author: LESLIE H. SOUTHWICK, Circuit Judge:

text:
    John DOE, Plaintiff-Appellant v. COLUMBIA-BRAZORIA INDEPENDENT SCHOOL DISTRICT, BY AND THROUGH its BOARD OF TRUSTEES, Defendant-Appellee
    No. 16-40882
    United States Court of Appeals, Fifth Circuit.
    FILED May 3, 2017

      Veronica L. Davis, Attorney, West Columbia, TX, for Plaintiff-Appellant.
    Merri Schneider-Vogel, Frances R. Broussard, Thompson & Horton, L.L.P., Houston, TX, Holly Gene Mclntush, Thompson & Horton, L.L.P., Austin, TX, for Defendant-Appellee.
    Before REAVLEY, OWEN, and SOUTHWICK, Circuit Judges.
   LESLIE H. SOUTHWICK, Circuit Judge:

John Doe sued Columbia-Brazoria Independent School District, alleging violations of 42 U.S.C. § 1983, Title IX of the Education Amendments of 1972, Section 504 of the Rehabilitation Act of 1973, and the Americans with Disabilities Act. The district court dismissed for the plaintiffs failure to state a claim. We AFFIRM.

FACTUAL AND PROCEDURAL BACKGROUND

John Doe is a former student of Columbia-Brazoria Independent School District. He claims he was sexually assaulted in the bathroom at Columbia Elementary School sometime in 2002 when he was in the second or third grade. During the assault, a “male student made sexual contact with [Doe] from the rear.” The assailant allegedly threatened Doe to keep him from reporting the assault. Doe’s parents recognized he was upset when he arrived home from school, but Doe initially “denied that anything was wrong.” He later told his mother about the assault but “begged that she not disclose the incident until he graduated[J”

At no time did Doe report the assault to a teacher, administrator, or other school employee. Instead, he claims his teacher should have known he was injured when he returned to the classroom, given his age and the extent of the harm. He further claims the District “knew or should have known” that the other boy had assaulted him or other students. According to Doe, the District failed in its duty to protect him byi among other things, not installing cameras in the school bathrooms. Doe claims he had an unspecified disability at the time of the incident for which “he was often sent [out] of his [class]room to test in a separate place or study in a separate area,” which left him “at a greater risk of being unprotected[.]”

Doe claims he suffered in various ways following the assault. For example, he struggled with his self-esteem and “was rejected by girls he asked to school dances” when he was in seventh grade. Another student later accused Doe of “inappropriate touching.” Doe claims he tried to tell the principal about his own assault when confronted, but the principal “threatened [him] with criminal action and expulsion from school.” Doe’s mother ultimately placed him in counseling to address the mental and physical problems that materialized after his assault.

Doe filed his initial complaint in December 2014. His second amended complaint, the live pleading- here, alleges violations of 42 U.S.C. § 1983; Title IX of the Education Amendments of 1972 (20 U.S.C. § 1681(a)); Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. § 794); and the Americans with Disabilities Act (“ADA”). In July 2015, the District moved to dismiss the second amended complaint for failure to state a claim. The district court summarily denied the motion “without prejudice to refiling.” At a later status conference, the district court offered the District an opportunity to re-urge its motion within a specified time. The District timely filed its second motion to dismiss, which the district court granted.

Doe filed for rehearing on the same day that the district court entered its final judgment. Doe argued that Federal Rule of Civil Procedure 12(g) precluded the District from filing a second motion to dismiss under Rule 12(b)(6). The district court denied the motion without explanation. Doe then filed a second motion for rehearing, which the district court treated as a Rule 59(e) motion to alter or amend the judgment. The district court denied the motion, reasoning that Rule 59(e) is not intended to give litigants a “second bite at the applet.]” Doe timely filed a notice of appeal.

DISCUSSION

“We review the district court’s administrative handling of a case, including its enforcement of the local rules and its own scheduling orders for abuse of discretion.” Macklin v. City of New Orleans, 293 F.3d 237, 240 (5th Cir. 2002). “We review de novo the district court’s dismissal for failure to state a claim under [Federal Rule of Civil Procedure] 12(b)(6).” Nationwide Bi-Weekly Admin., Inc. v. Belo Corp., 512 F.3d 137, 140 (5th Cir. 2007). “Dismissal under Rule 12(b)(6) is appropriate when the plaintiff has failed to allege enough facts to state a claim to relief that is plausible on its face and fails to raise a right to relief above the speculative level.” Id. (quotation marks omitted). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). We assume “all the allegations in the complaint are true[.]” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).

I. Procedural Claims

Doe makes two procedural challenges. First, he claims the district court abused its discretion by permitting the District to file a second Rule 12(b)(6) motion after the original motion was denied. Doe argues that Rule 12(g)(2) bars such filings. The District argues that Rule 12(h)(2) permits successive Rule 12(b)(6) motions and that any error in permitting the second motion was harmless.

Rule 12(g)(2) states that “[e]xcept as provided in Rule 12(h)(2) or (3), a party that makes a motion under [Rule 12] must not make another motion under [Rule 12] raising a defense or objection that was available to the party but omitted from its earlier motion.” Rule 12(h)(2) provides that “[f]ailure to state a claim upon which relief can be granted ... may be raised: (A) in any pleading allowed or ordered under Rule 7(a); (B) by a motion under Rule 12(c); or (C) at trial.” We have previously held that Rule 12(g) does not require consolidation of defenses raised in a second Rule 12(b)(6) motion. Belo, 512 F.3d at 141. In Belo, the plaintiff sued the defendant in the Southern District of Ohio. Id. at 139. There, the defendant brought a motion to dismiss for lack of personal jurisdiction under Rule 12(b)(2) and for failure to state a claim under Rule 12(b)(6). Id. To obviate the personal-jurisdiction issue, the plaintiff moved to transfer the case to the Northern District of Texas. Id. at 139-40. In that court, the defendant again moved to dismiss under Rule 12(b)(6). Id. at 140. This time it argued that the suit violated the Texas statute of limitations, and the district court agreed. Id. On appeal, the plaintiff argued that Rule 12(g)’s consolidation requirement barred the defendant’s second Rule 12(b)(6) motion. Id. at 141. We disagreed and held that “Rule 12(h)(2) explicitly excepts from the consolidation requirement motions based on the defense of failure to state a claim upon which relief can be granted.” Id.

There are procedural distinctions between this case and Belo, including that the Texas statute of limitations would not have been relevant until it was clear that Texas law applied after the transfer. Nonetheless, Belo does not suggest we were relying on the fact that the two Rule 12(b)(6) motions were filed in two different states’ federal district courts. Instead, we said simply that Rule 12(h)(2) allows the filing of a second motion. We apply that same right to this case.

In addition, even if Rule 12(h)(2) should not be interpreted this way, there was no harm in allowing the second motion. The District may have raised new arguments in its second motion by adding information about the special-relationship and state-created-danger exceptions to Section 1983 liability. If so, the District could have presented that same argument in a Rule 12(c) motion for judgment on the pleadings, which Rule 12(h) does not prohibit. See, e.g., Leyse v. Bank of Am. Nat. Ass’n, 804 F.3d 316, 321 (3d Cir. 2015); Albers v. Bd. of Cnty. Comm’rs of Jefferson Cnty., 771 F.3d 697, 703 (10th Cir. 2014). The district court did not abuse its discretion in considering the District’s second Rule 12(b)(6) motion.

