A finding is clearly erroneous when the appellate court, viewing the evidence in its entirety, is left with the definite and firm conviction that a mistake has been made.” Bertucci Contracting Corp. v. M/V ANTWERPEN, 465 F.3d 254, 258-59 (5th Cir. 2006) (internal quotation marks omitted).

l.

For the following reasons, the proper legal duty was applied. See DePerrodil, 2015 WL 8542829, at *2-3. As the court stated, vessel owners owe their passengers a duty of reasonable care under the circumstances. See Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 630, 79 S.Ct. 406, 3 L.Ed.2d 550 (1959). Our court has held “shipowners, relatively speaking, are held to a high degree of care for the safety of their passengers”. Smith v. Southern Gulf Marine Co. No. 2, 791 F.2d 416, 420 (5th Cir. 1986). Among the relevant factors are the type of carrier, the crew’s experience, the risk involved, defendant’s degree of control over passengers, and defendant’s ability to take precaution against the risk. See id. at 421. Because the court properly identified Bo-zovic Marine’s legal duty before evaluating liability, its negligence finding is reviewed for clear error.

As discussed, the court found Captain Bozovic breached his duty by: (1) failing to tell dePerrodil to move to the passenger area (failure to warn); (2) failing to stay apprised of the relevant weather conditions; and (3) operating the vessel erratically. DePerrodil, 2015 WL 8542829, at *3. Bozovic Marine contends it did not breach its duty of reasonable care because the risks were open and obvious to dePerrodil: he was a longshoreman with four decades of experience in the Gulf; knew the seas were rough; and had a clear view of the weather conditions from the wheelhouse. Therefore, Bozovic Marine maintains, the captain did not have a duty to protect dePerrodil from the open-and-obvious risk of losing his balance in rough seas.

A vessel owner does not need to warn passengers or make special arrangements for open-and-obvious risks. See Massey v. Williams-McWilliams, Inc., 414 F.2d 675, 678-79 (5th Cir. 1969); Superior Oil Co. v. Trahan, 322 F.2d 234, 237 (5th Cir. 1963); see also Counts v. Lafayette Crewboats, Inc., 622 F.Supp. 299, 301 (W.D. La. 1983). For example, in Superior Oil, our court found a seaman comparatively negligent when he attempted to board a vessel by jumping from another deck. 322 F.2d at 235. Critical to the seaman’s negligence was “that [he] was an experienced seaman and should have been fully cognizant of the danger involved”. Id. at 237. Thus, failure to avoid an obvious risk led to the finding of comparative negligence. See id.

The case at hand is distinguishable because the court found Captain Bozovic liable based, in part, on his specific operation of the vessel, rather than his failure to warm dePerrodil of the risk. Captain Bozo-vic testified he watched the prior evening’s weather report on television, but did not continue to monitor weather conditions on the date he ferried dePerrodil. DePerrodil testified: Captain Bozovic made him aware of the 25 mile-per-hour winds; dePerrodil could see it “was choppy”; he had been on a vessel before when the Gulf was rough; and he was unconcerned about the weather conditions.

Once underway, dePerrodil was standing in the wheelhouse, helping Captain Bozovic look for the liftboat. When they realized dePerrodil would not be able to accomplish his job, he asked the captain to return to port. Captain Bozovic turned the vessel around, heading back into the wind and rougher seas, telling dePerrodil to “hold on”. Confronted with four-to-six-foot waves, Captain Bozovic began accelerating up the swells and decelerating down. De-Perrodil’s expert testified this was the proper method for operating the vessel in high seas.

Soon thereafter, however, an eight-to-ten-foot wave approached the vessel. Captain Bozovic accelerated to full throttle up the swell, but did not decelerate after cresting the wave. The vessel dropped into the resulting trough, and dePerrodil and a deckhand “went weightless”. DePerrodil fell to the floor, injuring, inter aim,, his back. .Captain Bozovic then decreased speed and idled back to port -without further incident.

The court did not clearly err in concluding, inter alia, that Captain Bozovic breached his duty to dePerrodil by cresting the eight-foot wave at full throttle. The failure to decelerate was the proximate cause of dePerrodil’s injuries. This operational error is underscored by Captain Bo-zovic’s ability to idle the vessel back to port after the accident. That is to say, but for Captain Bozovic’s operation of the vessel, dePerrodil would not have suffered his injuries.

The accident would have occurred regardless of whether dePerrodil knew the risks of rough seas. Notwithstanding de-Perrodil’s being aware of the weather, Captain Bozovic’s operation of the vessel cannot be considered an “open and obvious” risk to dePerrodil. As the court stated, “inclement weather does not absolve a captain from operating his vessel in a reasonably prudent manner”. DePerrodil, 2015 WL 8542829, at *3. Therefore, as noted, it was not clear error to And Bozo-vic Marine breached its duty of reasonable care under' these circumstances. Because the operational negligence is sufficient to sustain Bozovic Marine’s liability, it is unnecessary to consider the court’s other bases for liability: failure to warn; and failure to monitor the weather.

2.

The court’s apportionment of liability is also reviewed for clear error. Barto v. Shore Constr., L.L.C., 801 F.3d 465, 471 (5th Cir. 2015). It found dePerro-dil negligent for remaining in the wheelhouse, instead of moving independently to the passenger area, and assigned him 10% liability. DePerrodil, 2015 WL 8542829, at *4. DePerrodil does not dispute this finding. Bozovic Marine, on the other hand, maintains the parties should, at least, be equally liable.

The evidence showed dePerrodil was in the wheelhouse to look for his work site and did not intend .to go below once they were in rough seas (nor was he told to leave the wheelhouse). At trial, the parties did not present evidence about whether the injury would have occurred had dePerrodil been in the passenger area. Based on the trial record, including Captain Bozovic’s control over the vessel, it was not clear error to assign 90% of the liability to Bozovic Marine.

B.

Bozovic Marine maintains the court erred in applying the collateral-source rule and awarding dePerrodil medical expenses as billed, rather than paid. The application of the rule is reviewed de novo. Johnson v. Cenac Towing, Inc., 544 F.3d 296, 304 (5th Cir. 2000).

The collateral-source rule bars a tortfeasor from reducing his liability by the amount plaintiff recovers from independent sources. Davis v. Odeco, Inc., 18 F.3d 1237, 1243 (5th Cir. 1994). It is a substantive rule of law, as well as an evi-dentiary rule (disallowing evidence of insurance or other collateral payments that may influence a fact finder). Id.

In its simplest form, the rule asks whether the tortfeasor contributed to, or was otherwise responsible for, a particular income source. See Bourque v. Diamond M. Drilling Co., 623 F.2d 351, 354 (5th Cir. 1980). If not, the income is considered “independent of (or collateral to) the tortfeasor”, and the tortfeasor may not reduce its damages by that amount. Davis, 18 F.3d at 1243. In. practice, the rule allows plaintiffs to recover expenses they did not personally have to pay. See id. Without the- rule, however,, a third-party income source would create a windfall for the tort-feasor. Id. at 1244. Thus, the rule reflects a policy determination: better a potential windfall for the injured plaintiff .than the liable tortfeasor. See Restatement (Second) of Torts § 920A cmt. b. (Am. Law Inst. 1979) (“[I]t is the position of the law that a benefit that is directed to the injured party should not be shifted so as to beconie a windfall for the tortfeasor”.).

The analysis is complicated when a tortfeasor contributes to a portion of the collateral source. See, e.g., Davis, 18 F.3d at 1244. For instance, an employer-tortfeasor may pay part of an employee’s health-insurance plan. See Johnson, 544 F.3d at 305. In that situation, courts ask whether the collateral source is a bargained-for fringe benefit. See id. If so, the fringe benefit is compensation to which the employee is already entitled; as a result, an employer cannot reduce its liability by paying employment compensation; Davis, 18 F.3d at 1244. Thus, bargained-for fringe benefits are considered collateral to an employer’s liability. Id. On the other hand, when an employer obtains a liability-insurance plan, it is providing pre-accident insurance to protect itself from post-accident expenses. See Phillips v. Western Co., 953 F.2d 923, 932 (5th Cir. 1992) (citing Allen v. Exxon Shipping Co., 639 F.Supp. 1545, 1547-48 (D. Me. 1986)). There, the collateral-source rule does pot apply. See id.

