author: GREGG COSTA, Circuit Judge:

text:
    Leann STARNES, Plaintiff-Appellant v. Michael G. WALLACE; Michael A. Rich; Donna Rich; Sherri Cunningham; Donna Marez; Daybreak Partners, L.L.C.; Daybreak Venture, L.L.C.; Daybreak Healthcare, Incorporated; Daybreak Therapy, L.L.C.; Hea Management Group, Incorporated; Cold Spring Holdings, L.L.C.; Canyon River Holdings, L.L.C.; Denton River Holdings, L.L.C.; Seven Falls Holdings, L.L.C.; Red Pine Holdings, L.L.C., Defendants-Appellees
    No. 15-41341
    United States Court of Appeals, Fifth Circuit.
    Filed February 24, 2017

      Hartson Dustin Fillmore, III, Charles William Fillmore, Attorney, Fillmore Law Firm, L.L.P., Fort Worth, TX, for Plaintiff-Appellant.
    Scott M. McElhaney, Arthur Moritz Meyer, Jr., Esq.; Jackson Walker, L.L.P., Dallas, TX, James David Apple, Apple & Fink, L.L.P., Coppell, TX, for Defendants-Appellees.
    Before DAVIS, SOUTHWICK, and COSTA, Circuit Judges.
   GREGG COSTA, Circuit Judge:

The Fair Labor Standards Act (FLSA), passed during the New Deal to set a federal minimum wage for certain workers, is one of the earliest federal statutes to contain the antiretaliation provisions that in the years since have become common in employment laws (the contemporaneous National Labor Relations Act is another early example). The plaintiff brought this case contending that the antiretaliation provision was violated when she was terminated after raising concerns about whether a coworker’s pay complied with the FLSA. We decide whether there is sufficient evidence in support of her claim to reach a jury. We also consider whether a Texas statute dealing with health facilities prohibits retaliation for reporting FLSA violations.

I.

LeAnn Starnes worked at Daybreak Ventures, L.L.C., a company that employs thousands of individuals to work at nursing homes in Texas. Starnes was a Risk Manager in the corporate office, which involved investigating work-related injuries and reviewing any liability for the company, providing information to the Texas Workforce Commission, reviewing and denying work-related injury claims, working on the opposition statements for .EEOC discrimination cases, and attending mediation for lawsuits when they involved the Risk Management Department.

Sometime in late October or early November of 2010, coworker Ludy Estrada complained to Starnes that Daybreak was not paying Estrada’s husband Vincent, a maintenance worker, for his travel time or overtime. Although Starnes reviewed the information Ludy provided, she referred Ludy to Andy Shelton who was the Director of Human Resources because Starnes believed FLSA claims were handled exclusively by his department. Ludy refused to speak to Shelton, expressing concern that she might lose her job if she reported the violation. Starnes then met with Shelton herself on Ludy’s behalf. During the meeting, which took place just a few days after Ludy had approached Starnes, Starnes told Shelton that Daybreak was “violating the law by the way [it was] paying Vincent.”

Before New Year’s, Daybreak President Mike Rich pulled Starnes aside to discuss Vincent’s situation. Starnes again reiterated that “it looked to [her] like Daybreak was breaking the law” by the way it was paying Vincent. Rich assured her that they would resolve the situation.

The sequence of the events that followed is disputed, but around this time, Daybreak began requiring each employee to sign a job description. Starnes’s own “Job Description” was dated October, 25, 2010, but she did not sign it until March 11, 2011. According to this document, Starnes was required to report “all allegations and findings related to violations of Federal and State law including Anti-Kickback and fraud.” This differs from an earlier “Job Analysis” of Starnes’s position, which appears to be written by Starnes herself and describes the amount of time she spent on various duties, none of which involved reporting violations of law.

Daybreak also began reclassifying main-, tenance workers like Vincent Estrada from salaried employees to hourly ones who are covered by the FLSA. Despite the reclassification, Vincent’s claim for back-pay remained unresolved for most of 2011. Moreover, Daybreak was still not paying Vincent for his travel time.

In November 2011, Ludy became frustrated that Vincent’s claim still had not been resolved. She went to Shelton, the HR Director, and demanded that Vincent be paid. Shelton asked her to put the request in writing so that it could be presented to Rich. The Estradas ultimately requested $68,713.38 in owed wages, and Shelton told Ludy that he would relay the request to Rich. On December 9, 2011, Rich called Ludy into his office to talk about the amount of Vincent’s request. Starnes, who had not had any involvement with the pay dispute in the year since she had reported it to HR and discussed it with Rich, was not present. Yet Rich indicated during the negotiations that he believed that Starnes “was to blame” for the problems with Vincent’s wage claim. The discussion between Rich and Ludy became “heated” because they disagreed as to whether the law required payment for Vincent’s travel time. The conversation was so loud that Starnes could overhear Rich’s angry raised voice from her own office. After Ludy became visibly upset during the meeting, Rich agreed to resolve Vincent’s claim and assured Ludy that she would not lose her job. The last week of 2011, Daybreak finally settled its dispute with Vincent for $40,000.

Just ten days later, on January 6, 2012, Daybreak laid off five employees, including Starnes and Ludy, purportedly due to financial difficulties related to cuts in Medicaid reimbursement rates. Yet one of these employees, Rich’s son, had already accepted another position with a different company before being “let go.” Two other employees were soon rehired in different positions within Daybreak.

The two who were left without a job, Starnes and Ludy, then filed this lawsuit asserting claims for retaliation under both the FLSA and section 260A.014(b) of the Texas Health and Safety Code, which regulates nursing homes. Daybreak filed a 12(b)(6) motion that sought dismissal of the state law claim and also sought a ruling that damages for emotional distress and punitive damages are not available under the FLSA retaliation provision. The district court granted that motion in full.

After discovery, Daybreak moved for summary judgment on liability under the FLSA. The district court denied the motion with respect to Ludy. It found that she had established a prima facie case of retaliation and that a jury could conclude that the “cost cutting” justification for her termination was pretextual primarily because she and Starnes were the only employees who wanted to stay, but were “permanently let go” as a result of the supposed downsizing. The district court reached a different result as to Starnes, finding that she could not establish a pri-ma facie case for two reasons. First, it concluded she did not engage in protected activity because she did not act outside her job duties in reporting the wage dispute. Second, it concluded that she could not establish causation because more than a year elapsed between her reporting activity and termination.

Ludy settled with Daybreak before trial. Starnes timely appealed all of the district court’s rulings except the one about punitive damages.

II.

We begin with our de novo review of the district court’s summary judgment ruling on the FLSA retaliation claim, viewing the evidence “in the light most favorable to the non-moving party.” Gray v. Powers, 673 F.3d 352, 354 (5th Cir. 2012). We will affirm summary judgment only “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

As with most federal employment statutes that require a showing of improper motive for which direct evidence is usually lacking, courts evaluate FLSA retaliation claims relying on circumstantial evidence under the evidentiary framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Hagan v. EchoStar Satellite, L.L.C., 529 F.3d 617, 624 (5th Cir. 2008). The first question is whether Starnes has made a prima facie showing of: (1) participation in a protected activity under the FLSA; (2) an adverse employment action; and (3) a causal link between the activity and the adverse action. Id. If she has, the burden then shifts to Daybreak to articulate a legitimate, nonretaliatory reason for the adverse action. Id. Once it has done so, then the burden shifts back to Starnes to identify evidence from which a jury could conclude that Daybreak’s proffered reason is a pretext for retaliation. Id.

A.

As to Starnes’s prima facie case, the parties do not dispute that her termination was an adverse action, but they disagree about the protected activity and causal link elements.

To engage in protected activity, the plaintiff must make a “complaint.” Hagan, 529 F.3d at 626. We have held that:

In order for an employee’s communication to constitute a “complaint,” the “employer must have fair notice that an employee is making a complaint that could subject the employer to a later claim of retaliation” and the “complaint must be sufficiently clear and detailed for a reasonable employer to understand it, in light of both content and context, as an assertion of rights protected by the [FLSA] and a call for their protection.”

Lasater v. Tex. A & M Univ.-Commerce, 495 Fed.Appx. 458, 461 (5th Cir. 2012) (per curiam) (quoting Kasten v. Saint-Gobain Performance Plastics Corp., 563 U.S. 1, 131 S.Ct. 1325, 1334-35, 179 L.Ed.2d 379 (2011)). We have also explained that such an assertion of rights requires that an employee step outside of his normal job role and assert a right adverse to the company. Hagan, 529 F.3d at 627. Because a manager’s job duties often include “being mindful of the needs and concerns of both sides and appropriately expressing them” when it comes to pay issues, merely voicing such concerns does not constitute sufficient notice that the manager is asserting rights. Id. at 628.

We thus refused to find that a manager of satellite television technicians acted adversely to his employer when he asked an HR Manager to speak with technicians who had raised questions about the legality of new pay practices. See Hagan, 529 F.3d at 629-30. The Hagan manager never advocated on behalf of his or other technician’s statutory rights. He did not even think there was any unlawful policy and was so uninterested in the matter that he did not attend the meeting HR had with the technicians or otherwise follow up with HR to determine whether the change was, in fact, legal. Id. at 629-30.

Starnes’s communications went much further than that of the field service manager in Hagan. She did not merely relay concerns of others that Daybreak’s actions might be illegal; instead she asserted on at least two separate occasions— first to HR and then in response to the company president — that Daybreak was “violating the law” by not paying Vincent for travel time or overtime.