Second, Doe argues that the district court abused its discretion by not allowing further discovery or granting a continuance. Doe sought an extension of time to seek records pertaining to his assault and concerning the perpetrator. Doe contends the District deliberately withheld those records. The District opposed the request, maintaining that it “did not have any records pertaining to the accused student, who had left the district more than a decade before the lawsuit was filed.” In response, the district court suggested that Doe depose the District’s custodian of records but made clear that any discovery beyond the deadline must be by agreement of the parties. Doe also contends the district court abused its discretion by ruling on the District’s motion to dismiss three days after the status conference. Despite representing to the court that he would respond to the District’s motion on a certain date, Doe never responded. His failure to respond is especially conspicuous in light of the district court’s strict warning on the matter during the status conference.

A district court has “exceedingly wide” discretion in scheduling. Versai Mgmt. Corp. v. Clarendon Am. Ins. Co., 597 F.3d 729, 740 (5th Cir. 2010). The considerations include “not only the facts of the particular case, but also all of the demands on counsel’s time and the court’s time.” Id. (quotation marks and alterations omitted). Doe can offer no support for his contention that the district court abused its discretion with respect to the discovery deadlines. His motion for a continuance was opposed, and he failed to show that the discovery he sought actually existed. That means Doe did not show that the requested discovery would have helped him defeat the District’s motion to dismiss even if the continuance had been granted. See, e.g., Six Flags, Inc. v. Westchester Surplus Lines Ins. Co., 565 F.3d 948, 963 (5th Cir. 2009). Also, the court indicated that extending the deadline would negatively impact the scheduling demands of other cases. Because the district court has the inherent power to control its own docket, we find no abuse of discretion here. See Landis v. N. Am. Co., 299 U.S. 248, 253-54, 57 S.Ct. 163, 81 L.Ed. 153 (1936).

II. Section 1983 Claims

Doe alleged due-process and equal-protection violations under Section 1983. He argues the District “had an affirmative duty to protect [his] liberty interests,” which include the “right to be free of unjustified intrusions of his personal security.”

A Section 1983 claim requires that a plaintiff “(1) allege a violation of a right secured by the Constitution or laws of the United States and (2) demonstrate that the alleged deprivation was committed by a person acting under color of state law.” James v. Texas Collin Cnty., 535 F.3d 365, 373 (5th Cir. 2008) (quotation marks omitted). The right to be protected by the state from private violence is limited and rests on substantive due process. Doe ex rel. Magee v. Covington Cnty. Sch. Dist. ex rel. Keys, 675 F.3d 849, 853 n.2 (5th Cir. 2012) (en banc). Accordingly, Doe’s case presents no basis for a procedural-due-process or an equal-protection claim.

In this case, Doe’s claim does not arise from the abuse itself because no state actor committed it. Id. at 855 n.3. Instead, there must have been some specific and actionable deficiency on the part of the District that allowed the abuse to occur. Id. That requirement can be seen from Covington, where nine-year-old Jane attended an elementary school that required her parents to authorize any individual who was permitted to take her from school during the day. Id. at 852-53. On six occasions, school personnel allowed Tommy Keyes to take Jane from school, even though he was not authorized by her parents. Id. at 853. On those occasions, Keyes took Jane from the school premises, sexually molested her, and returned her to school. Id. Jane’s guardians sued the school, alleging that the check-out policy “created a danger to students” and was “the direct and proximate cause of Jane’s injury.” Id.

We began our analysis by noting that Jane’s constitutional claim against the school was based not on private conduct but on the school’s allegedly deficient check-out policy. Id. at 855. As a result, her claim could only proceed if she established a special relationship between herself and the school or, potentially, if the state created the danger. Id. at 855-56, 863-65.

Jane could not establish a special relationship. Id. at 863 (citing DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 489 U.S. 189, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989)). The case from which the special-relationship requirement was drawn stated that “nothing in the language of the Due Process Clause itself requires the State to protect the life, liberty, and property of its citizens against invasion by private actors.” DeShaney, 489 U.S. at 195, 109 S.Ct. 998. A complainant and the state have that relationship only “when the State takes a person into its custody and holds him there against his will[.]” Id. at 199-200, 109 S.Ct. 998. The relationship exists “when the state incarcerates a prisoner,” “involuntarily commits someone to an institution,” or places a child in foster care. Covington, 675 F.3d at 856 (citations omitted). Notably, “a public school does not have a special relationship with a student that would require the school to protect the student from harm at the hands of a private actor.” Id. Therefore, the school did not have a constitutional duty to protect Jane from the abuse by Keyes. Id. at 863.

Jane also did not satisfy what we have said would be necessary to establish a claim under the state-created-danger exception — were we to adopt such an exception. Id. at 866. We limit our discussion for several reasons. First, in Covington, we declined to adopt the exception as the law of this Circuit. Id. at 865. Subsequent panels have “repeatedly noted” the unavailability of the theory. Estate of Lance v. Lewisville Indep. Sch. Dist., 743 F.3d 982, 1002 (5th Cir. 2014). Finally, Doe failed to analyze the theory in a meaningful way in his opening brief. The argument is thus forfeited. See United Paperworkers Intern. Union, AFL-CIO, CLC v. Champion Intern. Corp., 908 F.2d 1252, 1255 (5th Cir. 1990).

In summary, Doe’s claims are not based on the private conduct of his assailant but on the District’s shortcomings in monitoring the students, training the teachers, and establishing a reporting system for sexual assault. “[A] State’s failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause.” DeShaney, 489 U.S. at 197, 109 S.Ct. 998. That leaves Doe with only the special-relationship theory, having forfeited the possibility of a state-created-danger argument. There was no special relationship between the plaintiff and the state. Doe has thus failed to prove a constitutional violation.

The Section 1983 claims were properly dismissed.

III. Title IX Claim

The district court summarily dismissed Doe’s claim of a violation, of Title IX. Title IX provides that “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance[.j” 20 U.S.C. § 1681(a). Liability requires several factors to be satisfied:

A school district that receives federal funds may be liable for student-on-student harassment if the district (1) had actual knowledge of the harassment, (2) the harasser was under the district’s control, (3) the harassment was based on the victim’s sex, (4) the harassment was so severe, pervasive, and objectively offensive that it effectively barred the victim’s access to an educational opportunity or benefit, and (5) the district was deliberately indifferent to the harassment.

Sanches v. Carrollton-Farmers Branch Indep. Sch. Dist., 647 F.3d 156, 165 (5th Cir. 2011) (quotation marks and alterations omitted). A plaintiffs failure to plead one of these elements is fatal to the claim. See id. at 166.

The district court found that Doe “fail[ed] to allege that [the District] had actual knowledge of the alleged assault” and so could not establish his Title IX claim. Doe’s complaint alleges the assault took place in a restroom. There is no suggestion that a teacher or other school employee was present. Instead, he complains his teacher should have known about the assault when he returned to class based on his age and the extent of his injuries. The remainder of his complaint belies that assertion, though. Notably, Doe asked his mother not to reveal the fact of the assault until he graduated to avoid the “scorn and shame” that might follow if his peers learned of the attack. Thus, Doe not only failed to plead actual knowledge but admitted the District had no knowledge of his assault.