Courts, therefore, must determine whether a payment stems from a fringe benefit or a prophylactic protection against liability. As our court stated, the “[c]urrent application of the collateral source • rule thus turns on the character of the benefits received, as well as the source of those benefits”. Davis, 18 F.3d at 1244 (emphasis -in original). :

Here, the parties rely ón a five-factor test from Phillips to determine whether the collateral-source rule applies to workers’-compensation insurance. Phillips, 953 F.2d at 932. Phillips and its progeny, however, arise in the employer-tortfeasor context. See, e.g., Johnson, 544 F.3d at 305-07; Davis, 18 F.3d at 1244-45; Phillips, 953 F.2d at 927, 932. The Phillips factors are applicable only when the tortfeasor contributes to the benefit. See Johnson, 544 F.3d at 304-05. PEI was neither negligent, nor responsible for, dePerrodil’s injuries; rather, Bozovic Marine is a third-party tortfeasor. Accordingly, the Phillips analysis is inapposite, and the standard collateral-source rule asks whether the payment source was independent of the liable party. See Davis, 18 F.3d at 1243.

PEI’s LHWCA insurer paid de-Perrodil’s medical expenses. Bozovic Marine played no role in securing that insurance coverage. Thus, the collateral-source rule applies, and Bozovic Marine is liable for the medical expenses the insurer paid on dePerrodil’s behalf. (33 U.S.C. § 933 entitles insurers to subrogation for LHWCA payments.)

The question remains, however, whether the maritime collateral-source rule allows plaintiffs to recover the amount billed, or only the amount paid. As noted, dePerrodil was billed $186,080.30, but the insurer was only required to pay $57,385.50; the balance was written-off. Neither dePerrodil, PEI, nor its insurer were ever liable for the $128,694.80 write-off. (Along that line, citing Louisiana and California law, the court stated: “A plaintiff cannot recover economic damages for medical fees that the provider is precluded, either by agreement or by law, from collecting from the employer”. DePerrodil, 2015 WL 8542829, at *5. But, notwithstanding its just-stated rule, and without further analysis, it awarded dePerrodil the amount initially billed, $186,080.30. Id. at *7.)

There is no direct authority regarding the treatment of written-off LHWCA medical expenses in the maritime-tort context. Consequently, we must look to persuasive authority; namely state and analogous maritime authority. See Manderson v. Chet Morrison Contractors, Inc., 666 F.3d 373, 381 (5th Cir. 2012) (reviewing prior state-law and maritime decisions).' State laws differ as to their approach to written-off expenses in tort cases; within our circuit alone, three different rules prevail. In Mississippi, the collateral-source rule allows plaintiffs to recover write-offs. See Wal-Mart Stores, Inc. v. Frierson, 818 So.2d 1135, 1139-40 (Miss. 2002) (allowing plaintiff to submit evidence of written-off Medicaid expenses). Texas, on the other hand, does not “allow recovery as damages of medical expenses a health care provider is not entitled:.to charge”. Haygood v. De Escabedo, 356 S.W.3d 390, 396 (Tex. 2012) (considering amounts charged in excess of Medicaid limits). In contrast to the rules in each of these two States, Louisiana allows write-off recovery if plaintiff provided consideration for the benefit or suffered a diminution in patrimony. See Bozeman v. State, 879 So.2d 692, 705-06 (La. 2004).

In the maritime context, our court considered a similar issue in Manderson, 666 F.3d at 382. There, the question was, inter alia, whether the collateral-source rule allows recovery of written-off medical expenses when an employer paid the expenses as part of its maritime cure obligation. The Manderson court stated:

[O]ur court has repeatedly held an injured seaman may recover maintenance and cure only for those expenses “actually incurred”. E.g., Davis, 18 F.3d at 1246; Boudreaux v. United States, 280 F.3d 461, 468 (5th Cir. 2002). Accordingly, the relevant amount is that needed to satisfy the seaman’s medical charges. This applies whether the charges are incurred by a seaman’s insurer on his behalf and then paid at a written-down rate, or incurred and then paid by the seaman himself, including at a non-discounted rate.

666 F.3d at 382. Based on this discussion, our court held it was error to award the amount charged, rather than paid. Id.

Although Manderson is not binding—it involved maritime cure, not a maritime tort or LHWCA insurance—it is the most applicable of the various approaches to write-offs. Moreover, its rationale is very persuasive because maritime cure and LHWCA insurance create similar obligations for employers.

Cure is a vessel-owner’s long-established duty to pay medical expenses for seamen injured at sea. Id. at 380. It compels an employer to pay work-related medical expenses, regardless of “fault or negligence of the shipowner”. Bertram v. Freeport McMoran, Inc., 35 F.3d 1008, 1013 (5th Cir. 1994).

The LHWCA was enacted in part based on shortcomings of maritime cure. See generally P.C. Pfeiffer Co. v. Ford, 444 U.S. 69, 75, 78, 100 S.Ct. 328, 62 L.Ed.2d 225 (1979) (discussing Congressional intent behind the LHWCA). Longshoremen and harbor workers do not necessarily qualify for maritime maintenance and cure because a significant portion of their work is done on shore. Id. To cover these workers, Congress enacted the LHWCA, which incorporates and replaces several aspects of maritime common law. See 33 U.S.C. § 905 (“Exclusiveness of liability”); P.C. Pheiffer, 444 U.S. at 75, 100 S.Ct. 328 (“Congress intended that a worker’s eligibility for federal benefits would not depend on whether he was injured while walking down a gangway or while taking his first step onto the land.”).

The LHWCA requires employers to carry workers’-compensation insurance to pay for work-related injuries. 33 U.S.C. § 932. Like maritime cure, LHWCA creates a no-fault basis for paying a longshoreman’s medical expenses. 33 U.S.C. § 904(b) (“Compensation shall be payable irrespective of fault as a cause for the injury.”). When a third-party tortfeasor is responsible for the employee’s injury, cure and LHWCA insurance function in the same manner: the employer (or its insurer) has an immediate duty to pay medical expenses even though it is not at fault. These similarities counsel that Mander-son—prohibiting write-off recovery—provides the correct rule for both maritime cure and LHWCA maritime-tort cases.

In sum, LHWCA medical-expense payments are collateral to a third-party tortfeasor only to the extent paid; in other words, under those circumstances, plaintiff may not recover for expenses billed, but not paid. Therefore, the district court erred in awarding the full amount billed. Instead, the proper measure of those damages is the far lesser amount the insurer paid to cover dePerrodil’s medical expenses: $57,385.50.

C.

Finally, Bozovic Marine asserts the court miscalculated dePerrodil’s future lost earnings because it did not use the Bureau of Labor Statistics (BLS) work-life expectancy average. Damages calculations are findings of fact, reviewed for clear error. Comar Marine, Corp. v. Raider Marine Logistics, L.L.C., 792 F.3d 564, 574 (5th Cir. 2015).

• Courts use work-life expectancy data to calculate future earnings, unless there is evidence supporting a variation from the average. E.g., Madore v. Ingram Tank Ships, Inc., 732 F.2d 475, 478 (5th Cir. 1984). “Such an average is not conclusive. It may be shown by evidence that a particular person, by virtue of his health or occupation or other factors, is likely to live and wdrk a longer, or shorter, period than the average.” Id. (emphasis omitted).

According to BLS data, dePerro-dil had a work-life expectancy of 72 years. At trial, however, dePerrodil presented a vocational-rehabilitation counselor as an expert witness. She interviewed dePerrodil on two occasions and reviewed his medical history. She concluded it was “very reasonable” dePerrodil would work until age 75; this conclusion was based on: dePerrodil’s testimony that he and his wife had an agreement he would work until age 75; his work history; his earnings records; and his healthcare providers’ recommendations for future treatment. DePerrodil’s expert economist then provided the court with two calculations, one using BLS’ age-72 work-life expectancy; the other, the vocational counselor’s age-75 expectancy. With both calculations before it, the court awarded future lost wages based on an age-75 retirement. See DePerrodil, 2015 WL 8542829, at *5-6.

Bozovic Marine points to two cases in which a court erred by using the plaintiffs stated retirement- goal, rather than the BLS average. In Madore, the parties each presented expert testimony supporting a 25.8-year work-life expectancy for the injured seaman. 732 F.2d at 478. The calculations were based on the BLS average, and the parties presented no other evidence on the matter. Id. Nonetheless, the district court awarded lost-wage damages based on a work-life expectancy of 30 years (until the plaintiff turned 65). Id. Our court held this was error because the parties presented no evidence to justify a departure from the BLS average. Id.