Despite Starnes unequivocally expressing the view that her employer was violating the law, the district court concluded that her conduct did not involve stepping outside her role as Risk Manager. It relied on the Job Description dated October 25, 2010, which states that Starnes investigates and reports to President Rich all violations of federal and state law, including FLSA violations. But factual disputes surrounding whether the Job Description applied at the time Starnes made her report to HR make it an inappropriate vehicle to warrant judgment as a matter of law. Starnes stated that she alerted Shelton to Vincent’s wage issue as early as late October 2010; thus, her report may have been made before Daybreak even created the Job Description. There is no evidence about when the new description was delivered to Starnes, and Starnes did not even sign it until March 2011 — several months after her initial report. Daybreak points out that she did not object to the description, but that does not rule out that it contained new responsibilities. Indeed, the earlier created Job Analysis does not mention reporting violations of law.

Other evidence reinforces the view that there is a genuine dispute about whether reporting FLSA violations was part of Starnes’s duties. Aside from the Vincent Estrada situation, Starnes never dealt with a pay issue during her tenure as Risk Manager. Her primary responsibility involved insurance and workers compensation claims. And Starnes’s conduct in handling the Vincent Estrada issue corroborates her testimony about her responsibilities. She did not consider the FLSA dispute to be part of her duties, first telling Ludy to take the issue to HR. When Ludy was afraid to do so, Starnes agreed to talk with HR. She did not take the issue directly to President Rich, which is what the Job Description says she should do with compliance issues within her bailiwick. Starnes’s conduct thus reflects what is typically the case in sizable companies: a separate HR department handles pay issues.

Unlike the dispute in this case about whether Starnes had any responsibility for pay issues, the plaintiffs whose cases were dismissed at the summary judgment stage because they were acting in a “managerial role” indisputably dealt with pay issues. See Lasater, 495 Fed.Appx. at 459, 462 (Director of the Office of Financial Aid and Scholarships “had the obligation and the discretion and authority to keep the accumulated comp hours of her employees!, which were awarded as a substitute for overtime pay] below the prescribed level” to ensure compliance with the FLSA and university policy); McKenzie v. Renberg’s Inc., 94 F.3d 1478, 1481 (10th Cir. 1996) (Personnel Director responsible for “monitoring compliance with,” among other employment issues, “wage and hour laws”); Claudio-Gotay v. Becton Dickinson Caribe, Ltd., 375 F.3d 99, 101 (1st Cir. 2004) (engineer who had to approve security guard’s “invoices for payment”); Miller v. Metrocare Servs., 2015 WL 477233, at *1, *6 (N.D. Tex. Feb. 5, 2015) (HR Director responsible for ensuring compliance with employment laws).

Another feature of those cases helps further delineate the line between the unprotected act of “assist[ing] the company in complying with its obligations under the FLSA” and the protected act of advocating for a coworker. Hagan, 529 F.3d at 627. All of the cases just cited involved the plaintiff raising concerns about the classification of all workers or entire categories of workers. See McKenzie, 94 F.3d at 1481, 1486-87 (Director complained about the company’s failure to pay overtime to employees); Claudio-Gotay, 375 F.3d at 102 (plaintiff raised concerns about the guards not being paid overtime); Miller, 2015 WL 477233, at *1 (HR Director reported that the case management employees had been .misclassified as exempt from the FLSA). That desire for full compliance with the law for all workers is what one would expect from a manager “concerned with protecting” his employer. Claudio-Gotay, 375 F.3d at 102. In contrast, Starnes’s concern was only about Vincent — even though other maintenance workers were subject to the same pay policies (thus the reclassification) — and is thus more akin to “asserting rights adverse” to the company, id. by advocating “on behalf of [another’s] statutory rights.” Hagan, 529 F.3d at 630.

We thus conclude that there is a factual dispute about whether Starnes was stepping outside her ordinary role as Risk Manager and giving fair notice to Daybreak that she was asserting rights adverse to it.

B.

That brings us to the second reason why the district court found Starnes could not establish a prima facie case: its conclusion that she could not establish a causal link because of significant passage of time— more than a year — between her protected activity and termination. That ruling is consistent with the closeness our case law requires when proximity between the protected activity and adverse action alone is being used to establish causation. See, e.g., Raggs v. Miss. Power & Light Co., 278 F.3d 463, 471-72 (5th Cir. 2002) (holding that temporal proximity alone furnished insufficient evidence of causation to withstand motion for judgment as a matter of law when five months had elapsed). That timing is often all that plaintiffs can point to in trying to establish causation.

But looking solely at temporal proximity in this case, when nearly identical evidence of pretext was found sufficient to allow Ludy to establish a fact issue on the ultimate question of causation, is the “rigid, mechanized, or ritualistic” application of McDonnell Douglas that the Supreme Court has warned against. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002) (quoting Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 57 L.Ed.2d 957 (1978)); see also Gee v. Principi, 289 F.3d 342, 346 n.3 (5th Cir. 2002) (explaining that temporal proximity is “part of [the] analysis, but not in itself conclusive” in establishing the causal link for retaliation (quoting Shirley v. Chrysler First, Inc., 970 F.2d 39, 44 (5th Cir.1992))). Under that framework, the causation requirement for the prima face case is considered at the initial McDonell Douglas stage, with pretext evidence being evaluated at the separate final stage. But the big picture is that both the “causal link” of the prima facie case and the pretext inquiry are aimed at the ultimate question in a retaliation case: “whether the defendant discriminated against the plaintiff because the plaintiff engaged in” protected conduct. Long v. Eastfield Coll., 88 F.3d 300, 305 n.4 (5th Cir. 1996); see also McCoy v. City of Shreveport, 492 F.3d 551, 562 (5th Cir. 2007) (describing the ultimate inquiry as whether there is sufficient “evidence from which the jury may infer that retaliation was the real motive”). The difference is that the prima facie inquiry is the “much less stringent” causation standard. Long, 88 F.3d at 305 n.4. We thus recently recognized in the analogous burden-shifting framework of First Amendment retaliation claims that when plaintiffs had produced pretext evidence indicating that their employer’s reason for terminating them was false, they had necessarily satisfied the causation element of the prima facie case. See Bosque v. Starr Cnty., Tex., 630 Fed.Appx. 300, 304-05 (5th Cir. 2015) (explaining that “attempting to cabin pretext evidence into the third prong is contrary to other precedent and commonsense”).

Likewise here, the evidence that the district court found could allow a finding of pretext for Ludy Estrada — that only she and Starnes, the two individuals complaining about the FLSA violations, were permanently let go — also helps establish the “less stringent” causation element of the prima facie case. If a jury could disbelieve that Daybreak fired Ludy and Starnes for cost-cutting reasons, then that would be proof of a retaliatory motive. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (“In appropriate circumstances, the trier of fact can reasonably infer from the falsity of the explanation that the employer is dissembling to cover up a discriminatory purpose.”).

And even when it comes to timing, we have recognized that the prima facie case does not rigidly consider only one form of temporal connection. See Gee, 289 F.3d at 347 (holding that highly critical comments made about plaintiff by her former harasser and others with knowledge of the harassment at selection meeting — over two years after her harassment complaint— indicated a causal connection between her nonselection for the position and her protected activity when meeting and nonselection occurred about a month apart). Although Starnes was terminated more than a year after she engaged in protected activity, the termination occurred just ten days after Daybreak paid $40,000 to resolve the problem Starnes raised. The time when funds have gone out the door may be when the retaliatory impulse is strongest. The termination also came within a month of the meeting between Rich and Ludy, in which Rich heatedly blamed Starnes for the dispute over Vincent’s pay.

We thus find that Starnes has established the causal link required to establish a prima facie case.

C.

For many of the reasons just discussed, the same evidence that supported the district court’s pretext ruling as to Ludy Estrada also establishes sufficient evidence from which a jury could conclude that Daybreak’s reason for firing Starnes (financial problems related to Medicaid reimbursement cuts) was a pretext for retaliation. See Hagan, 529 F.3d at 624. Most compelling to the district court was that Starnes and Ludy — the two employees who reported the alleged FLSA violation — were the only employees permanently let go who wanted to stay at Daybreak. Daybreak counters by arguing that it never filled either woman’s eliminated position. That may be so, and a jury may agree that cost-cutting was thé true motivation. But a reasonable juror could also find to the contrary, especially given that the amounts paid for bonuses in 2011 and the partners’ repeated assurances as late as the fall of 2011 that there would be no need for layoffs paint a different financial picture.

III.

We next consider the district court’s decision to grant a Rule 12(b)(6) motion to dismiss the request in Starnes’s complaint for emotional damages if she were to prove a violation of the FLSA. Until recently, we had never directly confronted this question, see Adams v. Cedar Hill Indep. Sch. Dist., 2014 WL 66488, at *6 (N.D. Tex., Jan. 8, 2014) (noting that “[t]he Fifth.Circuit has not squarely addressed” this question), and district courts in our circuit were split on the answer. While this appeal was pending, however, an opinion issued holding that a retaliation victim- may recover emotional distress damages under the FLSA. Pineda v. JTCH Apartments, L.L.C., 843 F.3d 1062 (5th Cir. 2016). In accord with Pineda, we conclude that the district court erred by dismissing Starnes’s request for emotional damages.

IY.