Doe acknowledges the insufficiency of his pleadings in his appellate brief. “Though not initially pled,” he still “contends that the district had either actual or constructive knowledge of the incident[.]” He claims the District’s “nonproduction” of certain records is indicative of actual knowledge. As noted above, though, the district court properly handled the discovery dispute, crediting the District’s uncon-tradicted representation that the records Doe requested did not exist; Doe further claims that a “semi-autobiographical account” of his assault, allegedly available in his school record, “was maintained by the District in anticipation of litigation.” Upon review, the account Doe referenced details an assault by a gang in a dark alley — not an assault by one person in the school bathroom. That record is not relevant to his claims. Doe thus failed to show the District’s actual knowledge required to establish liability under Title IX. The district court did not err in dismissing this claim.

IV. Section 50k and ADA Claims

Finally, the district court dismissed Doe’s claim of violations of Section 504 and the ADA. Section 504 of the Rehabilitation Act provides that “[n]o otherwise qualified individual with a disability in the United States ... shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance[.]” 29 U.S.C. § 794(a). Similarly, the ADA provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. Cases concerning either section apply to both. Hainze v. Richards, 207 F.3d 795, 799 (5th Cir. 2000).

To the extent Doe’s claims are based on a theory of peer-to-peer harassment, he must prove each of the following:

(1) he was an individual with a disability, (2) he was harassed based on his disability, (3) the harassment was sufficiently severe or pervasive that it altered the condition of his education and created an abusive educational environment, (4) defendant knew about the harassment, and (5) defendant was deliberately indifferent to the harassment.

Lance, 743 F.3d at 996 (citation and alterations omitted). As noted in our discussion of Doe’s Title IX claim, he did not plead sufficient facts to show the District had actual knowledge of the assault. Doe’s peer-to-peer harassment claim fails on that basis.

The District also claims Doe failed to allege he was an individual with a disability or that any harassment was based on a disability. We need not discúss those additional possible defects.

To the extent Doe’s claims are based on a theory of disability-based intentional discrimination, he must allege “(1) that he has a qualifying disability; (2) that he is being denied the benefits of services, programs, or activities for which the public entity is responsible, or is otherwise discriminated against by the public entity; and (3) that such discrimination is by reason of his disability.” Hale v. King, 642 F.3d 492, 499 (5th Cir. 2011). Intentional-discrimination liability requires proof that the “school district has refused to provide reasonable accommodations for the handicapped plaintiff to receive the full benefits of the school program.” D.A. ex rel. Latasha A. v. Houston Indep. Sch. Dist., 629 F.3d 450, 454 (5th Cir. 2010) (citation omitted).

Doe alleges that the District acted in a discriminatory manner by allowing him to test or study in secluded locations without “appropriate accommodation.” “This failure,” he argues, “subjected him to isolation due to his disability which placed [him] in a position of vulnerability [and] led to [the] peer-on-peer molestation incident.” The assault, though, took place in the school bathroom. Doe cannot connect the assault with the District’s permitting him to test outside the classroom. Doe does not claim the District excluded him from any educational benefit. The district court did not err in dismissing these claims.

V. Motions Carried with the Case

Five motions were carried with the case, most of which relate to Doe’s late submission of his initial appellate brief. After his initial brief was submitted, it was twice marked insufficient. Doe thus made the requested changes, and the clerk’s office accepted his brief. The District now argues that Doe made “substantive changes not necessary to correct the errors in the original brief’ without notifying the court or the District. The District moved to strike the portions of Doe’s brief that were not necessary to correct the insufficiencies, and Doe moved to strike the District’s motion as frivolous.

Having decided the merits of the dispute on the briefing before us, we deny each of these motions as moot.

AFFIRMED.

      . The District also requested an extension of time for filing dispositive motions because Doe failed to appear for his deposition and was unable to reschedule before the disposi-tive-motions deadline. The district court granted the request so the parties would have the benefit of Doe’s deposition testimony when drafting any motions for summary judgment.

      . The district court stated this during the status conference:
      The deal is that there’s a Motion to Dismiss for Failure to State a Claim. A response was due. There is no response on file. There needs to be a response on file before I rule. If I rule and there's not a response, then that's the end of it. So you need to be sure that this is a priority. I'm giving you the opportunity. I can’t say when I'm going to rule, but I'm just telling you that the deadline has passed for filing a response. You need to make this a priority and file a response to the Motion to Dismiss.

      . The District also alleges Doe failed to show the District was deliberately indifferent to known harassment, as required by Title IX. Having resolved this issue on the actual-knowledge element, we do not reach the question of deliberate indifference.


source: Caselaw Access Project

author: CARL E. STEWART, Chief Judge:

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee v. Rafael VELASCO, Defendant-Appellant
    No. 16-30341
    United States Court of Appeals, Fifth Circuit.
    FILED May 5, 2017

      Camille Ann Domingue, Assistant U.S. Attorney, U.S. Attorney’s Office, Western District of Louisiana, Lafayette, LA, for Plaintiff-Appellee.
    Prentice Lang White, Esq., Counsel, P.L. White Law Firm, Baton Rouge, LA, for Defendant-Appellant.
    Before STEWART, Chief Judge, and HIGGINBOTHAM and COSTA, Circuit Judges.
   CARL E. STEWART, Chief Judge:

Following a guilty plea for misprision of a felony, the district court applied a four-level sentencing enhancement for use of a dangerous weapon — shoes in conjunction with the “solid prison floor” — to Defendant-Appellant Rafael Velasco’s sentence. Velasco appeals the enhancement. Finding no error, we AFFIRM.

I.

Velasco is an inmate at the Federal Correctional Complex in Oakdale, Louisiana. While there, he and Alonzo Deleon witnessed fellow inmate Christian Sanchez attack Gonzalo Esquivel with a sharp-edged object, leaving Esquivel with a severe cut along the side of his face and down his neck. Instead of reporting the incident, Velasco, Esquivel, and Deleon attacked Sanchez, stomping, kicking, and beating him. As a result of this attack, Sanchez sustained serious injuries, including:

comminuted and mildly displaced fractures, bilaterally, of the nasal bones; comminuted and non-displaced fractures, bilaterally, of the anterior aspect of the maxilla (upper jaw); comminuted mildly displaced fractures of the nasal septum; prominent facial soft tissue swelling; and multiple bruises, contusions, and lacerations to the face and head requiring sti[t]ches.

Thereafter, the men did not cooperate with investigators and provided little to no information regarding the assault on either Esquivel or Sanchez.

On May 13, 2015, Esquivel, Velasco, and Deleon were charged in a one-count superseding indictment with assault resulting in serious bodily injury, in violation of 18 U.S.C. §§ 2,113(a)(6). Velasco ultimately pleaded guilty to a bill of information for misprision of a felony in violation of 18 U.S.C. §§ 4, 113(a)(6). The presentence investigation report (“PSR”) set Velasco’s total offense level at eight, with a criminal history category of V, which resulted in a Guidelines range of fifteen to twenty-one months. The Government objected to the PSR, arguing that the shoes Velasco used to “stomp” Sanchez’s head against the “solid prison floor” were dangerous weapons, requiring a four-level enhancement pursuant to U.S.S.G. § 2A2.2(b)(2)(B).