Another district court chose an above-average calculation “in the middle” of the BLS projection and the Social Security retirement age of 67. See Barto, 801 F.3d at 475. There, the only relevant evidence was plaintiffs testimony he planned to work until he could retire, “[wjhatever the retirement age is”. Id. Our court stated: “even if the district court believed [plaintiff] wanted to work until age 67, wanting to work until age 67 is not the only or even the most significant factor in determining whether someone actually will work until age 67”. Id. (emphasis in original). Citing Madore, our court held this vague testimony was insufficient to support an above-average work-life expectancy. Id. at 475-76.

Here, the court’s use of age 75 to calculate damages was not clearly erroneous. DePerrodil fully developed the evidentiary basis for such a departure from the BLS average. Unlike in Madore, dePerrodil presented an expert (vocational-rehabilitation counselor) and the medical history upon which the expert based her opinion. As was the case in Barto, dePerrodil’s stated retirement goal was a critical piece of information. Unlike Barto, however, de-Perrodil’s goal was specific and corroborated by an agreement with his wife to work until age 75. Furthermore, the vocational counselor agreed it was a “very reasonable” goal, considering his medical history, work history, and future medical prognosis. Neither of the plaintiffs in Ma-dore or Barto presented a vocational expert to justify a departure from the BLS statistics. For these reasons, it was not clear error for the court to credit the vocational counselor’s expert testimony and award losfe-wage damages until age 75.

III.

For the foregoing reasons, the judgment is AFFIRMED, except for the award of medical expenses; that award is VACATED. This matter is REMANDED for entry of an amended judgment consistent with this opinion.


source: Caselaw Access Project

author: EDWARD C. PRADO, Circuit Judge:

license: Public Domain

text:
    Joan Gale FRANK; Jon A. Bell; Doctor Samuel Bukrinsky; Jaime Alexis Arroyo Bornstein; Peggy Roif Rotstain; Juan C. Olano; John Wade, in his capacity as trustee of the Microchip ID Systems, Inc. Retirement Plan, on behalf of themselves and all others similarly situated, Plaintiffs-Appellees, v. The COMMONWEALTH OF ANTIGUA AND BARBUDA, Defendant-Appellant. The Official Stanford Investors Committee, Plaintiff-Appellee, v. Antigua and Barbuda, Defendant-Appellant.
    No. 15-10717
    Cons. w/ No. 15-10788
    United States Court of Appeals, Fifth Circuit.
    Filed November 22, 2016

      Peter Daniel Morgenstem, Esq., Joshua Eli Abraham, Esq., Butzel Long, P.C., New York, NY, Clifton Scott Elgarten, Esq., Stuart H. Newberger, Crowell &
      Moling, L.L.P., Washington, DC, for Plaintiffs-Appellees.
    Joshua James Newcomer, Emil Thomas Bayko, McKool Smith, P.C., Emil Thomas Bayko, Porter & Hedges, L.L.P., Houston, TX, for Defendant-Appellant.
    Before WIENER, PRADO, and OWEN, Circuit Judges.
   EDWARD C. PRADO, Circuit Judge:

These consolidated cases involve Defendant-Appellant, the Commonwealth of Antigua and Barbuda (“Antigua”), and its alleged involvement with the Stanford Ponzi scheme. As a foreign nation, Antigua challenged the district court’s jurisdiction in each suit under the Foreign Sovereign Immunities Act (“FSIA”). The district court determined that it had jurisdiction over the suits under both the commercial activity and waiver exceptions of the FSIA. Antigua appeals these rulings. We REVERSE in part and REMAND.

I. FACTUAL AND PROCEDURAL BACKGROUND

The consolidated cases involved in this appeal are: (1) No. 15-10717, Frank et al. v. Commonwealth of Antigua & Barbuda and (2) No. 15-10788, Official Stanford Investors Committee v. Antigua & Barbuda. Plaintiffs in the first suit, the “Frank suit,” are individual customers of Stanford International Bank, Ltd. (“SIBL”) that “had money on deposit at SIBL, and held [certificates of deposit (“CDs”)] issued by SIBL.” Plaintiff in the second suit, the Official Stanford Investors Committee (“OSIC”), the “OSIC suit,” is a court-appointed committee representing the interests of SIBL depositors and the court-appointed receiver and receivership estates. Defendant-Appellant Antigua is an island nation located in the Caribbean. Both the Frank and OSIC suits were filed over Antigua’s alleged involvement with the Stanford Ponzi scheme and were consolidated on appeal solely to address whether the district court has jurisdiction over Antigua under the FSIA.

A. Stanford Ponzi Scheme

To understand the underlying allegations in both suits, a brief explanation of the Stanford Ponzi scheme is required. Allen Stanford owned and operated multiple financial entities, including the SIBL, which was an offshore bank located in Antigua. Janvey v. Democratic Senatorial Campaign Comm., Inc., 712 F.3d 185, 188 (5th Cir. 2013). Through these entities, Stanford sold CDs to investors, promising exceptionally high rates- of return. Id. Most of the funds raised from the sale of these CDs were never invested, as promised, but were used to pay back other investors in the scheme. Id. When the scheme collapsed in 2009, Stanford had sold over $7 billion in fraudulent CDs. Id. at 188-89. Stanford was subsequently convicted of multiple federal crimes and was sentenced to 110 years’ imprisonment. United States v. Kuhrt, 788 F.3d 403, 412 (5th Cir. 2015); Janvey, 712 F.3d at 189.

B. Antigua’s Alleged Involvement in the Scheme

The primary allegation in both the Frank and OSIC suits is that Antigua acted as an active and willing participant in Stanford’s scheme and knowingly provided Stanford and his businesses a safe harbor from regulatory scrutiny. Plaintiffs in both suits allege that Stanford and Antigua engaged in a quid pro quo relationship in which Stanford provided Antigua financial incentives to encourage and ensure its involvement in his scheme by bribing public officials and providing loans to Antigua, which were never repaid. Specifically, Plaintiffs allege that the “loans were merely a way to transfer the proceeds of the Ponzi scheme to Antigua.” In exchange for the loans, they allege that “Antigua assisted Stanford by conferring legitimacy on the fraudulent enterprise and on Stanford himself, providing assurance to investors that the activities of SIBL and Stanford were legitimate and subject to regulatory authority.”

Plaintiffs • contend that as part of its involvement in the Ponzi scheme, Antigua allowed Stanford undue influence over the regulations his organizations would be subject to. They also allege that Stanford exerted undue influence over the individuals charged with ensuring that he and his organizations were in compliance with the relevant regulations. Crucial to Antigua’s alleged involvement with Stanford’s scheme was the Financial Services Regulatory Commission of Antigua (“FSRC”) and Leroy King, the FSRC’s Administrator and Chief Executive Officer, who were tasked with regulating the SIBL. Plaintiffs allege that Stanford bribed King in order to allow the SIBL to escape regulatory scrutiny from the FSRC.

C. Frank Suit

In July 2009, Frank filed a complaint on behalf of himself and similarly situated individuals alleging various claims under the Racketeer Influenced and Corrupt Organizations Act (“RICO”), a claim for aiding and abetting fraud, and a claim to recover fraudulent transfers under the Texas Uniform Fraudulent Transfer Act (“TUFTA”). Antigua filed a motion to dismiss in December 2010, alleging that the district court lacked jurisdiction under the FSIA and that Frank failed to state a claim upon which relief could be granted. Frank subsequently abandoned the RICO claims. In June 2015, the district court granted Antigua’s motion in part and denied it in part. Specifically, the district court dismissed Frank’s TUFTA claim for lack of standing and held that it had jurisdiction under the FSIA over the aiding and abetting fraud claim, which is the only remaining claim on appeal.

D. OSIC Suit

In February 2013, OSIC filed a complaint alleging two breach of contract claims, a claim for avoidance and recovery of fraudulent transfers under TUFTA, a claim for aiding and abetting fraud, a claim for aiding and abetting a breach of fiduciary duty, civil' conspiracy, and a claim for aiding and abetting violations of the Texas Securities Act. Antigua moved to dismiss in January 2014, arguing that the district court lacked jurisdiction under the FSIA and that OSIC failed to state a claim upon which relief could be granted. The district court granted Antigua’s motion in part and denied it in part. Specifically, the district court dismissed OSIC’s TUFTA claims for constructive fraudulent transfers occurring prior to February 15, 2009, but held that it had jurisdiction over all of OSIC’s remaining claims, including its TUFTA claims for actual fraudulent transfers.