In its motion to dismiss, Daybreak also challenged the sufficiency of the claim Starnes asserts under section 260A.014(b) of the Texas Health and Safety Code. That section is located in the subtitle dealing with “Licensing of Health Facilities” and the chapter entitled “Reports of Abuse, Neglect, and Exploitation of Residents of Certain Facilities.” Tex. Health & Safety Code ch. 260A. It provides a cause of action to employees who experience:

retaliation] ... for reporting to the employee’s supervisor, an administrator of the facility, a state regulatory agency, or a law enforcement agency a violation of law, including a violation of Chapter 242 or 247 or a rule adopted under Chapter 242 or 247, or for initiating or cooperating in any investigation or proceeding of a governmental entity relating to care, services, or conditions at the facility.

Id. § 260A.014(b).

We agree with the district court’s conclusion that “a violation of law” in this statute is limited to violations related to abuse, neglect, or exploitation of residents at a covered facility and thus does not include whistleblowing on pay policies. The subtitle and chapter title support that view. See Tex. Gov’t Code § 311.023 (“In construing a statute, whether or not the statute is considered ambiguous on its face, a court may consider among other matters the ... title (caption).... ”). So do the surrounding provisions in the chapter which address, among other issues related to health facilities, requirements and immunities for reporting acts that might impair the welfare of residents and criminal penalties for failing to make such reports. Id. §§ 260A.001-017; Black v. Am. Bankers Ins. Co., 478 S.W.2d 434, 437 (Tex. 1972) (noting that “[i]t is a cardinal rule of statutory construction that all sections, words and phrases of an entire act must be considered together ... and [that] one provision will not be given a meaning out of harmony or inconsistent with other provisions, although it might be susceptible of such construction if standing alone.”). We recognize, moreover, that it would make little sense for the legislature to carve out special protection for wage-and-hour whis-tleblowers in nursing homes, but not employees of other industries. Tex. Gov’t Code § 311.023 (allowing courts to consider the “consequences of a particular construction” in construing a statute). For these reasons, it is not surprising that not a single Texas court has adopted Starnes’s broad reading of the statute. McCaig v. Wells Fargo Bank (Texas), N.A., 788 F.3d 463, 474 (5th Cir. 2015) (“[0]ur duty is to apply existing state law, not create it.”). We thus affirm the holding that the state statute does not provide protection to employees reporting FLSA violations.

We AFFIRM the district court’s dismissal of Starnes’s claim for relief under Texas Health and Safety Code section 260A.014, but we REVERSE the judgment with respect to Starnes’s FLSA retaliation claim and her request for emotional damages. The case is REMANDED.

      . Because of the summary judgment stance, this recitation takes facts in the light most favorable to Starnes.

      . We refer to the Estradas by first name because both Ludy and Vincent are mentioned throughout the opinion.

      .Starnes’s affidavit states that this meeting took place in December 2012, but given that it clearly indicates that Starnes was still working there at the time and that it was before the 2011 holidays, it is apparent that she meant to say December 2011.

      . The Ninth Circuit has held that Kasten requires a slightly different standard than the “manager rule” used in Hagan. Rosenfield v. GlobalTranz Enters, Inc., 811 F.3d 282, 287-88 (9th Cir. 2015). The Ninth Circuit thus requires that the plaintiff's complaint be "sufficiently clear and detailed for a reasonable employer to understand it, in light of both content and context, as an assertion of rights protected by the statute and a call for their protection.” Kasten, 131 S.Ct. at 1335. However, it has acknowledged that its rule, which treats the plaintiff’s job duties as “one consideration” in determining whether an employee gives fair notice, and our manager rule "likely are consistent.” Rosenfield, 811 F.3d at 287. And we have continued to apply the language both from Hagan and Kasten consistently. See Lasater, 495 Fed.Appx. at 461.

      . Like Hagan, Lasater, McKenzie, and Claudio-Gotay are also cases in which the employee raised only a "concern'' about liability or policy and did not make a definitive allegation of illegality as Starnes did here. See Lasater, 495 Fed.Appx. at 460 (plaintiff brought up "concern[s]” about employee comp time violating university policy during a routine audit); McKenzie, 94 F.3d at 1481 .(plaintiff expressed “concerns about the company's possible FLSA violations”); Claudio-Gotay, 375 F.3d at 102 (plaintiff was "concerned with protecting [the company], not asserting rights adverse to [it]."). Allegations of illegality are more indicative that an employee is acting adversely to his employer than are concerns about liability.

      . Indeed, federal courts' use of McDonnell Douglas has become so habitual that its evi-dentiary framework has been improperly treated as a pleading standard, see Swierkiewicz, 534 U.S. at 511, 122 S.Ct. 992 (holding that a plaintiff need not plead a prima facie case as McDonnell Douglas sets forth a framework for evaluating evidence), and jury instruction, see Walther v. Lone Star Gas Co., 952 F.2d 119, 127 (5th Cir. 1992) (explaining that jury should not be instructed using McDonnell Douglas standard).

      . Daybreak argues Starnes is unable to establish the causal link for another reason. It contends that Wallace, Daybreak’s Chief Financial Officer, terminated her, not Rich. This means, in its view, there is no evidence Wallace knew about Starnes’s reporting of the Vincent Estrada wage issue. See Russell v. McKinney Hosp. Venture, 235 F.3d 219, 226 (5th Cir. 2000) (explaining that the final decisionmaker must be aware of the protected activity or he must have been improperly influenced by someone with retaliatory intent). In evaluating Ludy Estrada’s claim, however, the district court found a factual dispute concerning who terminated her. We agree with that assessment of the evidence and find there is a similar dispute as to who terminated Starnes: As the district court noted, there is evidence that Rich sent out the email announcing which positions were to be eliminated and personally signed both Plaintiffs’ termination letters. Although Daybreak cites Wallace’s affidavit, in which he states that the termination decision was made solely by him, the parties’ competing stories demonstrate that there is a fact issue as to who terminated Starnes. Our review of the evidence also indicates a dispute about whether, assuming Wallace was the decisionmaker, he had knowledge of Starnes’s conduct before she was terminated. And it is undisputed that Rich had such knowledge.

      . Compare Little v. Tech. Specialty Prods., LLC, 940 F.Supp.2d 460, 479 (E.D. Tex. 2013) (holding that emotional distress damages are available under the FLSA) and Saldana v. Zubha Foods, LLC, 2013 WL 3305542, at *6 (W.D. Tex., June 28, 2013) (same) with Douglas v. Mission Chevrolet, 757 F.Supp.2d 637, 639-40 (W.D. Tex. 2010) (holding that emotional damages are not available under the FLSA); Adams, 2014 WL 66488, at *7 (N.D. Tex. Jan. 8, 2014) (same).

      . Daybreak argues that Pineda did not address its argument that the general "legal or equitable relief” language of the remedy provision is limited by the examples that follow: "reinstatement, promotion, and the payment of wages lost.” 29 U.S.C. § 216(b). Because the listed remedies target economic harm, Daybreak contends this ejusdem generis canon — meaning words should be interpreted to be "of the same kind” — precludes allowing emotional damages under the general language. Even if we could use this argument to reconsider Pineda, Daybreak misapplies this canon. It applies when "general words follow[] an enumeration of two or more things,” not to a statute like this one that starts with the general and follows that with specifics. Antonin. Scalia & Bryan Garner, Reading Law: the Interpretation of Legal Texts 199, 203-205 (2012). Another canon is actually implicated because the section 216(b)'s specific examples are preceded by the phrase "including without limitation”: "the verb to include introduces examples, not an exhaustive list.” Id. at 132-33 (emphasis in original) (noting this canon is reinforced when "without limitation” in included).

      . Starnes argues that the surrounding provisions support her broad interpretation of "violation of law.” In support, she cites the incorporation of federal law as part of the minimum standards by which Texas nursing homes are required to operate and to the requirement that compliance with applicable federal standards must be shown to obtain a license. Health Code §§ 242.001(b), 242.032(c)(2). But these provisions do no more than reinforce the obvious point that simultaneous compliance with federal and state law is required — they do not broaden the cause of action created under section 260A.014.


source: Caselaw Access Project

author: JERRY E. SMITH, Circuit Judge: STEPHEN A. HIGGINSON, Circuit Judge,

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Thomas LUCAS, Jr., Defendant-Appellant.
    No. 15-41229
    United States Court of Appeals, Fifth Circuit.
    Filed February 27, 2017

      Bradley Elliot Visosky, Assistant U.S. Attorney, Christopher Andrew Eason, Esq., U.S. Attorney’s Office, Eastern District of Texas, Plano, TX, Traci Lynne Kenner, Assistant U.S. Attorney, U.S. Attorney’s Office, Eastern District of Texas, Tyler, TX, for Plaintiff-Appellee.

      Mario Pfister Cadeddu, Esq., Dallas, TX, for Defendan1>-Appellant.
    Before JOLLY, SMITH, and HIGGINSON, Circuit Judges.
   JERRY E. SMITH, Circuit Judge:

Thomas Lucas, Jr., appeals his conviction on seven counts of wire fraud and one count of making false statements to an FBI agent. Lucas claims error in two evi-dentiary rulings and the denial of a new trial. We find no reversible error and affirm.

I.

Lucas was an employee of the Harry B. Lucas Company, a real estate investment business that had been founded by his grandfather and was run by Lucas’s father and two uncles. In 2005, Lucas initiated a fraudulent real estate investment scheme through the company after he returned from a bachelor party claiming to have information about a business opportunity. Lucas alleged his high school friend Robbie Marks, Marks’s brother-in-law, and other attendees had told him of the Walt Disney Company’s plans to build a theme park near Celina, in North Texas.