The district court issued a memorandum ruling, granting the Government the opportunity to introduce evidence of the assault on Sanchez. At the subsequent hearing, the Government presented the testimony of Jasmine Melbert, a corrections officer at the prison. She described the incident, explaining that Deleon, Ve-lasco, and Esquivel took turns “stomping” Sanchez’s head into the floor with “the bottom of their feet.” She gave them “direct orders to stop,” which the men ignored. She went on to explain that Sanchez was defenseless, as Deleon, Velasco, and Esquivel were holding his arms back “punching him in the facial area as he hit the floor and ... stomp[ing and] kicking] him.”

The district court noted that under § 2A2.2(b)(2)(B), “[d]angerous weapons can be almost anything depending on the manner in which they are used.” Finding Melbert’s testimony “clear [and] unequivocal,” and accepting it “as fact,” the district court concluded that the event involved the use of a dangerous weapon and sustained the Government’s objection to the PSR. Applying the four-level enhancement, Ve-lasco’s revised Guidelines range was twenty-seven to thirty-three months. The district court sentenced Velasco to an above-Guidelines sentence of thirty-six months to “run consecutively to any undischarged term of imprisonment” and to be followed by a one year term of supervised release. Velasco timely appealed.

II.

When a defendant objects to the Guidelines calculation in the district court, this court “review[s] the application of the Guidelines de novo and the district court’s factual findings — along with the reasonable inferences drawn from those facts— for clear error.” United States v. Alcantar, 733 F.3d 143, 146 (5th Cir. 2013) (citing United States v. Harris, 702 F.3d 226, 229 (5th Cir. 2012)). Whether an item is a dangerous weapon is a finding of fact. United States v. Estrada-Fernandez, 150 F.3d 491, 497 (5th Cir. 1998) (per curiam) (citing United States v. Schoenborn, 4 F.3d 1424, 1433 (7th Cir. 1993) (“Whether or not an object constitutes a dangerous weapon ... is a question of fact and necessarily depends on the particular circumstances of each case.”)). Therefore, we review this finding for clear error. See United States v. Ortegon, No. 01-51202, 2002 WL 1860281, at *1 (5th Cir. June 17, 2002). Under the clear error standard, a factual finding is clearly erroneous only where, in light of the record, “the court is left with the definite and firm conviction that a mistake has been committed.” United States v. Malone, 828 F.3d 331, 337 (5th Cir.) (quotation and citation omitted), cert. denied, — U.S. -, 137 S.Ct. 526, 196 L.Ed.2d 408 (2016).

Section 2A2.2(b)(2)(B) provides a four-level enhancement if a dangerous weapon, including “any instrument that is not ordinarily used as a weapon,” was used in more than just a threatening manner or simply brandished or discharged. § 2A2.2(b)(2)(B) & cmt. n.l. Thus, whether an item is a dangerous weapon turns on whether “such an instrument is involved in the offense with the intent to commit bodily injury.” Id. The intent to do bodily harm is not measured by the actor’s subjective motivation, but rather, it is measured objectively, by what someone in the victim’s position might reasonably conclude from the assailant’s conduct. United States v. Perez, 897 F.2d 751, 753 (5th Cir. 1990); compare United States v. Nunez-Granados, 546 Fed.Appx. 483, 486-87 (5th Cir. 2013) (per curiam) (finding the enhancement did not apply, because the defendant kicked the officer with the intent to escape, not to cause the officer serious injury), with United States v. Serrata, 425 F.3d 886, 893-94, 909-10 (10th Cir. 2005) (holding that shoes are a dangerous weapon when used to repeatedly stomp a victim’s head, thus revealing a clear intent to do serious harm).

III.

On appeal, Velasco argues that the Government’s interpretation of § 2A2.2 is overly broad and would allow for a four-point enhancement on any defendant that used any object in order to harm his or her victim, including bare hands or feet. He further asserts that the Government’s witness, Melbert, could not say with certainty what kind of shoes the inmates were wearing during the altercation; noting that in Serrata, the ease upon which the Government relies, the assailants were likely wearing steel-toed boots. The Government avers that, based on the Guidelines’ plain text, ordinary objects, even those that are not inherently dangerous, can be considered dangerous weapons if used in a manner intended to inflict bodily injury.

In this case, Velasco’s intent was clear. See United States v. Hatch, 490 Fed. Appx. 136, 137, 139 (10th Cir. 2012) (affirming enhancement where the defendant pulled a man out of his car and kicked at and “stomped on” his head repeatedly, noting that under those facts, the defendant was “clearly using her shoes with the intent to commit bodily injury”). After wit nessing Sanchez and Esquivel’s altercation, Velasco and the other men retaliated against Sanchez, taking turns holding his arms back while the others stomped his head against the hard prison floor. This retaliation resulted in Sanchez’s sustaining serious bodily injury for which he was hospitalized. From Sanchez’s perspective, it is reasonable to conclude that the assailants’ intent was to do him serious bodily harm. See Perez, 897 F.2d at 753; Nunez-Granados, 546 Fed.Appx. at 487. That the shoes were not steel-toed is immaterial. See Serrata, 425 F.3d at 910 (“For the district court to conclude the boots to be a dangerous weapon, it did not have to find that the boots would somehow cause more serious injuries] than any other type of normal footwear....” (quotation omitted)). Accordingly, the district court did not clearly err in applying the four-level enhancement. See Alcantar, 733 F.3d at 146.

IV.

Because the district court did not clearly err under the facts of this case in concluding that shoes in conjunction with the hard ground constitute a dangerous weapon, we AFFIRM.


text:
    Peter Carl BORMUTH, Plaintiff-Appellant, v. COUNTY OF JACKSON, Defendant-Appellee.
    No. 15-1869
    United States Court of Appeals, Sixth Circuit.
    Decided and Filed: February 27, 2017
    Before: COLE, Chief Judge; BOGGS, BATCHELDER, MOORE, CLAY, GIBBONS, ROGERS, SUTTON, COOK McKEAGUE, GRIFFIN, KETHLEDGE, WHITE, STRANCH, and DONALD, Circuit Judges.
   ORDER

A member of the en banc court sua sponte requested a poll in this case pursuant to 6 Cir. I.O.P. 35(e). A majority of the Judges of this Court in regular active service has voted for rehearing en banc of this case. Sixth Circuit Rule 35(b) provides as follows:

The effect of the granting of a hearing en banc shall be to vacate the previous opinion and judgment of this court, to stay the mandate and to restore the case on the docket sheet as a pending appeal.

Accordingly, it is ORDERED, that the previous decision and judgment of this court are vacated, the mandate is stayed, and this case is restored to the docket as a pending appeal.


author: RONALD LEE GILMAN, Circuit Judge.

text:
    Robert COLE, John Adams, Richard S. Lanter (03-73872) and Bernard W. Faust, Lois E. Last, David Reamer, Charles A. Schmidt (04-73656), on behalf of themselves and a similarly situated class; International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Plaintiffs-Appellees, v. MERITOR, INC., fka ArvinMeritor, Inc.; Rockwell Automation, Inc.; Rockwell International Corporation; Defendants-Appellants.
    No. 06-2224
    United States Court of Appeals, Sixth Circuit.
    Argued: October 18, 2016
    Decided and Filed: April 20, 2017

      REARGUED: Bobby R. Burchfield, KING & SPALDING LLP, Washington, D.C., for Appellants. Stuart M. Israel, LEGGHIO & ISRAEL, P.C., Royal Oak, Michigan, for Appellees. ON PETITION FOR REHEARING AND SUGGESTION FOR REHEARING EN BANC: Bobby R. Burchfield, KING & SPALDING LLP, Washington, D.C., for Appellants. ON RESPONSE: Stuart M. Israel, LEGGHIO & ISRAEL, P.C., Royal Oak, Michigan, for Appellees.
    Before: SUHRHEINRICH, GILMAN, and WHITE, Circuit Judges.
   GILMAN, J., delivered the superseding opinion of court in which SUHRHEINRICH and WHITE, JJ„ joined. WHITE, J. (pg. 702), delivered a separate concurring opinion.