II. JURISDICTION AND STANDARD OF REVIEW

Under the collateral order doctrine, this Court has interlocutory appellate jurisdiction over a motion to dismiss on the basis of sovereign immunity. Rodriguez v. Transnave Inc., 8 F.3d 284, 286 n.4 (5th Cir. 1993).

Our review of a district court’s sovereign immunity ruling under the FSIA is de novo. Id. at 287. This Court may. “decide only legal issues when [it] review[s] an appeal from a collateral order.” United States v. Moats, 961 F.2d 1198, 1202 (5th Cir. 1992). “This rule carries even more weight here because the district court resolved FSIA immunity ... on the basis of the complaint,” id. (citation-omitted), and, as such, we must assume the truth of the facts asserted, see Saudi Arabia v. Nelson, 507 U.S. 349, 351, 113 S.Ct. 1471, 123 L.Ed.2d 47 (1993).

III. DISCUSSION

A. The FSIA

A suit is properly dismissed when a court lacks subject matter jurisdiction over the case. Home Builders Ass’n of Miss., Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998). The FSIA “provides the sole source of subject matter jurisdiction in suits against a foreign state.” Dale v. Colagiovanni, 443 F.3d 425, 427-28 (5th Cir. 2006); see also 28 U.S.C. § 1604. “The general rule under the FSIA is that foreign .states are immune from the jurisdiction of the United States Courts.” Dale, 443 F.3d at 428 (quoting Byrd v. Corporacion Forestal y Industrial de Olancho S.A., 182 F.3d 380, 388 (5th Cir. 1999), abrogated on other grounds by Samantar v. Yousuf, 560 U.S. 305, 130 S.Ct. 2278, 176 L.Ed.2d 1047 (2010)).

“However, a district court can exercise subject matter jurisdiction over a foreign state if one of the statute’s exceptions apply.” Id. at 428 (quoting Byrd, 182 F.3d at 388). A foreign state “need only present a prima facie case that it is a foreign' state; and, if it does, the burden shifts to the party opposing immunity to present evidence that one of the exceptions to immunity applies.” Kelly v. Syria Shell Petroleum Dev. B.V., 213 F.3d 841, 847 (5th Cir. 2000). Once the party seeking the exception has “assert[ed] at least some facts that would establish the exception,” “the party seeking immunity bears the ultimate burden of proving the nonapplica-bility of the exception[ braised by its opponent.” Stena Rederi AB v. Comision de Contratos del Comite Ejecutivo General del Sindicato Revolucionario de Trabajadores Petroleros de la Republica Mexicana, S.C., 923 F.2d 380, 390 n.14 (5th Cir. 1991).

This appeal involves two exceptions to sovereign immunity under the FSIA—the commercial activity exception and the waiver exception. We will address each in turn.

B. Commercial Activity Exception

On appeal, Antigua contests the district court’s application of the commercial activity exception in both suits. It does not contest the application of this exception to the breach of contract claims in the OSIC suit “to the extent that they are ... limited to the contracts alleged in the OSIC Complaint.” Therefore, regardless of our resolution of this appeal, the OSIC suit will proceed on the breach of contract claims. Therefore, we address only the district court’s holding on the commercial activity exception as it applies to OSIC’s tort and TUFTA claims, as well as Frank’s aiding and abetting claim.

The commercial activity exception contains three clauses, each describing different circumstances in which the exception applies. See 28 U.S.C. § 1605(a)(2). This appeal involves the third clause of the exception, which provides that a foreign state is not immune from suit in the United States when “[1] the action is based ... upon an act outside the territory of the United States [2] in connection with a commercial activity of the foreign state elsewhere and [3] that act causes a direct effect in the United States.” Id. “The first two elements ensure that ‘there must be a connection between the plaintiffs cause of action and the commercial acts of the foreign sovereign.’ ” Aldy ex rel. Aldy v. Valmet Paper Mach., 74 F.3d 72, 75 (5th Cir. 1996) (emphasis omitted) (quoting Stena Rederi, 923 F.2d at 386). The third element ensures there is a jurisdictional nexus with the United States. Arriba, 962 F.2d at 533. Our analysis focuses on the “direct effect” requirement.

The “direct effect” requirement involves a determination of whether the acts the suits are “based upon” had “a direct effect in the United States.” 28 U.S.C. § 1605(a)(2). “[A]n effect is ‘direct’ if it follows ‘as an immediate consequence of the defendant’s ... activity,’ ” Republic of Arg. v. Weltover, Inc., 504 U.S. 607, 618, 112 S.Ct. 2160, 119 L.Ed.2d 394 (1992) (second alteration in original) (quoting Weltover, Inc. v. Republic of Arg., 941 F.2d 145, 152 (2d Cir. 1991)), and “is one which has no intervening element, but, rather, flows in a straight line without deviation or interruption,” Princz v. Fed. Republic of Ger., 26 F.3d 1166, 1172 (D.C. Cir. 1994) (quoting Upton v. Empire of Iran, 459 F.Supp. 264, 266 (D.D.C. 1978)). There is no requirement that the effect be “ ‘substantial’ or ‘foreseeable,’ ” but it can-not be “purely trivial.” Id. (quoting Weltover, 504 U.S. at 618, 112 S.Ct. 2160).

In determinihg whether an act had a direct effect in the United States; “[t]he question is, was the effect sufficiently ‘direct’ and sufficiently ‘in the United States’ that Congress would have wanted an American court to hear the case?” Callejo v. Bancomer, S.A., 764 F.2d 1101, 1111 (5th Cir. 1985) (quoting Tex. Trading & Milling Corp. v. Fed. Republic of Nigeria, 647 F.2d 300, 313 (2d Cir. 1981)).

Although place of payment is not a decisive factor on -its own, id. at 1112, this Court has previously held “that a financial loss incurred in the-United States by an American plaintiff, if it is an immediate consequence of the defendant’s activity, constitutes a direct effect sufficient to support jurisdiction under the third clause of the commercial activity exception to the FSIA,” Voest-Alpine, Trading USA Corp. v. Bank of China, 142 F.3d 887, 897 (5th Cir. 1998). In Voest-Alpine the Bank of China refused to pay on a letter of credit owed to the plaintiff, and the' plaintiff sued for breach. Id. at 890-91. This Court held that the plaintiff, which was an American company, “suffered a nontrivial financial loss in the United States in the form of funds not remitted to its account at a Texas bank” and that failure to be paid was an “‘immediate consequence’ of the Bank of China’s actions.” Id. at 896. Therefore, the “direct effect” requirement was met. Id. at 897.

A “direct effect” may also exist when a contract with a foreign nation was to be performed and payment was to be made in the United States. See UNC Lear Servs., Inc. v. Kingdom of Saudi Arabia, 581 F.3d 210, 218-19 (5th Cir. 2009). In Weltover, the Supreme Court held that Argentina’s rescheduling of bond maturity dates had a “direct effect” in the United States. 504 U.S. at 618-19, 112 S.Ct. 2160. Explaining its conclusion, the Court noted that “[ble-cause New York was thus the place of performance for Argentina’s ultimate contractual obligations, the rescheduling of those obligations necessarily had a ‘direct effect’ in the United States.” Id. at 619, 112 S.Ct. 2160.

On appeal, Frank and OSIC argue that two different financial losses had a “direct effect” on investors in the United States: (1) Stanford’s Ponzi scheme itself and (2) Antigua’s failure to repay the loans it received from Stanford. In regard to the argument that Antigua’s actions had a “direct effect” on American investors who bought Stanford’s fraudulent CDs, unlike Weltover and Voest-Alpine, the financial loss to American investors involved in Stanford’s Ponzi scheme is not an “immediate consequence” of Antigua’s actions. “Defining ‘direct effect’ to permit jurisdiction when a foreign state’s actions precipitate reactions by third parties, which reactions then have an impact on a plaintiff, would foster uncertainty in both foreign states and private counter-parties.” Virtual Countries, Inc. v. Republic of S. Afr., 300 F.3d 230, 238 (2d Cir. 2002). While Antigua may have helped facilitate Stanford’s sale of the fraudulent CDs, Stanford’s criminal activity served as an intervening act interrupting the causal chain between Antigua’s actions and any effect on investors. See, e.g., Guirlando v. T.C. Ziraat Bankasi A.S., 602 F.3d 69, 79-80 (2d Cir. 2010); Zedan v. Kingdom of Saudi Arabia, 849 F.2d 1511, 1515 (D.C. Cir. 1988). Therefore, Plaintiffs’ first theory fails to satisfy the “direct effect” requirement.