Upon receiving that information from Lucas, the Harry B. Lucas Company hired additional sales employees, who were required to sign nondisclosure agreements and were told of the secret Disney development. The company then began purchasing land where the entrance to the theme park was supposedly to be. Additional investors were recruited through presentations made by Lucas, who was the sole source of the company’s information. The presentations were made using a laptop and a binder that contained the fabricated plans. The attendees were also required to sign non-disclosure agreements, and Lucas maintained throughout the presentations that a “lifelong friend” was the source of the information.

Over time, the information and documentary evidence that Lucas claimed to have of the development and presented to potential investors expanded. He offered fake letters allegedly exchanged between the Chairman of Walt Disney Parks and Resorts, Jay Rasulo, and the company supposedly handling Disney’s land acquisition efforts. Lucas claimed the development was to include several theme parks, a water park, a new airport, a maglev train, hotels, villas, sports facilities, and a shopping mall. He had elaborate park maps, floor plans, and mockups of the facilities.

The scheme began to unravel when it came time for Disney to announce the project. Lucas informed his investors of a series of announcement dates, none of which, of course, occurred. Lucas attempted to calm the rising fears over the missed dates by distributing a fake memo from Disney CEO Bob Iger setting the announcement for October 1, 2008, along with a photo of Rasulo practicing his announcement speech. That announcement also inevitably failed to occur, leading Lucas to invent another excuse — that Rasu-lo’s family had been injured in a car accident.

Lucas’s scheme was ultimately undone through investigations by the investors themselves. They were able to find, online, the photo that Lucas claimed to be of Rasulo practicing his announcement speech; they discovered it was really a modified image of Rasulo speaking at Disneyland’s fiftieth birthday party. At trial, Rasulo confirmed that the photo was taken at the birthday party, that Disney never planned to open such a development in North Texas, and that there was no car accident.

In the meantime, the identity of Lucas’s source had been evolving from the original “lifelong Mend” to more distant acquaintances, all of whom denied providing Lucas with any information about a Disney development in North Texas. During the FBI investigation into the scheme, Lucas told Special Agent Richard Velasquez in September 2014 that his source was Michael Watson, Sr., who Lucas claimed was both a lifelong Mend a person he had met for the first time at the 2005 bachelor party. According to Lucas, Watson leaked the Disney information to him using burner phones and operated as a go-between for a Disney employee named Tyson.

Watson was not supplying Lucas with any information but, instead, was an acquaintance he made at a methadone clinic they were attending. In 2011, Watson had moved back to Louisiana, where he had lived before Hurricane Katrina, and committed suicide. Watson’s common-law wife testified that he had no connection to Disney or to a company buying land for Disney and that he had never shared such information with her. About 280 people had invested $47 million based on the fraudulent Disney information, resulting in a loss of over $19.6 million.

Lucas was convicted on seven counts of wire fraud under 18 U.S.C. § 1348 for payments wired as part of the scheme and on one count of making false statements to the FBI under 18 U.S.C. § 1001. He was sentenced to 210 months’ imprisonment.

II.

Lucas asserts that the evidence that he met Watson at a methadone clinic was improperly admitted under Federal Rule of Evidence 404(b). The government put on evidence that Lucas had to obtain a waiver from the methadone clinic to attend Watson’s funeral. Lucas objected to that evidence in a motion in limine but did not renew the objection at trial. In his motion, Lucas stated that “[sjuch testimony is not relevant, constitutes an inadmissible bad act not resulting in a conviction and is highly prejudicial to Defendant.”

The parties dispute whether that motion properly preserved the objection for appeal. The government argues it was not preserved, because the objection offered insufficiently specific grounds, the district court’s ruling on the motion was not definitive, and the objection was not renewed at trial. We disagree.

A.

Lucas preserved the objection, and we review it for abuse of discretion. United States v. Morgan, 505 F.3d 332, 339 (5th Cir. 2007). Lucas was not required to renew his objection to the methadone evidence at trial. Federal Rule of Evidence 103(b) states that “[o]nee the court rules definitively on the record — either before or at trial — a party need not renew an objection or offer of proof to preserve a claim of error for appeal.” A pretrial motion in limine, objecting to the evidence, is enough. Mathis v. Exxon Corp., 302 F.3d 448, 459 (5th Cir. 2002).

The motion in limine also satisfied Rule 103(a)(l)(B)’s specificity requirement. A party has preserved error in the admission of evidence if his objection “states the specific ground, unless it was apparent from the context.... ” Fed. R. Evtd. 103(a)(1)(B). A Rule 404(b) objection is sufficiently specific if it is to “incidents that occurred at work, not crimes that he’s ever been convicted of’ and that was acknowledged by the district court as a Rule 404(b) objection. United States v. Mireles, 442 Fed.Appx. 988, 994 (5th Cir. 2011) (per curiam).

Lucas’s objection stated that the methadone evidence “constitutes an inadmissible bad act not resulting in a conviction and is highly prejudicial to Defendant.” He in-eluded no citation to the rule, but the language is a direct reference to Rule 404(b)’s prohibition on “[e]vidence of a crime, wrong, or other act” that is used “to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.” Fed. R. Evid. 404(B).

Furthermore, we have used the similar language of “prior bad acts” to describe the type of evidence that is barred by Rule 404(b). See, e.g., United States v. Clark, 582 F.3d 607, 616 (5th Cir. 2009). Lucas’s counsel’s statement also alerted the government that a Rule'404(b) objection was being asserted, because the government’s response referred to the rule. Lucas’s reference to “inadmissible bad act[s]” was sufficient to make his Rule 404(b) objection “apparent from the context.” Fed. R. Evid. 103(a)(1)(B).

B.

It was not an abuse of discretion to admit the evidence that Lucas met Watson at a methadone clinic, because it was not subject to the prohibitions of Rule 404(b). Only extrinsic evidence is inadmissible under Rule 404(b). United States v. Williams, 900 F.2d 823, 825 (5th Cir. 1990). “Evidence of other acts is intrinsic “when the evidence of the other act and the evidence of the crime charged are inextricably intertwined or both acts are part of a single criminal episode or other acts were necessary preliminaries to the crime charged.’ ” United States v. Miranda, 248 F.3d 434, 440 (5th Cir. 2001) (quoting Williams, 900 F.2d at 825). In Miranda, we held that evidence of prior drug transactions was admissible because it was “background information establishing the connection between a witness and a defendant” in prosecutions for the possession and distribution of illegal drugs. Id. at 441.

This is precisely the purpose of admitting evidence that Lucas met Watson at a methadone clinic and had requested permission from the clinic to attend Watson’s funeral. The true nature of the relationship that Lucas had with the person he claimed to be his source for the Disney information was “inextricably intertwined” with the fraudulent scheme. Rule 404(b) is inapplicable to the methadone evidence, so it was not an abuse of discretion to admit it.

III.

Lucas also appeals the denial of his motion for a new trial based on newly discovered evidence. After trial, Lucas discovered evidence that several hundred thousand dollars in the real estate partnerships overseen by his uncle, Beau Lucas, was unaccounted for. He also found that a payment had been made from the partnership to Jon Konack, a government witness and victim of Lucas’s fraudulent scheme. Beau Lucas had exclusive control of those financial records, and the unaccounted-for funds were not discovered until a review of the partnership after he died.

“We review the denial of a motion for new trial on the basis of newly discovered evidence exclusively for an abuse of discretion.” United States v. Gresham, 118 F.3d 258, 267 (5th Cir. 1997). “In this Circuit, the generally accepted standard is that a new trial ordinarily should not be granted ‘unless there would be a miscarriage of justice or the weight of evidence preponderates against the verdict.’ ” “[T]he defendant must prove (1) that the evidence is newly discovered and was unknown to him at the time of trial; (2) that the failure to discover the evidence was not due to his lack of diligence; (3) that the evidence is not merely cumulative, but is material; and (4) that the evidence would probably produce an acquittal.” Gresham, 118 F.3d at 267.

Lucas claims the district court was wrong to find that he had done insufficient due diligence to uncover the new evidence. But the court actually found that Lucas had failed to provide enough evidence that he had done the requisite due diligence at all. That Beau Lucas was in exclusive control of the partnership records does not excuse Lucas from the burden of explaining to the court the steps he took to attempt to obtain the information.

Furthermore, this new evidence is also immaterial to Lucas’s convictions and would be highly unlikely to lead to an acquittal. Evidence is material where it “greatly strengthen^] the defendant’s argument” that another person committed the crime, but Lucas has not shown that here. United States v. Piazza, 647 F.3d 559, 569-70 (5th Cir. 2011). Even assuming this new information is evidence of Beau Lucas’s involvement, his participation does not undermine the conclusion that Lucas was involved in the scheme. It was not an abuse of discretion to deny Lucas a new trial on these bases. See Gresham, 118 F.3d at 267.

IV.

Lucas objects to the admission of portions of his deposition testimony, from the related civil case, through the summary-evidence testimony of a government agent. Lucas concedes that he did not object to the introduction of his deposition testimony in this hybrid manner, so we review only for plain error. United States v. Fullwood, 342 F.3d 409, 413 (5th Cir. 2003); Fed. R. Crim. P. 52(b).

There are four requirements that must be satisfied to justify reversal under our plain error analysis: (1) there must be an error or deviation from an established legal rule; (2) the error must be clear or obvious and not subject to reasonable dispute; (3) the error affected the defendant’s substantial rights; and (4) if the first three requirements are satisfied, the court of appeals retains the discretion to correct the error and will do so only when it “seriously affect [s] the fairness, integrity or public reputation of judicial proceedings.”