SUPERSEDING OPINION

RONALD LEE GILMAN, Circuit Judge.

The key issue in this case is whether the retired employees of Meritor, Inc. and Meritor’s predecessors have a vested right to lifetime healthcare benefits. In this court’s prior decision in Cole v. ArvinMeritor, Inc., 549 F.3d 1064 (6th Cir. 2008), we held that the retirees have such a right. Our decision was controlled by this court’s earlier cases of UAW v. Yard-Man, Inc., 716 F.2d 1476 (6th Cir. 1983), Yolton v. El Paso Tenn. Pipeline Co., 435 F.3d 571 (6th Cir. 2006), and Noe v. PolyOne Corp., 520 F.3d 548 (6th Cir. 2008).

Meritor filed a timely petition to rehear. The petition was held in abeyance for eight years while the parties attempted to settle their dispute, initially on their own and later under the auspices of this court’s Mediation Office. When we were informed in July 2016 that a final impasse had been reached, Meritor’s petition to rehear was placed back on the docket for consideration.

In the intervening eight years, a sea change in the applicable law has occurred. The Supreme Court abrogated the YardMan line of cases in M & G Polymers USA, LLC v. Tackett, — U.S. -, 135 S.Ct. 926, 190 L.Ed.2d 809 (2015), and this court in Gallo v. Moen Inc., 813 F.3d 265 (6th Cir.), cert. denied, — U.S. -, 137 S.Ct. 375, 196 L.Ed.2d 293 (2016), held that a series of collective bargaining agreements (CBAs) materially indistinguishable from those involved here did not provide the retirees with lifetime healthcare benefits.

This ease is now controlled by Tackett and Gallo. We therefore GRANT Meritor’s petition to rehear, REVERSE the judgment of the district court, and REMAND the case for any further proceedings that might be necessary.

I. BACKGROUND

A. Factual background

Rockwell Automation, Inc., a diversified manufacturer that supplied parts to the automotive industry, owned industrial plants throughout the United States. In 1997, Rockwell spun off its automotive division, which eventually became Meritor, Inc. Meritor manufactures automotive integration systems, modules, and components for manufacturers of passenger vehicles, commercial trucks, and trailers. Between the late 1970s and 2003, either Rockwell or Meritor closed the twelve plants at issue in this litigation, which were located in Illinois, Indiana, Kentucky, Michigan, Ohio, and Wisconsin.

All of the hourly employees at the closed plants were represented by the United Automobile, Aerospace, and Agricultural Implement Workers of America (the UAW). Rockwell/Meritor and the UAW have engaged in collective bargaining for decades, producing a succession of CBAs. The CBAs typically covered a three-year period and followed a consistent format, including a master agreement (the National Agreement) and several supplemental agreements addressing different topics that were expressly incorporated into the National Agreement. For example, the Supplemental Insurance Agreement (always Exhibit B) and its accompanying Insurance Program (always Exhibit B-l) addressed the health insurance coverage at issue in this case. Company-paid retiree healthcare benefits were established in 1962, with Rockwell paying half the cost. In the 1965 CBA, Rockwell agreed to pay the full cost of retiree healthcare benefits.

The benefits language at issue in this case first appeared in the 1968 CBA and continued through to the 2000 CBA. Over those years, the benefits changed in modest ways, but the core language regarding retiree healthcare coverage remained essentially unchanged. See Cole v. Arvin-Meritor, Inc. (Cole II), 515 F.Supp.2d 791, 795 (E.D. Mich. 2006). Then, in 2003, Meritor unilaterally eliminated dental, vision, and hearing-aid coverages for the retirees. It also increased the deductibles, copays, and out-of-pocket máximums. Finally, Meritor announced plans in 2005 to eliminate all healthcare benefits as of the next year for the retirees, their eligible dependents, and their surviving spouses.

B. Procedural background

In 2003, the UAW and a class of retirees brought suit against Meritor and Rockwell in the United States District Court for the Eastern District of Michigan. They asserted claims under § 301 of the Labor Management Relations Act, 29 U.S.C. § 185, and § 501(a)(1)(B) of the Employee Retirement Income Security Act (ERISA), 29 U.S.C. § 1132(a)(1)(B). The lawsuit was based on Meritor’s unilateral reduction of benefits and the increase in out-of-pocket expenses for the retirees in 2003. In September 2004, the UAW, along with another class of retirees, filed a substantially identical lawsuit in the Eastern District of Michigan. The cases were eventually consolidated, with the district court certifying a class of approximately 2,900 UAW-represented retirees (along with eligible dependents and surviving spouses), who currently or formerly received retiree healthcare benefits from Meritor.

While the lawsuit was proceeding, Meritor made the 2005 announcement mentioned above that would have eliminated all healthcare benefits for the affected groups. This caused the plaintiffs to file a motion for a preliminary injunction to force Meritor to continue providing those benefits. After an evidentiary hearing, the district court granted the preliminary injunction. Cole v. ArvinMeritor, Inc. (Cole I), 516 F.Supp.2d 850, 880 (E.D. Mich. 2005). The court found that “the contracting parties’ intention to provide lifetime retiree health coverage” was expressed in the “explicit language” of the CBAs and confirmed by prior precedent and a multitude of extrinsic evidence. Id. at 865-67.

Following the entry of the preliminary injunction, each side moved for summary judgment, with Meritor essentially repeating the arguments that it had made at the preliminary-injunction stage. The district court granted the plaintiffs’ motion, denied Meritor’s motion, and permanently enjoined Meritor from altering or canceling retiree healthcare benefits. Cole II, 515 F.Supp.2d at 794. This timely appeal followed.

II. ANALYSIS

A. Applicable law

CBA’s typically create both pension and welfare-benefit plans. M & G Polymers USA, LLC v. Tackett, — U.S. -, 135 S.Ct. 926, 933, 190 L.Ed.2d 809 (2015). Although ERISA imposes “elaborate minimum funding and vesting standards for pension plans,” welfare benefits are excepted from those rules. Id. Welfare-benefit plans, including retiree healthcare, must instead be “established and maintained pursuant to a written instrument.” Id. To determine whether welfare benefits are vested, we must interpret the relevant CBA according to the “ordinary principles of contract law, at least when those principles are not inconsistent with federal labor policy.” Id.

Prior to the Supreme Court’s decision in Tackett, this circuit interpreted CBA healthcare provisions under the guiding principles established in Yard-Man. The Yard-Man court held that “when the parties contract for benefits which accrue upon achievement of retiree status, there is an inference that the parties likely intended those benefits to continue as long as the beneficiary remains a retiree.” Yard-Man, 716 F.2d at 1482. Although this Yard-Man inference was purportedly based on the basic rules of contract interpretation, its application over the years resulted in a de facto presumption in favor of vesting. See Cole, 549 F.3d at 1074. In our prior decision in this case, we in effect applied this presumption to find that the Meritor retirees were entitled to lifetime healthcare benefits.