Plaintiffs’ second theory—that Antigua’s failure to repay Stanford’s loans resulted in financial loss in the United States—similarly fails. Plaintiffs have offered some evidence indicating that at least two of the loans identified in the complaint may require payment in the United States. Additionally, at least one of the loan agreements indicates that the lender, Stanford, was located in the United States. But, the relationship between Antigua and Plaintiffs is too indirect to satisfy the “direct effect” requirement. Unlike Voest-Alpine and Weltover, the financial loss in this case was not directly felt by Plaintiffs, who are investors and customers of Stanford and the SIBL. The financial loss due to Antigua’s failure to repay the loans was most directly felt by Stanford who was the actual lender in the loan transactions.

Because we find that Antigua’s actions did not cause a “direct effect” in the United States, we need not consider the other elements of the commercial activity exception’s third clause. Accordingly, we reverse the district court’s holding that the commercial activity exception applies to the Frank suit and OSIC’s tort and TUFTA claims.

C. Waiver Exception

Under 28 U.S.C. § 1605(a)(1), a foreign state is not immune from suit when the “foreign state has waived its immunity either explicitly or by implication,” This case involves explicit waiver, which requires “an intentional and knowing relinquishment of [a] legal right.” Walker Int’l Holdings Ltd. v. Republic of Congo, 395 F.3d 229, 234 (5th Cir. 2004) (quoting Good v. Aramco Servs. Co., 971 F.Supp. 254, 258 (S.D. Tex. 1997)).

In responding to Antigua’s motion to dismiss, OSIC argued Antigua waived sovereign immunity in two loan agreements it entered into with Stanford. The agreement for the first of the loans, referred to as the “$40 Million Loan,” was provided to Antigua to “pay salaries and for other discretionary purposes.” The second loan, referred to as the “$31 Million Loan,” was provided to Antigua by Stanford to build a hospital. The district court found that provisions of both loan agreements explicitly waived sovereign immunity for OSIC’s contract claims based on either loan.

Although Antigua contests the merits of the district court’s waiver ruling, Antigua does not contest the application of the commercial activity exception to OSIC’s breach of contract claims. As such, OSIC’s breach of contract claims will proceed under the commercial activity exception regardless of whether we overturn the district court’s holding on the waiver exception.

Antigua also contests the scope of the district court’s waiver ruling and asks this Court to limit the district court’s ruling on the waiver exception to apply only to $71 million ($31 Million Loan + $40 Million Loan) in breach of -contract claims. But, the district court’s order itself already provides Antigua with the relief it seeks. While OSIC pleaded damages of “approximately $90 million” as a result of five different loans between Stanford and Antigua, the district court’s order only addressed the $31 Million Loan and the $40 Million loan. Therefore, the district court has already provided Antigua with the relief it seeks on appeal. As such, we decline to further address the scope of the district court’s waiver ruling.

IV. CONCLUSION

For the foregoing reasons, we REVERSE in part and REMAND for further proceedings consistent with this opinion.

      . The Frank suit was filed by several individuals as a class action, but, for clarity, we will refer solely to the first named individual, Joan Gale Frank, on behalf of the potential class.

      . For more information on the Stanford Ponzi scheme, see United States v. Stanford, 805 F.3d 557 (5th Cir. 2015), and Janvey v. Democratic Senatorial Campaign Comm., Inc., 712 F.3d 185 (5th Cir. 2013).

      . “[T]he collateral order doctrine accommodates a ‘small class’ of rulings, not concluding the litigation, but conclusively resolving ‘claims of right separable from, and collateral to, rights asserted' in the action."’ Will v. Hallock, 546 U.S. 345, 349, 126 S.Ct. 952, 163 L.Ed.2d 836 (2006) (quoting Behrens v. Pelletier, 516 U.S. 299, 305, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996)), These claims are "too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.” Id. (quoting Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949)).

      . In FSIA cases, jurisdictional discovery may be,permitted to resolve factual disputes crucial to determining whether a foreign state is immune from suit. Arriba Ltd. v. Petroleos Mexicanos, 962 F.2d 528, 534 (5th Cir. 1992). No such discovery was conducted in this case.

      . Determining if subject matter jurisdiction exists under the FSIA requires a court to answer two questions—first, whether a party is a "foreign state” to which the Act applies, and second, whether any exception to the presumption of foreign sovereign immunity applies under the circumstances. See Verlinden B.V. v. Cent. Bank of Nigeria, 461 U.S. 480, 488-89, 103 S.Ct. 1962, 76 L.Ed.2d 81 (1983). Although these together determine subject matter jurisdiction, it appears that the second part of the inquiry—regarding exceptions to foreign sovereign immunity—may be waived per the wording of the statute itself. See 28 U.S.C. § 1605(a)(1) (providing that a party can expressly or implicitly waive its immunity from the jurisdiction of the United States courts). As such, we see no reason why a party should not be permitted to waive the application of foreign sovereign immunity by failing to dispute the application of a particular exception under the Act.

      . In full, the commercial activity exception provides that:
      (a) "A foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case ...
      (2) in which the action is based upon a commercial activity carried on in the United States by the foreign state; or upon an act performed in the United States in connection with a commercial activity of the foreign state elsewhere; or upon an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States ...
      28 U.S.C. § 1605(a)(2).

      . In its brief, Antigua argues that “a specific act causing the direct effect must be legally significant to the cause of action.” While many other circuits have adopted this requirement, the Fifth Circuit has expressly rejected it. See Voest-Alpine Trading USA Corp. v. Bank of China, 142 F.3d 887, 894 (5th Cir. 1998).

      . In its brief, Antigua urges that Voest-Alpine is distinguishable because “the alleged commercial activities of Antigua are quite removed from (and unrelated to) the Appellees' financial losses.” This argument rests on a misunderstanding of the third clause of the commercial activity exception. Antigua appears to believe the "direct effect” element must relate to the "commercial activity.” Rather, the "direct effect” element requires that the conduct the suit is "based upon” have a direct effect in the United States. See 28 U.S.C. § 1605(a)(2).

      . This Court has previously held that the "direct effect” element was met in a transaction involving an "indirect” relationship. See Byrd, 182 F.3d at 391. In Byrd, the indirect relationship at issue was between an assignee to a lease and one of the original parties to the contract. Id. at 390-91. As this Court noted in Byrd, an assignee to a' lease stands in the place of the original party to the contract. Id. at 391. Therefore, the relationship between Plaintiffs and Antigua is distinguishable, as Plaintiffs do not have the same rights and remedies as Stanford to recover for Antigua's failure to pay back the loans. As such, because the financial loss resulting from Antigua's failure to repay the loans was not directly felt by Plaintiffs; the "direct effect” requirement is not met.

      . In its brief, OSIC also argues that the waiver exception applies to its TUFTA claims. But, as OSIC makes this argument for the first time on appeal,’it is waived. See Barrie v. Intervoice-Brite, Inc., 397 F.3d 249, 263 (5th Cir. 2005).


author: STEPHEN A. HIGGINSON, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee v. Jesus RODRIGUEZ-DE LA FUENTE, Defendant-Appellant
    No. 16-40043
    United States Court of Appeals, Fifth Circuit.
    Filed November 22, 2016

      John Richard Berry, Renata Ann Gowie, Assistant U.S. Attorneys, U.S. Attorney’s Office, Houston, TX, for Plaintiff-Appellee.
    James Patrick Whalen, Whalen Law Office, Frisco, TX, Victor Ricardo Ramirez, Brownsville, TX, for Defendant-Appellant.
    Before WIENER, CLEMENT, and HIGGINSON, Circuit Judges.
   STEPHEN A. HIGGINSON, Circuit Judge:

Without a written agreement, Jesus Rodriguez-De la Fuente (Rodriguez) pleaded guilty to conspiring to possess with intent to distribute 100 kilograms or more of marijuana. His presentence report (PSR) recommended an advisory guidelines range of 87 to 108 months’ imprisonment. At the initial sentencing hearing, the parties requested a continuance to allow Rodriguez another opportunity to debrief with the Government for the purpose of qualifying for the U.S.S.G. § 2Dl.l(b)(17) “safety-valve” reduction. The district court granted the continuance.