United States v. Segura, 747 F.3d 323, 327 (5th Cir. 2014) (quoting United States v. Escalante-Reyes, 689 F.3d 415, 426 (5th Cir. 2012) (en banc)). “Reversing a district court for plain error should be ‘rare.’ ” United States v. Brown, 826 F.3d 835, 841 (5th Cir. 2016) (citation omitted).

A.

Federal Rule of Evidence 1006 allows the “use [of] a summary, chart, or calculation to prove the content of voluminous writings, recordings, or photographs that cannot be conveniently examined in court.” Fed. R. Evid. 1006. “[T]his rule does not specifically address summary witnesses or summarization of trial testimony.... ‘Plainly, th[e] rule does not contemplate summarization of live testimony presented in court.’ ” Fullwood, 342 F.3d at 413 (quoting United States v. Castillo, 77 F.3d 1480, 1499 n.36 (5th Cir. 1996)). But “[f]or complex cases, we have allowed summary witnesses in a limited capacity.” Id. Under our precedents, the rule allows the summarization of voluminous writings, recordings, or photographs through testimony if the case is sufficiently complex and the evidence being summarized is not “live testimony presented in court.” The summary testimony must be accompanied by a limiting jury instruction, and the underlying evidence must be admitted and available to the jury.

The district court allowed the government to present portions of Lucas’s twelve' to thirteen hours of civil deposition testimony by having Velasquez paraphrase some of its content. The paraphrasing described parts of the deposition that had not been already presented to the jury; it was interspersed with video of the actual deposition testimony. This paraphrasing is effectively a summary of Lucas’s deposition testimony, all of which was admitted into evidence by agreement and was available for the jury to review.

It was error to permit Velasquez to paraphrase the deposition testimony, which was insufficiently complex. Our decisions finding adequate complexity include, for example, the submission of .false crop-insurance claims and tax prosecutions that involved “seventeen days of technical testimony.” Fullwood, 342 F.3d at 410-11, 414 (crop insurance); Bishop, 264 F.3d at 547 (tax). In contrast, the summary here was of portions of a long deposition rather than complex investigations. The government instead could have shown the relevant clips from the deposition; complexity did not bar it from doing so. The government also did not explain why that was not an option other than that the deposition was lengthy.

B.

The error, however, was not “so clear or obvious that ‘the trial judge and prosecutor were derelict in countenancing it, even absent the defendant’s timely assistance in detecting it.’ ” “An error is not plain under ‘current law’ ‘if a defendant’s theory requires the extension of precedent.’ ”

We have not directly addressed a situation in which deposition testimony of a criminal defendant is summarized by a prosecution witness, so the finding of error is an “extension of precedent.” See Trejo, 610 F.3d at 319. Furthermore, summarizing a criminal defendant’s lengthy deposition testimony from an earlier case is more closely related to the purpose of the rule than is the summarization of the govern-merit’s case-in-chief on rebuttal, which we have allowed under plain error review. See Fullwood, 342 F.3d at 413.

The length of the deposition was arguably voluminous, and the deposition transcripts and video were available for the-jury. See Smyth, 556 F.2d at 1184. Velazquez also did not seriously mischarac-terize Lucas’s deposition in his paraphrasing, another circumstance in which we have found no plain error. See Castillo, 77 F.3d at 1500. Admitting the summary testimony under these circumstances was not such a plain error that the court was “derelict in countenancing it....” Narez-Garcia, 819 F.3d at 151.

V.

Lucas claims that Velazquez offered inappropriate opinion testimony. As Lucas concedes, he did not object, so we use the plain-error standard. Fullwood, 342 F.3d at 413. Lucas contends that Velasquez should not have been permitted to testify that drafting, an email technique, was used by terrorists or to suggest that some of Lucas’s deposition testimony was inconsistent with the use of drafting. Given the overwhelming quantum of evidence used to convict, any error did not affect Lucas’s substantial rights under the third prong of plain-error review and, in any event, under the fourth prong, the putative error would not “seriously affect[] the fairness, integrity, or public reputation of the proceedings.” United States v. Aguirre-Romero, No. 16-40231, — F.3d -, -, 2017 WL 758338, at *1, 2017 U.S. App. LEXIS 3329, at *1 (5th Cir. Feb. 23, 2017) (per curiam).

AFFIRMED.

STEPHEN A. HIGGINSON, Circuit Judge,

concurring:

I concur in affirming the judgment, but write separately to note that I would resolve Lucas’s assertion of error about Special Agent Richard Velasquez on the other elements of plain-error review. Lucas challenges, and the majority opinion addresses, the agent as an impermissible “summary witness,” in violation of Rule 1006 (“Summaries to Prove Content”) of the Federal Rules of Evidence. But the record does not reveal that the Government in fact offered, Lucas objected to, or that the district court viewed the agent as a summary witness.

To elaborate briefly, and to “promote the development of evidence law,” Fed. R. Evid. 102, I read Rule 1006 as a rule of inclusion, rather than exclusion, and therefore inapplicable to Agent Velasquez’s testimony. In my view, Agent Velasquez’s testimony must be either lay or expert. Fed. R. Evid. 701-702; cf. United States v. Fullwood, 342 F.3d 409, 413-14 (5th Cir. 2003) (cautioning against “rebuttal witness” whose testimony was not “in and of [itself] evidence or proof of any facts”); United States v. Castillo, 77 F.3d 1480, 1499-1500 (5th Cir. 1996) (cautioning against expert testimony about matters beyond personal knowledge or special expertise). If offering admissible lay- or expert-opinion testimony, Agent Velasquez may be cross-examined, see Rule 611(b)-(c), or relevant here, interrupted pursuant to Rule 106 (“the rule of completeness”). His testimony would also be subject to the rule against hearsay in Rule 802, exclusion under the balancing test of Rule 403, or other district court control according to Rule 611(a). See generally United States v. Nelson, 732 F.3d 504, 518 n.4 (5th Cir. 2013). Obliging parties to offer and object to testimony using the explicit framework provided by our evidentiary rules has advantages that I fear are lost by recognizing new categories of witnesses, like “summary witnesses,” which in turn requires more difficult-to-define strictures, like whether a case is “complex” enough for “recapitulation” testimony. Determinatively here, however, I am appreciative and agree with the majority’s conclusion that no plain error occurred.

      . United States v. Wright, 634 F.3d 770, 775 (5th Cir. 2011) (quoting United States v. Wall, 389 F.3d 457, 466 (5th Cir. 2004)); see also Fed. R. Crim. P. 33.

      . "Full cross-examination and admonitions to the jury minimize the risk of prejudice." United States v. Bishop, 264 F.3d 535, 547 (5th Cir. 2001).

      . Id. There is conflicting precedent in this circuit as to whether the evidence relied upon for the summary must be presented to the jury or merely admitted. The rule states that "[t]he proponent must make the originals or duplicates available for examination or copying, or both, by other parties at a reasonable time and place. And the court may order the proponent to produce them in court.” Fed. R. Evid. 1006.
      Our first summary-evidence decision under Rule 1006 required that evidence be merely available. United States v. Smyth, 556 F.2d 1179, 1184 (5th Cir. 1977) (holding that the summaries provided under the rule were themselves evidence, in part because "the rule requires only the availability of the underlying documents"). In United States v. Nguyen, 504 F.3d 561, 572 (5th Cir. 2007), the standard was heightened: "[W]hile summary witnesses may be appropriate in complex cases in certain circumstances, they are improper for introducing evidence that the jury has not previously heard.” Id. That is in conflict with Smyth, 556 F.2d at 1184. The rule of orderliness tells us to ignore that particular holding of Nguyen and permit summary evidence testimony that is based on evidence that is admitted and available, but not necessarily presented, to the jury. See Jacobs v. Nat’l Drug Intelligence Ctr., 548 F.3d 375, 378 (5th Cir. 2008).

      . United States v. Narez-Garcia, 819 F.3d 146, 151 (5th Cir. 2016) (quoting United States v. Hope, 545 F.3d 293, 295-96 (5th Cir. 2008)).

      . United States v. Trejo, 610 F.3d 308, 319 (5th Cir. 2010) (quoting United States v. Jackson, 549 F.3d 963, 977 (5th Cir. 2008)).

      . Because Lucas’s attempt to prevail on plain-error review fails at the second prong, we do not examine the error under the third or fourth prong.


author: HOOD, District Judge.

text:
    Darla CLARK, Plaintiff-Appellant, v. COMMISSIONER OF SOCIAL SECURITY, Defendant-Appellee.
    No. 16-5393
    United States Court of Appeals, Sixth Circuit.
    Decided and Filed: November 29, 2016

      ON BRIEF: Paul B. Eaglin, Olinsky Law Group, Syracuse, New York, for Appellant. Brian J. Alesia, Social Security Administration, Chicago, Illinois, for Ap-pellee.
    Before: MOORE and CLAY, Circuit Judges; HOOD, District Judge.

       This decision was originally issued as an unpublished opinion filed on November 29, 2016. The court has now designated the opinion as one recommended for full-text publication.

       The Honorable Joseph M. Hood, United States District Judge for the Eastern District of Kentucky, sitting by designation.

   OPINION

HOOD, District Judge.

Plaintiff-Appellant Darla Clark (“Clark” or “Plaintiff’) appeals the decision of the district court granting in part and denying in part her motion for attorney fees under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d)(2)(A), arguing that the district court abused its discretion when it declined to award attorney fees at the adjusted hourly rate as she requested. For the reasons stated below, we AFFIRM.