Yard-Man was abrogated by the Supreme Court in 2015. The Court in Tackett held that “Yard-Man violates ordinary contract principles by placing a thumb on the scale in favor of vested retiree benefits in all collective-bargaining agreements.” Tackett, 135 S.Ct. at 935. It concluded that the so-called Yard-Man inference distorted the attempt to ascertain the intent of the parties, which, “as with any other contract, ... control[s].” Id. at 933 (quoting Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 559 U.S. 662, 682, 130 S.Ct. 1758, 176 L.Ed.2d 605 (2010)).

In applying the Yard-Man inference, this court was also faulted for failing to consider several traditional contractual principles, such as the rule that “contractual obligations will cease, in the ordinary course, upon termination of the bargaining agreement.” Id. at 937 (citing Litton Fin. Printing Div., Litton Business Systems, Inc. v. NLRB, 501 U.S. 190, 207, 111 S.Ct. 2215, 115 L.Ed.2d 177 (1991)). Furthermore, the Tackett Court cautioned that “when a contract is silent as to the duration of retiree benefits, a court may not infer that the parties intended those benefits to vest for life.” Id. at 937.

The Supreme Court ultimately remanded Tackett to this court with instructions to apply these ordinary contract principles. In Tackett v. M & G Polymers USA, LLC, 811 F.3d 204 (6th Cir. 2016) (Tackett III), several additional contract principles were discussed, such as the rule that “when the contract is ambiguous, a court may consider extrinsic evidence to determine the intentions of the parties.” Id. at 208-09. But this court in Tackett III did not resolve the merits of the case, instead sending it back to the district court to interpret the relevant CBA in the first instance using the ordinary principles of contract law.

In Gallo, this court for the first time interpreted a specific CBA according to the contract principles espoused in Tackett and Tackett III. The ordinary principles of contract law were applied to conclude that the CBA before the court was unambiguous in not vesting retiree healthcare benefits for life. Gallo, 813 F.3d at 273-74. Because the facts of Gallo are materially indistinguishable from the facts before us, we reach the same, conclusion in this case.

B. Key terms of the CBAs

The language relevant to the retirees’ claim of lifetime healthcare benefits first appeared in the 1968 CBA. Although a new CBA was renegotiated every three years, the applicable language remained unchanged. We will therefore include the numbering and sections from the 1968 CBA, as we did in our prior decision.

According to the UAW, the language in Exhibit B to the 1968 CBA promised the retirees healthcare benefits for life. The UAW specifically points to Section 5 of Exhibit B, titled “Continuance of Healthcare Coverages Upon Retirement or Termination of Employment at 65 or Older.” Section 5(a) provides as follows:

The Health Care ... Coverages an employee has under this Article at the time of retirement or termination of employment at age 65 or older ... shall be continued thereafter provided that suitable arrangements can be made with the Carrier(s). Contributions for coverages so continued shall be in accordance with Article I, Section 3(b)(6).

(Emphasis added).

Meritor, on the other hand, argues that these healthcare benefits are limited by Exhibit B’s durational clause. The relevant language, contained in Section 8 of Exhibit B to the 1968 CBA, reads as follows:

This [Insurance] Agreement and [Insurance] Program as modified and supplemented by the [Insurance] Agreement shall continue in effect until the termination of the Collective Bargaining Agreement of which this is a part.

The district court held that the “shall be continued thereafter” language unambiguously promised retirees healthcare benefits for life and that the durational clause in Section 8 did not alter this conclusion. Section 8, the court explained, was just a general durational clause that could not trump contractual promises of lifetime benefits. Cole II, 515 F.Supp.2d at 802. We affirmed, citing this circuit’s then-binding precedent in Yolton for the proposition that “[g]eneral durational provisions only refer to the length of the CBAs and not the period of time contemplated for retiree benefits. Absent specific durational language referring to retiree benefits themselves, courts have held that the general durational language says nothing about those retiree benefits.” Cole, 549 F.3d at 1071 (quoting Yolton, 435 F.3d at 580-81). In addition, the Yolton reasoning had been applied to durational clauses that “referred even more specifically to healthcare benefits than does [Section] 8.” Id. at 1073. This court was therefore bound by precedent to conclude that Section 8 did not limit the duration of the retirees’ healthcare benefits. Id. at 1073-74.

Because of the intervening decisions in Tackett and Gallo, the district court’s conclusions are no longer sustainable. The reasoning espoused in Yard-Man, Yolton, and Noe has been abrogated by the Supreme Court. Instead, we must apply ordinary contract principles as instructed by Tackett and as applied in Gallo.

Gallo is legally indistinguishable from the present case. The Gallo court faced an identical issue: whether a series of CBAs entitled a class of retirees to lifetime healthcare benefits. Gallo’s CBA contained terms stating that healthcare benefits for retirees “will be provided,” “will be covered,” and would “[c]ontinue.” Id. at 269. These provisions were determined not to be specific enough to override the CBA’s general durational clause and, therefore, the healthcare benefits did not vest for life. Id. The Gallo court held that “[a]bsent a longer time limit in the context of a specific provision, the general durational clause supplies a final phrase to every term in the CBA.” Id. In making that determination, this court did not look “beyond the contract’s four corners” and ruled that, because the contract was unambiguous, the consideration of extrinsic evidence was inappropriate. Id. at 273-74.

In this case, the 1968 CBA and every subsequent CBA provided that retiree healthcare benefits “shall be continued.” There is no language in Exhibit B to the 1968 CBA that provides a specific expiration date for those benefits. All of the CBAs, however, included a general dura-tional clause that terminated the agreement after three years. See, e.g., Article XVIII, 1968 CBA; Article XIX of the 2000 CBA. In addition, Exhibit B to each CBA had its own durational clause, identical in wording to that previously quoted from Section 8 of the 1968 CBA, that explicitly tied healthcare benefits to the continuing existence of the CBA in question.

The “shall be continued” language in Exhibit B is thus not sufficient to vest the retirees with healthcare benefits for life. As stated in Gallo, “[i]f Tackett tells us anything, ... it is that the use of the future tense without more — without words committing to retain the benefit for life— does not guarantee lifetime benefits.” Id. at 271. Like the CBAs at issue in Gallo, the CBAs between the UAW and Meritor made commitments for “approximately three-year terms — well short of commitments for life.” Id at 269.

The CBAs also contained durational clauses that supplied a concrete date of expiration for retiree healthcare benefits. These durational clauses give meaning to the promise that healthcare benefits “shall be continued.” That is, Meritor guaranteed healthcare benefits only until the expiration of the final CBA, nothing more. See id. This result is in line with the ordinary principles of contract law, which dictate that “contractual obligations will cease, in the ordinary course, upon termination of the bargaining agreement.” Id. at 279 (quoting Tackett, 135 S.Ct. at 937).

Despite the foregoing analysis, the plaintiffs argue that the promise of lifetime retiree healthcare benefits is confirmed by the “contractual context.” It points to two examples: the provision of certain healthcare benefits for specific durational periods of less than life and a section of the 2000 CBA that detailed future premium increases for medical care. Neither of these arguments, however, alters the conclusion that the CBAs are unambiguous in not vesting retiree healthcare benefits for life.