At the reconvened sentencing hearing, the district court heard testimony from the case agent, and sustained Rodriguez’s objection to the PSR’s recommended two-level increase for his role in the offense. The district court also sustained in part Rodriguez’s objection to the use of his proffered statements for sentencing purposes, but denied the objection to the extent the objected-to PSR paragraphs contained information that had been obtained beforehand from other individuals. These rulings resulted in a new advisory guidelines range of 70 to 87 months imprisonment.

After addressing the objections, the district court noted that without the role enhancement, Rodriguez might be eligible for the two-level “safety-valve” reduction pursuant to § 2Dl.l(b)(17) and § 501.2(a). The Government, however, stated that it was “not in a position to do a safety valve request to the Court right now,” explaining that Rodriguez’s debrief had been cut short because the case agent felt the defendant was not being forthcoming with regard to the involvement of family members. The ■ district court asked Rodriguez if he would like more time to possibly qualify for the reduction.

After conferring with his attorney, Rodriguez informed' the district court that he did not want another chance to debrief with the Government and sought, instead, to proceed with sentencing at that time. Rodriguez acknowledged that he -understood that this meant that he would not qualify for either a safety-valve reduction or a § 5K downward departure based on his interviews. Further, the district court directly asked Rodriguez to confirm he was “willing to forego any opportunity to debrief with the Government for any kind of further sentence reduction,” to which Rodriguez responded, “Yes.”

Rodriguez then moved “for a downward departure and a variance pursuant to [18 U.S.C. § ] 3553” based on his substantial assistance to the Government with regard to the criminal activities of persons other than his family members, his corroboration of information given by his codefendants, and his decision to plead guilty. The district court overruled that request, noting that Rodriguez played an “important role” in the conspiracy. Rodriguez then asked the district court to consider imposing a sentence at the five-year statutory minimum.

The district court imposed a within-guidelines sentence of 78 months imprisonment and four years of supervised release. Rodriguez filed a timely notice of appeal. He contends that his 78-month within-guidelines sentence is both procedurally and substantively unreasonable.

* # ⅝

Rodriguez first argues that the district court procedurally erred by not applying the two-level safety-valve reduction under § 2Dl.l(b)(17). He asserts that he satisfied all of the requirements of § 501.2(a) to qualify for such a reduction, including debriefing with the Government.

Rodriguez'did not object to the PSR’s failure to include a safety-valve reduction, he did not object to the Government’s statement that he was not complete in his debriefing, and he did not argue at sentencing that his debriefing was sufficient to meet the criterion of § 501.2(a)(5). To the contrary, he acknowledged that his debriefing did not qualify him for the safety-valve reduction. Thus this court’s review is'for plain error. See United States v. Gomez-Valle, 828 F.3d 324, 328 (5th Cir. 2016). To establish plain error, a defendant must show (1) “an error or defect ... that has not been intentionally relinquished or abandoned”; (2) that is “clear or obvious” and not “subject to reasonable dispute”; and (3) that affects his substantial rights. Puckett v. United States, 556 U.S. 129, 135, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009) (internal quotation marks, modification, and citation omitted). If he makes such a showing, this court has the discretion to correct the error but will do so only if it seriously affects the fairness, integrity, or public ..reputation of judicial proceedings. Id.

Rodriguez fails at the first step of the plain-error analysis: he waived any argument that the district court erred by not granting a safety-valve reduction. “Waiver is different from forfeiture. Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the intentional relinquishment or abandonment of a known right.” United States v. Olano, 507 U.S. 725, 733, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (internal quotation marks omitted). “Waiver extinguishes an error, taking it out of Federal Rule of Criminal Procedure 52(b),” United States v. Dodson, 288 F.3d 153, 160-61 (5th Cir. 2002), and thus “[w]aived errors are entirely unreviewable,” United States v. Musquiz, 45 F.3d 927, 931-32 (5th Cir. 1995). Under questioning from both his own counsel and the district court, Rodriguez confirmed that he wished to forgo the opportunity for an additional debriefing session with the Government and continue with the sentencing hearing. He acknowledged that he understood that-this decision meant that he would not qualify for either a safety-valve reduction or a § 5K downward departure. Accordingly, Rodriguez abandoned any right to a safety-valve reduction, and he cannot now argue that the district court erred in failing to apply it. See id.

Rodriguez also contends that his sentence is substantively unreasonablé. Rodriguez did not object at sentencing to his 78-month within-guidelines sentence as unreasonable. Thus, our review is for plain error. See United States v. Peltier, 505 F.3d 389, 392 (5th Cir. 2007). This court presutnes that a within-guidelines sentence is reasonable. United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006). Rodriguez has failed to demonstrate that the district court did not consider a sentencing factor that should have received significant weight, gave significant weight to a factor it should have discounted, or made a clear error of judgment when it balanced the relevant factors. See United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009). Thus, he has not rebutted the presumption that his sentence is substantively reasonable. See id.; Alonzo, 435 F.3d at 554-55. “Under the plain error standard, we will not disturb the sentence imposed merely because an appellant disagrees with the sentence and the balancing of factors conducted by the district court.” United States v. Powell, 732 F.3d 361, 382 (5th Cir. 2013).

AFFIRMED.

      . "If the defendant meets the criteria set forth in subdivisions (l)-(5) of subsection (a) of § 5C1.2 (Limitation on Applicability of Statutory Minimum Sentences in Certain Cases), decrease by 2 levels.” U.S. Sentencing Guidelines Manual § 2Dl.l(b)(17) (U.S. Sentencing Comm’n 2015).

      . U.S.S.G. § 5C1.2(a) sets forth five criteria. At issue in this case is the fifth criterion, § 5C1.2(a)(5), which provides:
      (5) not later than the time of the sentencing hearing, the defendant has truthfully provided to the Government all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan, but the fact that the defendant has no relevant or useful other information to provide or that the Government is already aware of the information shall not preclude a determination by the court that the defendant has complied with this requirement.


author: EDITH H. JONES, Circuit Judge:

text:
    Russell CAMPBELL, Plaintiff-Appellant v. LAMAR INSTITUTE OF TECHNOLOGY; Rebecca Cole, in her official capacity; Vivian Jefferson, in her official capacity; Doctor Betty Reynard, in her official capacity; Gwen Walden, in her official capacity, Defendants-Appellees
    No. 15-41294
    United States Court of Appeals, Fifth Circuit.
    Filed November 23, 2016

      Laurence Wade Watts, Watts & Company Lawyers, Limited, Missouri City, TX, for Plaintiff-Appellant.
    Susan Marie Watson, Assistant Attorney General, Benjamin Lindberg Dower, Office of the Attorney General, Kelli C. Fuqua, Office of the Attorney General, General Litigation Division, Austin, TX, for Defendants-Appellees.
    Before JONES, DENNIS, and PRADO, Circuit Judges.
   EDITH H. JONES, Circuit Judge:

In this appeal, plaintiff-appellant Russell Campbell challenges the district court’s dismissal of his Americans with Disabilities Act and Rehabilitation Act claims. Campbell’s claims are based on defendant-appel-lee Lamar Institute of Technology’s (LIT) failure to grant his requested disability accommodation. Eleventh Amendment immunity does not bar the Rehabilitation Act claim. Because LIT’s denial of Campbell’s accommodation request was reasonable, we AFFIRM the district court’s grant of summary judgment in favor of LIT.

BACKGROUND

Russell Campbell is a former student at Lamar Institute of Technology (LIT) where he earned an Associate’s Degree in Emergency Medical Services (EMS) and subsequently enrolled in LIT’s Respiratory Care Program. Due to an anoxic brain injury, Campbell struggles to retain and process information. While he was enrolled in the EMS program, LIT accommodated his learning disability by extending time for all of his exams and providing a laptop and a recorder to help with note-taking during class. In addition, on her own initiative, one of Campbell’s professors, Stephanie Lanoue, created a unique accommodation by permitting Campbell to take two exams: one at the same time as the rest of the class and a second- exam—which was different, but covered the same material— two weeks later. :

In response to his declining performance, Campbell met with Rebecca Cole, the Coordinator of Special Populations Programs, to request another accommodation. In addition to the accommodations he was already receiving, Campbell requested that, similar to his arrangement with Professor Lanoue, he be permitted to take two exams in each class: one at the same time as the other students and another two weeks later. Alternatively, he requested two extra weeks of study time after the other students had taken the exam (which would also require creation of a second exam to prevent cheating). In support of his request, he offered a doctor’s note, which stated that “he needs a week to two weeks to retain new information prior to testing over that material.”