I.

On January 8, 2016, Clark filed a sworn motion for attorney fees under the EAJA, seeking $6,790.52 in fees. The total represented 34.75 attorney hours multiplied by an hourly rate of $176.13, plus 6.70 paralegal hours multiplied by an hourly rate of $100. The hourly rate exceeded the $125 rate provided for under the EAJA, but Clark argued that her counsel should receive a cost of living adjustment. In her motion, Clark calculated the cost of living adjustment by relying on the United States Bureau of Labor Statistics Consumer Price Index (“CPI”) for “Midwest Urban Consumers,” which she argued was the CPI “for this region.” The CPI was the sole evidence upon which she relied in her request for the adjusted rate. The Commissioner objected to the enhanced rate. Citing Bryant v. Commissioner of Social Security, 578 F.3d 443, 450 (6th Cir. 2009), the Commissioner argued that referring to the cost of living and relying on the CPI was not sufficient to justify an hourly rate higher than the cap set forth in the EAJA. Rather, she argued that satisfactory evidence in addition to the attorney’s affidavit was required to support a conclusion that the requested rate was in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation. The Commissioner requested that the Court award EAJA fees at a rate of no more than $140, which she identified as the current reasonable and customary rate for experienced Social Security practitioners in the Western District of Kentucky based on decisions in other matters.

Only in her reply did Clark attach a declaration from her attorney, Howard D. Olinsky, in which he stated that he had practiced disability law from his Syracuse, New York, office for several years and provided his firm’s non-contingent hourly rate. Clark argued for the first time that, in Glenn v. Commissioner of Social Security, 763 F.3d 494 (6th Cir. 2014), this Court had concluded that Olinsky’s requested rate of $176.13 was modest and appeared to be reasonable and that several other courts of appeal have held that citing to the CPI alone was sufficient to justify an enhanced hourly rate above the statutory cap.

The district court granted an award of fees but denied the requested rate on March 15, 2016, concluding that the hourly rate was inappropriate because, under Bryant, the CPI alone is insufficient to satisfy the Plaintiffs burden to produce appropriate evidence to support an increased rate in the absence of evidence that the rate requested was in line with that charged by comparable attorneys in Bowling Green, Kentucky. The Court concluded, as well, that the Court of Appeals’ comments in Glenn were dicta and did not address the issue of whether the rate requested by Clark was in-line with that charged by similar attorneys in Bowling Green, Kentucky. Rather, the district court determined that the Commissioner had provided sufficient evidence from a line of Western District of Kentucky cases showing that $140 was the prevailing market rate for hourly work by experienced Social Security practitioners in the Western District of Kentucky. An hourly rate of $140 was awarded.

Plaintiff filed a timely appeal of the decision on March 25, 2016, and this Court has appellate jurisdiction pursuant to 28 U.S.C..§ 1291.

II.

This Court reviews a decision on an application under the EAJA, including the district court’s determination of whether a request for fees is reasonable, for an abuse of discretion. Bryant, 578 F.3d at 445 (citing Blum v. Stenson, 465 U.S. 886, 898, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984); Townsend v. Comm’r of Soc. Sec., 415 F.3d 578 (6th Cir. 2005)). “A district court abuses its discretion when it relies on clearly erroneous findings of fact, or when it improperly applies the law or uses an erroneous legal standard.” Id. (quoting Deja Vu of Nashville, Inc. v. Medro. Gov’t of Nash ville & Davidson Cty., 274 F.3d 377, 400 (6th Cir. 2001)).

III.

Under the EAJA, the hourly rate for attorney fees is capped at $125 per hour “unless the court determines that an increase in the cost of living or a special factor, such as the limited availability of qualified attorneys for the proceedings involved, justifies a higher fee.” 28 U.S.C. § 2412(d)(2)(A). The rate of $125 is “a ceding and not a floor.” Chipman v. Sec’y of Health & Human Servs., 781 F.2d 545, 547 (6th Cir. 1986). When requesting an increase in the hourly fee rate above the statutory cap, a plaintiff “bear[s] the burden of producing appropriate evidence to support the requested increase.” Bryant, 578 F.3d at 450 (citing Blum, 465 U.S. at 898, 104 S.Ct. 1541). This Court has held that reference to the CPI, alone, is insufficient to sustain that burden and that “[p]laintiffs must ‘produce satisfactory evidence — in addition to the attorney’s own affidavits — that the requested rates are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation.’ ” Id. (quoting Blum, 465 U.S. at 895 n.11, 104 S.Ct. 1541). Evidence of rates outside of the relevant jurisdiction provide no evidence of the prevailing rates within a given community for attorneys of comparable skill, experience, and reputation. See id.

In support of her motion for attorney fees, Clark submitted a half-page calculation of her fees using the Midwest Urban CPI to reach an adjusted hourly rate of $176.13 per hour and, in support of her reply brief, a declaration concerning attorney Olinsky’s experience and his non-contingent hourly rate in Syracuse, New York. The record below contains no discussion, let alone evidence, of the rate that comparably experienced Social Security practitioners command in Bowling Green, Kentucky, save awards referenced in other cases in that district.

Plaintiff presents two arguments in support of her contention that the district court erred. Clark contended below and argues on appeal that this Court’s decision in Glenn, which describes Olinsky’s requested hourly rate of $171.06 in that case as “modest” and “appear[ed] to be reason-ablet,]” controls the cost of living adjustment which should be applied. 763 F.3d at 497 n.3. The district court concluded, however, that Glenn was not dispositive because it was concerned with whether the Commissioner’s position was substantially justified, not the rate recoverable by counsel, which was referenced only in dicta. Further, Glenn addressed work performed in a case in the Eastern District of Michi-gan, not the Western District of Kentucky. We conclude that the dicta in Glenn has no bearing on the decision at hand for the same reasons as articulated by the district court.

Additionally and at greater length, Clark argues that the language of the EAJA supports her position that the CPI alone can support a claim for a particular hourly rate dqe to the increased cost of living and cites a series of cases for the proposition that the “prevailing market rate” has nothing to do with a cost of living increase. She argues that the district court erred when it conflated the two concepts and that, in fact, once a court concludes that some amount greater than $125 per hour is the “prevailing market rate,” then the cost of living adjustment may be made without reference to the going rate of practice in the local area. Thus, she urges us to conclude that the district court lacked the authority to arbitrarily set the amount of the cost of living adjustment or require additional proof beyond that submitted.

Clark provides an extensive review of case law from across the circuits to show that many courts have recognized the validity of using the CPI to determine whether inflation demands an increase in the maximum allowable fee beyond the $125 statutory cap. For example, in Castaneda-Castillo v. Holder, 723 F.3d 48, 76-77 (1st Cir. 2013), the United States Court of Appeals for the First Circuit used the regional CPI to calculate the cost of living adjustment where the government did not object to calculating the hourly attorney rate based on that number. By contrast, in Harris v. Sullivan, 968 F.2d 263, 265 (2d Cir. 1992), the United States Court of Appeals for the Second Circuit rejected the district court’s holding that the “maximum hourly rate should be increased to take into account the prevailing market rate for legal - services,” held that the “cost of living” should be measured using the CPI, and determined that the statutory cap— not the award itself — should be adjusted for general inflation by the district court by referencing the CPI before reaching a determination on fees. In DeWalt v. Sullivan, 963 F.2d 27, 29-30 (3d Cir. 1992), the United States Court of Appeals for the Third Circuit held that the statutory cap— not necessarily the hourly fee awarded— should be evaluated and increased using the CPI-ALL to adjust for inflation.

As suggested above, these cases do not universally stand for the proposition that a district court must award the maximum amount possible once the statutory cap is increased to reflect the cost of living adjustment, perhaps with reference to the CPI. For example, in Sprinkle v. Colvin, 111 F.3d 421, 428-29 (7th Cir. 2015), the United States Court of Appeals for the Seventh Circuit concluded that, while the CPI was a more practical and meaningful measure of the cost of providing legal services than requiring litigants to provide proof of the effects of inflation on the requested attorneys’ costs, the EAJA contemplates that fee awards should be based upon prevailing market rates paid by clients, not costs paid by attorneys. Id. Thus, while the CPI provides a reasonably accurate measure of the need for inflation adjustment to the statutory cap in most cases, under Sprinkle, a plaintiff must still produce evidence that the rate they request is in line with those rates prevailing in the community for similar services by lawyers of comparable skill and experience in order to justify the increase. Id. at 429 (holding that “to avoid the possibility of a ‘windfall,’ courts may not award an inflation-adjusted rate that is higher than the prevailing market rate in the community for comparable legal services.”).

Clark further argues that a conclusion that she failed to meet her burden under Bryant conflates the issues of what the lodestar calculation should be and whether a cost of living adjustment is justified. She argues that the “appropriate evidence” or “satisfactory evidence” requirement announced in Bryant only applies in cases where the district court caps the fee award at the statutory ceiling of $125 per hour because the “prevailing market rates for the kind and quality of the services furnished” under 28 U.S.C. § 2412(d)(2)(A) exceeds $125 and not in cases, such as the present case, where the district court decides to exceed the EAJA cap in its award. Arguably, she is correct, but that does not suggest that the district court reached an erroneous conclusion.