With regard to the first example, the plaintiffs point out that the CBAs “set specific durational limits on continued healthcare for employees on layoff and leave—up to 24 months—but set no duration limits on retiree healthcare.” See 2000-2003 CBA, p. 68. This absence of specific limits on retiree healthcare, the argument goes, shows that the parties intended the benefits to vest for life. But Gallo addressed and rejected a similar argument. Noting that specific and general contractual terms usually work in tandem, the Gallo court held that “[t]he CBAs’ general dura-tional clauses provide a baseline or default rule, a point at which the agreements expire absent more specific limits relevant to a particular term. In the absence of specific language in the retiree healthcare provisions, the general durational clause controls.” Id. at 271-72 (emphasis in original). The same logic applies here.

Along those same lines, the CBAs also provided that pension benefits would last for the life of each retiree. For example, the 1991 CBA defined the basic benefit provided by the pension plan as “[t]he monthly benefit payable under the Plan for the lifetime of a retired or separated Employee!.]” The provision of pension benefits for life, however, actually supports the conclusion that retiree healthcare benefits were not intended to extend for the lifetime of the retirees. That is, we must “assume that the explicit guarantee of lifetime benefits in some provisions and not others means something.” Id. at 270. Meritor and the UAW could have negotiated similar lifetime provisions when negotiating healthcare benefits. Instead, they simply provided that these benefits “shall be continued.” This “difference in language demands a difference in meaning.” Id. The difference has to be that the healthcare benefits were meant to continue for some period less than the lifetime of the retirees.

The plaintiffs second “contractual context” example that purportedly supports their argument is based on the 2000 CBA’s provisions requiring those “retiring on and after October 1, 2002” to “share future premium increases.” These “retiree medical cost caps” provided “for cost-sharing of premium increases above a formula-based threshold, with a downward adjustment or freeze first when a retiree ‘reaches Medicare eligibility’ (i.e., age 65), and later when the retiree ‘reaches age 80.’ ” Cole I, 516 F.Supp.2d at 870. In addition, the 2000 CBA included a “hypothetical example” showing how the caps would apply to a worker retiring “on 1/1/2003 at age 55.” The hypothetical example goes on to describe how the caps would operate when the worker reached age 80 in 2028, 25 years after the final CBA’s expiration. Because the caps were future-oriented, the district court determined that “[t]he only reasonable conclusion is that the agreements intend[ed] that both pension and retiree health benefits [were] to continue for the lifetimes of retirees, eligible dependents, and surviving spouses.” Id.

We respectfully disagree. To be sure, the caps section of the 2000 CBA indicates that the parties contemplated that retiree healthcare benefits would continue. But the continuation of retiree healthcare would have been consistent with every CBA renewal since 1968. Both parties understandably anticipated that these caps would come into play based on this history of renewal. But the fact that they anticipated, or even hoped, that these benefits would continue does not mean that Meritor is bound to provide these benefits for the life of the retirees.

Gallo instead tells us that, although the parties “may have wished that business conditions and stable healthcare costs (hope springs eternal) would permit it to provide similar healthcare benefits to retirees throughout retirement[,] ... the question is whether the two parties signed a contract to that effect.” Gallo, 813 F.3d at 269. Meritor and the UAW signed no such contract. To the contrary, the dura-tional clause in Exhibit B to the 2000 CBA is unambiguous in not vesting retiree healthcare benefits for life.

Because the language of the 2000 CBA is unambiguous, “no basis for going beyond the contract’s four corners exists.” Id. at 274. Legally, that is the end of the matter. Yet one can understandably be puzzled by the apparent discrepancy between the extrinsic evidence that assured the retirees of lifetime healthcare benefits and our conclusion that the 2000 CBA is unambiguous in not providing such vesting. We believe that the answer to this puzzle lies in the fact that retiree healthcare benefits were a feature in every CBA between the parties since 1968. The parties, in other words, simply assumed that the benefits would continue for life because neither side anticipated the upheaval in the automotive industry or had any reason to think that any future CBA would alter the pattern of the past several decades. This likely led to “loose talk” about lifetime healthcare benefits, with no one feeling the need to articulate the implied caveat that these benefits, like all employee benefits not explicitly vested for life, were dependent on the existence of a current CBA between Meritor and the UAW.

In any event, “[t]he first and best way to divine the intent of the parties is from the four corners of their contract and from traditional canons of contract interpretation.” Id. at 273. The language in the 2000 CBA, as interpreted by the ordinary principles of contract law, is unambiguous in not vesting retiree healthcare benefits for life. To rule otherwise would be inconsistent with Gallo, which reached the same conclusion based on a materially indistinguishable series of CBAs. See Salmi v. Sec’y of Health & Human Servs., 774 F.2d 685, 689 (6th Cir. 1985) (holding that “[a] panel of this Court cannot overrule the decision of another panel. The prior decision remains controlling authority unless an inconsistent decision of the United States Supreme Court requires modification of the decision or this Court sitting en banc overrules the prior decision.”).

III. CONCLUSION

For all of the reasons set forth above, we GRANT Meritor’s petition to rehear, REVERSE the judgment of the district court, and REMAND the case for any further proceedings that might be necessary.

CONCURRENCE

HELENE N. WHITE, Circuit Judge, concurring.

I reluctantly concur. Yard-Man is dead. Its demise should have heralded a return to general rules of contract interpretation. Instead, the cry “The king is dead, long live the king!” echoes in the aftermath. Gallo v. Moen, 813 F.3d 265 (6th Cir. 2016), has installed duration clauses as the new absolute determiner of intent, regardless of the actual intent of the parties. I do not agree with Gallo, and would have found the CBA in that case ambiguous and its interpretation subject to parol evidence. However, there is no question that if the CBA in Gallo unambiguously provided for the termination of health-care benefits upon the termination of the CBA, the instant agreement does so as well, given that the duration clause in Section 8 of the instant agreement is more specific than the clause in Gallo.


text:
    IN RE: OHIO EXECUTION PROTOCOL. Angelo Fears, et al., Plaintiffs, Gary Otte; Ronald Phillips; Raymond Tibbetts, Plaintiffs-Appellees, v. Donald Morgan, et al., Defendants-Appellants.
    No. 17-3076
    United States Court of Appeals, Sixth Circuit.
    Decided and Filed: April 25, 2017
    Before: COLE, Chief Judge; BATCHELDER, MOORE, CLAY, ' GIBBONS, ROGERS, SUTTON, McKEAGUE, GRIFFIN, KETHLEDGE, WHITE, STRANCH, and DONALD, Circuit Judges.
   ORDER

A majority of the Judges of this Court in regular active service has voted for rehearing en banc of this case. Sixth Circuit Rule 35(b) provides as follows:

The effect of the granting of a hearing en banc shall be to vacate the previous opinion and judgment of this court, to stay the mandate and to restore the case on the docket sheet as a pending appeal.

Accordingly, it is ORDERED, that the previous opinion and judgment of this court are vacated, the mandate is stayed and this case is restored to the docket as a pending appeal.

The Clerk will direct the parties to file supplemental briefs; this matter is scheduled for oral argument on June 14, 2017.