Cole consulted with Dr. Jefferson, the Vice President of Student Services, and with other vice presidents of other Texas State University schools. Cole and Jefferson determined that Campbell’s requested additional accommodation would be unreasonable because it would give Campbell an unfair advantage over his classmates and would burden professors by requiring them to modify their teaching or testing schedules. They then met with Campbell and his wife to explain why they denied his request, but stated that he could ask individual instructors to accommodate him, as instructors have discretion to make accommodations beyond those required by the Special Populations office. During this meeting, Campbell’s wife inquired about withdrawal from LIT, stating that she and Campbell discussed this 'route as an option to preserve his GPA. Dr. Jefferson additionally told Campbell that if he was unhappy with this decision, he could contact Dr. Reynard, the Vice President of Academic Affairs.

Campbell met with one of his instructors, Gwen Walden, to ask whether she would nevertheless provide his requested accommodation and to discuss his health. She told him that she was seared for his well-being and that his bluish skin tone indicated dangerously low levels of oxygen, which can lead to fainting or death. Walden also told him that she would meet with other instructors to discuss his accommodation.

A few- days later, Campbell met with these instructors to consider an individualized plan for success. While instructors were standing, they informed him that they would only provide him with the originally approved accommodations and would not alter the testing schedule. Given that he had several days of absences and had missed many exams, Walden expressed concern about whether Campbell would be able to catch up in class. Campbell then expressed interest in dropping his courses to preserve his GPA as well as entering into cognitive therapy to improve his memory and address other health issues; Walden agreed that this would be a good plan. Campbell withdrew from LIT later that day.

Shortly thereafter, Campbell - filed a grievance to the Dean of Instruction based upon the denial of his requested accommodations. The Dean forwarded that email to Reynard. Less than a-month later, Reynard responded to the grievance and stated that LIT would provide reasonable accommodations supported by medical documentation and would waive tuition and fees for the next semester. Campbell rejected this offer. In his - deposition, Campbell stated that he would not return to LIT because he does not feel wanted.

Nine months later, Campbell filed this lawsuit, contending that LIT’s-denial of his requested accommodation violated Title II of the Americans with Disabilities Act (ADA) and § 504 of the Rehabilitation Act. Campbell sued LIT, as well as Cole, Jefferson, Walden, and Reynard (collectively, “defendants”) in their official capacities, seeking compensatory damages and declaratory and injunctive relief.

' The district court granted the defendants’ motion for summary judgment. First, the district court held that Campbell’s claim for damages was moot because LIT granted his accommodation nine months before the lawsuit was initiated through Reynard’s response letter to Campbell’s grievance. Second, the district court held that Campbell lacked standing to seek injunctive or declaratory relief because he could not demonstrate an impending injury In fact. Finally, the district court alternatively held that Campbell’s damages claim was barred by Eleventh Amendment sovereign immunity because his ADA claim was moot and because he had not stated a claim for relief under the Fourteenth Amendment. The court also noted that Campbell would not be entitled to prospective injunctive relief under Ex Parte Young because he lacked standing to obtain such relief. Campbell timely appealed.

STANDARD OF REVIEW

The court reviews a district court’s grant of summary judgment de novo. Kemp v. Holder, 610 F.3d 231, 234 (5th Cir. 2010). A party is entitled to summary judgment if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Id. (citing Fed. R. Civ. P. 56(a)). “A genuine issue of material fact exists if a reasonable jury could enter a verdict for the non-moving party.” Id. (citation omitted). The court views the facts and evidence in the light most favorable to the non-moving party. Id. The court may affirm a grant of summary judgment on any grounds supported by the record and presented to the district court. Cuadra v. Hous. Indep. Sch. Dist., 626 F.3d 808, 812 (6th Cir. 2010) (citation and quotation marks omitted).

DISCUSSION

A. Sovereign Immunity

The district court erred in concluding that LIT is entitled to sovereign immunity. Eleventh Amendment sovereign immunity does not bar Campbell’s Rehabilitation Act claim for money damages.

State entities that accept federal funding knowingly and voluntarily waive their sovereign immunity to suit under § 504 of the Rehabilitation Act. Pace v. Bogalusa City Sch. Bd., 403 F.3d 272, 274 (5th Cir. 2005) (en banc). The parties do not dispute that LIT receives federal funding. Sovereign immunity therefore does not bar Campbell’s suit for damages under § 504 of the Rehabilitation Act. 42 U.S.C. § 2000d-7. Accordingly, we pretermit any discussion of whether Congress abrogated LIT’s sovereign immunity through Title II of the ADA “because the rights and remedies under either are the same for purposes of this case.” See Bennett-Nelson v. La. Bd. of Regents, 431 F.3d 448, 455 (5th Cir. 2005) (declining to reach the issue of abrogation under Title II of the ADA after concluding that sovereign immunity did not bar the plaintiffs’ claim under § 504). Why the Texas Attorney General, representing the appellees here, chose' to pursue the question of Eleventh Amendment’abrogation under Title II of the ADA is a mystery; the state even failed to cite our en banc decision in Pace.

Because the parties addressed the reasonable accommodation claims on the merits to the district court and the parties have briefed these claims on appeal, we proceed to address the claims.

B. Duty to Accommodate

a. Mootness

Campbell’s claim for compensatory damages is not moot. A case is dismissed as moot if “an intervening circumstance deprives the plaintiff of a ‘personal stake in the outcome of the lawsuit,’ at any point in the litigation.” Campbell-Ewald Co. v. Gomez, — U.S. —, 136 S.Ct. 663, 669, 193 L.Ed.2d 571 (2016). To demonstrate this ongoing personal stake in the litigation, the plaintiff must show that “he has sustained or is immediately in danger of sustaining some direct injury.” Los Angeles v. Lyons, 461 U.S. 95, 102, 103 S.Ct. 1660, 1665, 75 L.Ed.2d 675 (1983) (internal quotations omitted). Campbell alleges that he sustained a direct injury from LIT’s past intentional discrimination. Thus, whether or not the President’s letter remedies Campbell’s injury prospectively does not moot Campbell’s claim for retrospecr tive relief for the period in which LIT denied his accommodation request. To the extent that Campbell seeks to recover compensatory damages for this past action, his claim is not moot.

b. Discrimination under the Rehabilitation Act

Campbell asserts discrimination under the Rehabilitation Act. The ADA’s language generally tracks the language of the Rehabilitation ■ Act and expressly states that the “remedies, procedures and rights” of the Rehabilitation Act are obtainable under the ADA. 42 U.S.C. § 12133 (1995); Delano-Pyle v. Victoria Cty., Tex., 302 F.3d 567, 574 (5th Cir. 2002). As such, the “^Jurisprudence interpreting either section is applicable to both.... ” Delano-Pyle, 302 F.3d at 574 (internal quotations and citations omitted).

As relevant in this case, the Rehabilitation Act discrimination claim turns on whether the institution discriminated against the student based on his disability. Argenyi v. Creighton Univ., 703 F.3d 441, 447 (8th Cir. 2013). Discrimination includes a failure to make reasonable accommodations. Feist v. La. Dep’t of Justice, Office of the Attorney Gen., 730 F.3d 450, 452 (5th Cir. 2013); 42 U.S.C. § 12132; 29 U.S.C. § 794 (a). However, an institution is not required to “lower or [ ] effect substantial modifications of standards to accommodate a handicapped person,” if its standards are reasonable. Se. Cmty. Coll. v. Davis, 442 U.S. 397, 423, 99 S.Ct. 2361, 2377, 60 L.Ed.2d 980 (1979); see also 34 C.F.R. § 104.44(a) (“Academic requirements that the recipient can demonstrate are essential to the instruction being pursued by such student or to any directly related licensing requirement will not b¿ regarded as discriminatory.... Modifications may include changes in the length of time permitted for the completion of degree requirements, substitution of specific courses required for the completion of degree requirements, and adaptation of the manner in which specific courses are conducted.”). A disabled student does not have a right to his accommodation of preference. E.E.O.C. v. Agro Distribution, LLC, 555 F.3d 462, 471 (5th Cir. 2009).