In this instance, the district court determined that there are reasons to award some amount greater than $125 per hour, including the fact that prevailing rates in the community, as recognized by the court, exceed this amount and that evidence from the CPI indicates that the cost of services has increased. This does not mean, however, that the district court could only reasonably conclude that Plaintiff had met her burden to support the full amount of the award requested where she provided only the CPI and her attorney’s affidavit that referenced a different locality from Bowling Green, Kentucky. Clark’s argument runs roughshod over the statutory requirement that the “amount of fees awarded ... shall be based upon prevailing market rates for the kind and quality of the services furnished.” 28 U.S.C. § 2412(d)(2)(A). Bryant teaches that there must be some understanding of the rates charged locally before a district court can adjust for cost of living or other factors. The Commissioner argues, albeit somewhat indirectly, that the emphasis on local geographic rates discussed in Bryant is still relevant once a cost of living adjustment is used to raise the cap on the award that must be made. We agree.

To the extent that Clark wishes for us to “clarify” the decision in Bryant, we may do so while leaving that decision in intact and while affirming the district court’s decision. We conclude that the district court acted within its discretion when it awarded Clark attorney fees at a rate of $140 per hour, although perhaps it might have better articulated how it was adjusting the statutory cap. For example, it might have done so by recognizing its use of the CPI in an upward adjustment of the statutory cap based on the cost of living but declining to award an amount equal to that cap in the absence of any evidence that the full amount would be the prevailing market rate for attorneys of comparable skill, experience, and reputation in Bowling Green, Kentucky, as presented by the Commissioner. Nonetheless, it is clear that the district court did not abuse its discretion in awarding Clark an attorney fee calculated on a rate of $140 per hour, and we AFFIRM the decision of the district court.

      . In the proceeding below, the district court ' reversed the Commissioner's denial of benefits and remanded the case for a new hearing and decision upon the joint motion of the parties. Plaintiff's motion for attorney fees under the EAJA was filed after a successful prosecution of the claim at the administrative level.

      . We note that the Commissioner also references this Court’s unpublished decision in Gay v. Commissioner of Social Security, No. 13-2575, at 4-5 (6th Cir. Aug. 7, 2014), as an example of a case where evidence of rates charged in Illinois and Wisconsin for Social Security work or for work in the local area on ERISA cases was insufficient to determine prevailing market rate for Social Security work in the Eastern District of Michigan and that, under Bryant, reference to the CPI with nothing else was insufficient to justify an increase in the hourly rate.

      . The Commissioner argues that Clark makes this argument for the first time on appeal and that we should consider the issue waived. See Ealy v. Comm’r of Soc. Sec., 594 F.3d 504, 513 (6th Cir. 2010) (citing Young v. Sec’y of Health & Human Servs., 925 F.2d 146, 149 (6th Cir. 1990); Kidd v. Comm’r of Soc. Sec., 283 Fed.Appx. 336, 344 (6th Cir. 2008)) (holding that an appellant waives any challenges not raised before the district court and raised for the first time on appeal). We are not persuaded and conclude that, in this instance, the issues directly addressed in this appeal could be understood as raised below under the umbrella of what rate should apply, even if Clark did so inartfully and even if she is citing certain cases for her position for the first time on appeal.

      . See also Sullivan v. Sullivan, 958 F.2d 574, 575-78 (4th Cir. 1992) (same); Baker v. Bowen, 839 F.2d 1075, 1084 (5th Cir. 1988) (explaining that, while not absolutely required, adjustment for cost of living is a factor to be considered in evaluating requests under the EAJA within district court's discretion); Yoes v. Barnhart, 467 F.3d 426, 427 (5th Cir. 2006) (declining to require uniform cost of living adjustments throughout each district noting, among other things, the varying costs of living among cities in each district and explaining that the EAJA factors are market-based); Johnson v. Sullivan, 919 F.2d 503, 505 (8th Cir. 1990) (holding that where EAJA petitioner presents uncontested proof of an increase in the cost of living sufficient to justify hourly attorney fees of more than statutory cap, enhanced fees should be awarded but that district court should consider any circumstances that would render a cost-of-living increase unjust or improper, citing as an example the situation where.petitioner’s counsel ordinarily charges a fee no greater than the statutory cap per hour which would preclude a cost-of-living increase above that amount); Thangaraja v. Gonzales, 428 F.3d 870, 876-77 (9th Cir. 2005) (holding that appropriate cost-of-living increases are calculated by multiplying $125 statutory rate by the annual average consumer price index figure for all urban consumers (“CPI-U”) for the years in which counsel’s work was performed, and then dividing by the CPI-U figure- for the effective date of the statutory cap and awarding adjusted statutory maximum); Meyer v. Sullivan, 958 F.2d 1029, 1031 (11th Cir. 1992) (remanding case to determine district court’s rationale for declining to apply cost-of-living escalator but stating that district courts had discretion to apply cost-of-living escalator where necessary in order to determine if market rate for fees was to be awarded or whether adjusted cap would be awarded); but see Headlee v. Bowen, 869 F.2d 548, 552 (10th Cir. 1989) (holding that is in the sound discretion of district court to determine whether CPI alone constitutes sufficient evidence to support raising the statutory cap for cost of living adjustment purposes).


author: JANE B. STRANCH, Circuit Judge.

text:
    IN RE: Michael CORRIN, Debtor. State of Tennessee, Intervenor-Appellant (16-5717), Metropolitan Government of Nashville & Davidson County, Creditor-Appellant (16-5719), v. Henry E. Hildebrand, III, Trustee-Appellee, Michael Corrin, personal representative for the Estate of Mildred Josephine Bratt, deceased, Appellee.
    Nos. 16-5717/5719
    United States Court of Appeals, Sixth Circuit.
    Argued: January 26, 2017
    Decided and Filed: February 23, 2017

      ARGUED: Gill R. Geldreich, OFFICE OF THE TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, for Appellant Tennessee. R. Alex Dickerson, DEPARTMENT OF LAW OF THE METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, Nashville, Tennessee, for Metropolitan Government Appellant. Tracy L. Schweitzer, OFFICE OF THE CHAPTER 13 TRUSTEE FOR THE MIDDLE DISTRICT OF TENNESSEE, Nashville, Tennessee, for Appellee Hildebrand. Alexander S. Koval, ROTHSCHILD & AUS-BROOKS, PLLC, Nashville, Tennessee, for Appellee Corrin. ON BRIEF: Gill R. Geldreich, OFFICE OF THE TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, for Appellant Tennessee. R. Alex Dickerson, DEPARTMENT OF LAW OF THE METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, Nashville, Tennessee, for Metropolitan Government Appellant. Henry E. Hildebrand, III, OFFICE OF THE CHAPTER 13 TRUSTEE FOR THE MIDDLE DISTRICT OF TENNESSEE, Nashville, Tennessee, for Ap-pellee Hildebrand. Mary Elizabeth Aus-brooks, ROTHSCHILD & AUSBROOKS, PLLC, Nashville, Tennessee, for Appellee Corrin.
    Before: MERRITT, MOORE, and STRANCH, Circuit Judges.
   OPINION

JANE B. STRANCH, Circuit Judge.

This bankruptcy case raises questions of statutory interpretation, federal preemption, and equal protection. Mildred Bratt filed a Chapter 13 plan providing for 12% interest on overdue property taxes to which Metro Nashville objected, arguing that Tennessee law specifies 18% interest. The bankruptcy court decided that the state law violated the Supremacy Clause. The State of Tennessee intervened and the parties appealed. The bankruptcy appellate panel (BAP) affirmed use of the 12% interest rate on different grounds, relying instead on interpretation of federal and state statutes and declining to address the constitutional arguments. Likewise, we AFFIRM the bankruptcy court’s approval of a plan using the 12% interest rate based on the language of the statutes at issue.

I. BACKGROUND

A. Factual History

Mildred Bratt, now deceased and represented by Michael Corrin, filed for Chapter 13 bankruptcy. As part of her plan, she proposed paying overdue taxes to the Metro Government of Nashville, which held a lien on Bratt’s real property. The lien was oversecured, meaning there was more equity in the property than the total amount of $5,136.06 due at the time Nashville filed its claim.

The federal bankruptcy code (Code) specifies that the interest rate for tax claims should “enable a creditor to receive the present value of the allowed amount of a tax claim” and be “determined under applicable nonbankruptcy law.” 11 U.S.C. § 511(a). The Code generally does not allow assessment of post-petition penalties. Tennessee law sets an interest rate of 12% per year for overdue taxes and adds a 6% per year penalty. Tenn. Code Ann. § 67-5-2010. In 2012, a Tennessee bankruptcy court held that only the post-petition interest and not the penalty portion could be collected for oversecured claims in bankruptcy proceedings. In re Gift, 469 B.R. 800, 810 (Bankr. M.D. Tenn. 2012). In response, the Tennessee legislature amended the law in 2014 to add subsection (d):

For purposes of any claim in a bankruptcy proceeding pertaining to delinquent property taxes, the assessment of penalties pursuant to this section constitutes the assessment of interest.

Tenn. Code Ann. § 67-5-2010(d).

Bratt’s representative argues that the amended law deeming penalties to be interest in a bankruptcy proceeding should not apply to his case and that the statutory 12% is the appropriate interest rate. Nashville and Tennessee argue that the Tennessee statute as amended properly directs application of an 18% interest rate in bankruptcy proceedings.

B. Procedural History

We begin with a short summary of the procedural history to provide the framework for the parties’ arguments to the bankruptcy court and the BAP as well as the rationale of each court’s decision. The specifics of these arguments and rationales are contained in the analysis section below.