A student may only recover compensatory damages upon a showing of intentional discrimination. Delano-Pyle, 302 F.3d at 574. When the record is “devoid of evidence of malice, ill-will, or efforts ... to impede” a disabled student’s progress, summary judgment must be granted in favor of the university. Id. In such a case, this court must defer to the university’s academic decision not to alter its program. Id.-, see also Halpern v. Wake Forest Univ. Health Scis., 669 F.3d 454, 463 (4th Cir. 2012) (joining eight other circuits that have “extended some level of deference to schools’ professional judgments regarding students’ qualifications when addressing disability discrimination claims.”).

The parties here dispute whether LIT failed to act reasonably when it denied Campbell’s request for another accommodation. Campbell argues that his accommodation request was reasonable because it would not require fundamentally changing the Respiratory Care Program and it was supported by medical documentation. Campbell further argues that LIT was motivated by intentional discrimination in denying his request.

Upon a full review of the summary judgment evidence, we afford deference to LIT’s decision because Campbell has not demonstrated that LIT intentionally discriminated against him. McGregor v. Louisiana State Univ. Bd. of Sup’rs, 3 F.3d 850, 859 (5th Cir. 1993). Each of the six alleged statements and actions recited by Campbell is either not supported by the record or could not plausibly be construed by a reasonable fact finder as an example of intentional discrimination.

First, Campbell alleges that the instructors expressed “ignorant opinions that the disabled are simply unequal to other students.” Campbell provides no supporting record citations, and a review of the summary judgment evidence does not disclose any such statements. Indeed, the only record evidence reveals just the opposite: each of the instructors categorically denied making such statements. Second, Cole’s belief that the requested accommodation might give Campbell an “unfair advantage” over other students- does not qualify as intentional discrimination, as this concern would apply to any student—disabled or not—requesting such an accommodation. Third, Campbell alleges that if the accommodation were granted, instructors would retaliate against him. But Campbell does not point to any record evidence to support this allegation. The only summary judgment evidence that even hints at such a statement is contained in Campbell’s own verified statement that “Dr. Jefferson said that she could make the instructors give me the accommodation but that they didn’t want to and that it wouldn’t work out.” This does not imply retaliation or discriminatory animus. Rather, it reflects the difficulties LIT perceived in providing Campbell’s requested accommodation, which might increase the workload of teachers and require the instructors to alter their schedules outside of the academic calendar. Fourth, Walden’s comment about Campbell’s skin color is an expression of her concern for his health, because his respiratory illness affects his oxygen intake and makes his face appear bluish. No reasonable fact finder could derive discriminatory intent from this statement. Fifth, an instructor’s comments regarding Campbell’s drop in class standing and his tardy submission of doctor’s notes are appropriate for a meeting concerning his academic progress. Sixth, the fact an instructor stood during a meeting with Campbell does not constitute discriminatory bias.

An institution is not duty bound to acquiesce in and implement every accommodation a disabled student demands. Here, the record indicates that Campbell’s request, was considered at multiple levels of the institution, from the individual faculty members up to the school’s President. Cole additionally consulted Vice Presidents of Student Services at other TSU institutions for their opinions on the reasonableness of Campbell’s requested accommodations, and the spokesmen unanimously responded that they would not grant the requested accommodation. Moreover, the reasons LIT provided for initially denying Campbell’s accommodation request are serious: (1) Campbell might obtain an unfair advantage over other students by having an extra two weeks to study; (2) instructors would be burdened by having to create two versions of an exam; (3) instructors may have to schedule Campbell’s exams outside of the academic calendar; and (4) Campbell’s request could require instructors to lower the academic standards of the class. Such concerns relate to whether Campbell’s request is a “reasonable deviation from the [institution’s] usual requirements ... without sacrificing the integrity of the ... program.” McGregor, 3 F.3d at 858; cf. Dean v. Univ. at Buffalo Sch. Of Med. & Biomedical Scis., 804 F.3d 178, 191 (2d. Cir. 2015) (declining to afford deference where the record lacked evidence indicating that the school “diligently assessed whether the alteration would allow Dean the opportunity to continue in the M.D. program without imposing undue financial and administrative burdens on UBMED or requiring a fundamental alteration to the academic caliber of its offerings”). LIT’s objections legitimately relate to the impact the requested accommodation would have on the program, and are not “academic decisions [ ] disguisflng] truly discriminatory requirements,” Zukle v. Regents of Univ. of Cal., 166 F.3d 1041, 1048 (9th Cir. 1999).

It is also notable that Cole and Jefferson told Campbell they would not require his instructors to provide him with this extra accommodation, but Campbell could ask each instructor individually to do so. Finally, Campbell’s request was for an additional accommodation—LIT had accommodated Campbell’s . disability with extra exam time and provided Campbell with a laptop and a recording device for lectures. Taken together, these accommodations are reasonable; Campbell is not entitled to his preferred accommodation. The summary judgment evidence thus does not reflect efforts of LIT to impede Campbell’s progress. McGregor, 3 F.3d at 859. Campbell therefore has not created a genuine issue of material fact supporting his intentional disability discrimination claim.

C. Standing to Seek Declaratory and Injunctive Relief

Even if he had adduced a triable fact issue on discrimination, Campbell cannot recover injunctive or declaratory relief from LIT because he lacks standing. Campbell seeks to recover injunctive and declaratory relief to prevent LIT from denying reasonable accommodations in the future.

To establish Article III standing, a plaintiff must show: (1) an injury in fact that is concrete, particularized, and imminent, and is not conjectural or hypothetical; (2) a causal connection demonstrating that the injury is fairly traceable to the defendant’s challenged actions; and (3) that it is likely—not simply speculative— that a favorable decision will redress the injury. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 2137, 119 L.Ed.2d 351 (1992) (citations and quotation marks omitted).

Campbell’s alleged prospective injury is entirely speculative, hypothetical, and lacks imminence, as Campbell withdrew from LIT and has repeatedly said that he will not return. The likelihood of LIT’s denying Campbell reasonable, disability accommodations in the future is therefore too remote to state a cognizable injury in fact. See Lyons, 461 U.S. at 105-10, 103 S.Ct. at .1667-69 (holding that Lyons lacked standing to seek injunctive relief because there was no evidence that he faced a “real and immediate threat of again. being illegally choked” by the police); Armstrong v. Turner Indus., Inc., 141 F.3d 554, 563 (5th Cir. 1998) (noting that the plaintiff “has alleged only a single, past statutory violation and does not assert any likelihood that he will be subjected to a similar violation in the future.”). Because injunctive or declaratory relief against LIT would not benefit Campbell, a non-student, any possibility of future injury is not re-dressable by the court and he lacks standing to assert a claim for equitable relief. See Armstrong, 141 F.3d at 563 (noting that “for the same reason he lacks standing to procure injunctive relief he likewise has no standing to seek declaratory relief.”).

CONCLUSION

For the foregoing reasons, the judgment of the district court granting the defendants’ motion for summary judgment is AFFIRMED.

      . The Rehabilitation Act requires a showing that the student is a disabled, qualified individual and that the institution receives federal funds. 29 U.S.C. § 794 (a).

      . The Appendix to the ADA regulation provides: “The accommodation, however, does not have to be the 'best' accommodation possible, so long as it is sufficient to meet the job-related needs of the individual being accommodated. ... [T]he employer providing the accommodation has the ultimate discretion to choose between effective accommodations, and may choose the less expensive accommodation or the accommodation that is easier for it to provide,” 29 C.F.R. pt. 1630, App., § 1630.9.

      . Indeed, Campbell's own attorney made a similar statement concerning the color of Campbell’s ear during Campbell’s deposition.

      . This is a disingenuous inference. In Campbell’s own words, the instructor stood "to be eyelevel” with him because she "ain’t no taller than a dachshund.”

      . Campbell also asserts novel theories of disability discrimination: "constructive dismissal” from an educational institution and "educational harassment.” The district court correctly dismissed these claims as not legally cognizable.

      . Campbell also curiously states that he seeks to recover declaratory relief specifying the rights of other students with disabilities at LIT. This lawsuit is not a class action, however, and Campbell has not attempted to show that he satisfies the requirements for third-party standing, which would require demonstration that he has a close relationship with the third parties and that third parties are hindered from asserting their own rights. Kowalski v. Tesmer, 543 U.S. 125, 130, 125 S.Ct. 564, 567, 160 L.Ed.2d 519 (2004).