The bankruptcy court confirmed Bratt’s Chapter 13 plan, which all of the parties had agreed to, but reserved the issue of the appropriate interest rate for the overdue property taxes. The parties, including the State of Tennessee as an intervenor, briefed the issue of Tennessee’s amended statute and its applicability to the case. The bankruptcy court held that subsection (d) of the Tennessee statute violated the Supremacy Clause of the Constitution because of conflict preemption with the federal Code policy of not allowing post-petition penalties. In re Bratt, 527 B.R. 303, 314 (Bankr. M.D. Tenn. 2015). During that proceeding, Tennessee admitted that an interest rate of 18% exceeded what would be required to maintain the present value of the tax claim, id. even though § 511 allows for the collection of interest to “enable a creditor to receive the present value ... of a tax claim,” 11 U.S.C. § 511(a). The bankruptcy court held that Tennessee’s amendment attempting to reclassify the penalty as interest did not change the punitive nature of the extra 6% that was evident from the language and history of the statute. Tennessee and Nashville appealed to the BAP.

Following argument, the BAP affirmed the bankruptcy court’s determination that 12% was the appropriate interest rate, but rested its holding on different grounds. In re Bratt, 549 B.R. 462, 468-69 (6th Cir. BAP 2016). The BAP held that the language of Tenn. Code Ann. § 67-5-2010(d) specifying that a statutory penalty becomes an “assessment of interest” only in bankruptcy proceedings makes it a bankruptcy law. Therefore, subsection (d) is not a “nonbankruptcy law” and is not applicable for determining the interest rate under § 511(a) of the bankruptcy code. Neither the BAP nor the bankruptcy court addressed the additional argument that subsection (d) violates the Equal Protection Clause of the Constitution because it treats debtors in bankruptcy differently than other debtors. The State of Tennessee (Case No. 16-5717) and Nashville (16-5719) appealed the decision of the BAP. Bratt’s personal representative, Michael Corrin, and the Chapter 13 trustee have both filed briefing as appellees.

II. ANALYSIS

A. Jurisdiction and Standard of Review

We have jurisdiction under 28 U.S.C. § 158(d)(1) over appeals coming from the bankruptcy appellate panel. We focus our review on the bankruptcy court’s decision, not that of the BAP. Richardson v. Schafer (In re Schafer), 689 F.3d 601, 605 (6th Cir. 2012). Findings of fact are reviewed for clear error and conclusions of law are reviewed de novo. Id.

B. Tennessee Tax Statute as Bankruptcy Law

The bankruptcy code authorizes interest to be paid on oversecured claims. 11 U.S.C. § 506(b). Section 511 explains how to determine the appropriate interest rate:

If any provision of this title requires the payment of interest on a tax claim or on an administrative expense tax, or the payment of interest to enable a creditor to receive the present value of the allowed amount of a tax claim, the rate of interest shall be the rate determined under applicable nonbankruptcy law.

11 U.S.C. § 511(a).

In this case, the central question of interpretation is whether Tennessee’s statute qualifies as an “applicable non-bankruptcy law.” The current Tennessee statute says:

(a)(1) To the amount of tax due and payable, a penalty of one-half of one percent (0.5%) and interest of one percent (1%) shall be added on March 1, following the tax due date and on the first day of each succeeding month.
(d) For purposes of any claim in a bankruptcy proceeding pertaining to delinquent property taxes, the assessment of penalties pursuant to this section constitutes the assessment of interest.

Tenn. Code Ann. § 67-5-2010.

When interpreting a statute, a court begins with the language of the statute and examines the plain meaning of its words. Deutsche Bank Nat’l Trust Co. v. Tucker, 621 F.3d 460, 462-63 (6th Cir. 2010). If the language of the statute is clear, the court applies the statute as written. Lamie v. United States Trustee, 540 U.S. 526, 534, 124 S.Ct. 1023, 157 L.Ed.2d 1024 (2004). When the language is ambiguous or leads to an absurd result, the court may look at the legislative history of the statute to help determine the meaning of the language. Chrysler Corp. v. Comm’r, 436 F.3d 644, 654 (6th Cir. 2006).

All parties claim that the plain meaning of Tennessee’s statutory language supports their arguments. Corrin and the Chapter 13 trustee argue that subsection (d) of the statute qualifies as a bankruptcy law because it applies only to bankruptcy cases. If it is a bankruptcy law, subsection (d) does not qualify as “applicable non-bankruptcy law” and cannot be used to determine the appropriate interest rate under § 511(a) of the Code. The BAP read the statute this way. In re Bratt, 549 B.R. at 468. In support of this reading, the appellate panel looked to Sixth Circuit precedent that noted “state and federal legislatures share concurrent authority to promulgate bankruptcy laws.... ” In re Schafer, 689 F.3d at 606 (quoting Rhodes v. Stewart, 705 F.2d 159, 163 (6th Cir. 1983)). In Schafer, we acknowledged this state legislative authority and held that a Michigan bankruptcy-specific exemption statute was constitutional and not preempted by federal law.

In a case involving subordination clauses, the First Circuit looked at the phrase “applicable nonbankruptcy law,” as used in § 510, the preceding section of the Code. HSBC Bank USA v. Branch (In re Bank of New England Corp.), 364 F.3d 355 (1st Cir. 2004). The First Circuit stated that:

Congress has conferred on federal courts the power to apply any and all generally applicable state rules of contract interpretation in construing subordination agreements. But section 510(a) does not vest in the states any power to make bankruptcy-specific rules: the statute’s clear directive for the use of applicable nonbankruptcy law leaves no room for state legislatures or state courts to create special rules pertaining strictly and solely to bankruptcy matters.

HSBC Bank, 364 F.3d at 364 (emphasis in original). Under this interpretation, Congress authorized states to pass laws applicable in bankruptcy proceedings as long as those laws are generally applicable, not specifically targeted at bankruptcy proceedings.

Both sides in this case cite the legislative history as supporting their argument, either as “not conflicting” with their interpretation or “not offering support for” the other side’s interpretation. Section 511 was added to the Code as part of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005. The House Report set out that the section was amended “for the purpose of simplifying the interest rate calculation.” H.R. Rep. No. 109-31, at 101 (2005). Prior to this amendment, bankruptcy courts determined interest rates on a ease-by-case basis using equitable factors. But the legislative history fails to shed clear light on the term “applicable non-bankruptcy law.”

We find that the appropriate way to read “applicable nonbankruptcy law” is as referring to any law that is not aimed solely at bankruptcy proceedings. The language of the Bankruptcy Code indicates Congress was granting authority to states to set generally applicable interest rates, but not interest rates specific to bankruptcy proceedings. The doctrine of constitutional avoidance supports this interpretation of the Code because the alternative interpretation raises “constitutional difficulties,” Office of Sen. Mark Dayton v. Hanson, 550 U.S. 511, 514, 127 S.Ct. 2018, 167 L.Ed.2d 898 (2007), as discussed by the bankruptcy court below, In re Bratt, 527 B.R. 303 (Bankr. M.D. Tenn. 2015). A content-restrictive reading of “nonbank-ruptcy law” is supported by our holding that states have the concurrent authority to pass bankruptcy laws. In re Schafer, 689 F.3d at 606.

Nashville and Tennessee argue that the plain language of “nonbankruptcy law” in § 511 of the Code should instead be read to mean any law outside the Code. This interpretation was the preferred reading of the bankruptcy court below. The bankruptcy court cited In re Fowler, 493 B.R. 148 (Bankr. E.D. Cal. 2012), a case that upheld use of a similar tax statute in California. The Fowler court concluded that an interpretation with a clear line — either in the Bankruptcy Code or not — did a better job of furthering Congress’s intent to simplify determination of interest rates in bankruptcy proceedings. Id. at 155-56. While such a bright line rule may lend initial clarity, it can also lead right back to the underlying issue — the relationship between the Code and state law — necessitating constitutional analysis. Our analysis instead begins with the Code. Congress easily could have drafted § 511 to say that the interest rate shall be determined by “laws outside this title” or simply said “laws outside the Bankruptcy Code” if it wanted to refer to laws outside the Code. The language chosen by Congress instead focuses on the content of the relevant law and thereby avoids unnecessary adjudication of constitutional issues. See Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 347, 56 S.Ct. 466, 80 L.Ed. 688 (Brandéis, J., concurring).

We therefore agree with the BAP that the appropriate interest rate as set out in the nonbankruptcy law of Tenn. Code Ann. § 67-5-2010(a)(l) is 12%. The added 6% penalty is not applicable in this bankruptcy case.

C. Preemption and Equal Protection

Based on our statutory interpretation, Tenn. Code Ann. § 67-5-2010(d) is not applicable in this case because it is not a “nonbankruptcy law” as that term is used in § 511(a). We therefore decline to reach the constitutional questions concerning whether the law violates the Supremacy or Equal Protection Clauses of the Constitution.

III. CONCLUSION

Based on the language of the statutes at issue in this case, we AFFIRM the bankruptcy court’s approval of a Chapter 13 plan with a 12% interest rate for delinquent property taxes. Tenn. Code Ann. § 67-5-2010(d) is not an “applicable non-bankruptcy law” as that term is used in § 511(a) because the law is targeted at bankruptcy proceedings, not a law of general applicability. Subsection (a) of that law that sets a 12% interest rate — without the added 6% penalty — therefore governs the interest rate Metro Nashville can charge for overdue property taxes in this bankruptcy case. We affirm the judgment of the bankruptcy court that approved a Chapter 13 plan using a 12% interest rate for overdue property taxes.