       Judge Cook recused herself in this case.


author: BERNICE BOUIE DONALD, Circuit Judge.

text:
    IN RE: CONCO, INC., Debtor. Tom Harper; Sandra Krumma; Peggy Sue Leake; Samuel Zane Leake; Jon Souder; Conco Acquirement, LLC; Delfasco LLC, Appellants, v. The Oversight Committee; Conco, Inc., Appellees.
    No. 16-6166
    United States Court of Appeals, Sixth Circuit.
    Argued: March 8, 2017
    Decided and Filed: April 28, 2017

      ARGUED: David S. Kaplan, KAPLAN & PARTNERS LLP, Louisville, Kentucky, for Appellants Harper, Krumma, Leake, and Souder. Cory J. Skolnick, FROST BROWN TODD LLC, Louisville, Kentucky, for Appellants Delfasco and Conco Acquirement. James R. Irving, BINGHAM GREENEBAUM DOLL LLP, Louisville, Kentucky, for Appellee Oversight Committee. Neil C. Bordy, SEILLER WATERMAN LLC, Louisville, Kentucky, for Appellee Conco, Inc. ON BRIEF: David S. Kaplan, Casey L. Hin-kle, KAPLAN & PARTNERS LLP, Louisville, Kentucky, for Appellants Harper, Krumma, Leake, and Souder. Cory J. Skolnick, John S. Egan, Edward M. King, FROST BROWN TODD LLC, Louisville, Kentucky, Gilbert Backenroth, HAHN & HESSEN LLP, New York, New York, for Appellants Delfasco and Conco Acquirement. James R. Irving, John K. Bush, C.R. Bowles, Jr., BINGHAM GREENEB-AUM DOLL LLP, Louisville, Kentucky, for Appellee Oversight Committee. Neil C. Bordy, Keith J. Larson, SEILLER WATERMAN LLC, Louisville, Kentucky, for Appellee Conco, Inc.
    Before: DAUGHTREY, SUTTON, and DONALD, Circuit Judges.
   OPINION

BERNICE BOUIE DONALD, Circuit Judge.

This matter is before the court on appeal from a February 18, 2016 Memorandum Opinion and Order (the “February 18, 2016 Decision”) of the United States Bankruptcy Court for the Western District of Kentucky (“Bankruptcy Court”) in the Chapter 11 bankruptcy case In re Conco, Inc., No. 12-34933-jal, 2016 WL 675549 (Bankr. W.D. Ky.). In that opinion and order, the Bankruptcy Court interpreted Conco Inc.’s Confirmed Plan to prohibit the sale of the ESOP-held Conco stock (the “Equity Security Interests” in the Debtor) from being sold or transferred through December 31, 2018, and enjoined any such sale until that time. The United States District Court for the Western District of Kentucky (“District Court”) affirmed, finding that the Bankruptcy Court properly found that the Confirmed Plan prohibited the sale of the Equity Security Interests through December 31, 2018, and the Disclosure Statement containing identical language was adequate. Since the proper standard of review is abuse of discretion, and the Bankruptcy Court did not abuse its discretion, we AFFIRM the Bankruptcy Court’s opinion and order.

I.

Conco, Inc. (“Conco” or the “Debtor”) manufactures containers' used by the United States Armed Forces and contractors who provide ammunition to the United States Armed Forces. All of the stock of Conco is held by the Conco, Inc. Employee Stock Ownership Plan and Trust (the “ESOP”), a defined contribution employee benefit plan. Appellant-Participants are all former employees of the Conco who are participants in the ESOP (the “Appellant-Participants”).

On November 5, 2012 (the “Petition Date”), Conco filed a petition for voluntary relief under title 11 of the United States Code. Shortly after the Petition Date, and throughout the course of the Chapter 11 proceedings, Delfasco, LLC, (“Delfasco” and together with the Appellant-Participants, the “Appellants”) Conco’s primary competitor, expressed interest in acquiring Conco’s assets. These attempts proved to be unsuccessful. Conco’s main customers, General Dynamics and the United States Department of the Army, opposed Delfas-co’s efforts to acquire control of Conco, with both customers declaring they would terminate their contracts with Conco in the event Delfasco was successful.

On September 3, 2013, Conco filed its initial plan of reorganization, which provided that the holders of Equity Security Interests (referred to in the plan as the “equity securities in the Debtor” and classified as Class 4 interests) would retain those interests, Conco’s business would not be sold, and general unsecured creditors' (the “UCC” or Class 3 creditors) would receive approximately sixteen cents on the dollar for their claims. The creditors committee, among others, objected to this plan. Conco proposed several more plans, each increasing the amount the Class 3 creditors would receive and all containing the same language regarding the Class 4 Equity Security Interest. After extensive arm’s length negotiations with Conco, General Dynamics, and Delfasco, the UCC determined it was in the best interest of the creditor body to reject Delfasco’s efforts to purchase control of Conco.

As a result of the parties’ negotiations, the UCC agreed to support the Debtor’s Third Amended Plan of Reorganization that provided both defined distributions and contingent distributions, which would be funded by the operation of the Conco’s business, which was to continue through December 31, 2018. The UCC supported the Third Amended Plan because it would guarantee them a higher recovery than if Delfasco gained control of Conco.

On November 20, 2014 (the “Confirmation”), the Bankruptcy Court confirmed Conco’s Third Amended Plan of Reorganization (the “Confirmed Plan”) which provides Class 3 “(i) Defined Distributions— general unsecured claim holders approximately $4,848,391, which equates to approximately forty cents on the dollar for their claims; and (ii) Contingent Distributions representing each holder’s pro rata share of fifty percent of Debtor’s ‘annual net operating profit before depreciation’ over the amount projected by Debtor in the forecast years 2015 to' 2018.” Regarding the Equity Security Interests of the Debtor, the Confirmed Plan provides:

On the Effective Date, holders of equity securities in the Debtor shall retain their interests as in existence immediately prior to the Effective Date. Between Confirmation and the Effective Date, the ESOP shall be amended to provide that the Debtor may not contribute money or any other property to the ESOP, nor repurchase any employee-owned equity securities through December 31, 2018, to the extent allowed by applicable law.

Confirmed Plan, Art. V-Treatment of Claims and Interests, Class 4 — Equity Security Interests [Bankr. DN 468-1] 9. The Confirmed Plan contains no other statements regarding the Equity Security Interests. The Third Amended Disclosure Statement (the “Disclosure Statement”), in the “Classes of Claims and Interests” section, contains the identical language quoted above. [Bankr. DN 389] 16. December 31, 2018, is when the last Defined Distributions are scheduled to be made and the last Contingent Distributions will be calculated. After Confirmation, Delfaseo made offers to the ESOP Trustees and the Con-co board of directors to purchase all of the Equity Security Interests. These offers were not accepted.

On July 1, 2015, Appellant-Participants filed a complaint against Conco, the Board of Directors of Conco, Inc., the ESOP, and the Conco ESOP Trustees (the “ERISA Litigation”). Appellant-Participants asserted two claims, one for a declaration that the Conco ESOP Trustees have breached their fiduciary duties under ERISA by not evaluating and responding to offers by Delfaseo to purchase the Equity Security Interests (Count I), and one for injunctive relief to remove the ESOP Trustees and name one or more independent trustees (Count II) (together, the “Complaint”).

Following a motion to transfer and refer the ERISA Litigation to the Bankruptcy Court, the issue of whether Conco’s Confirmed Plan prohibits the sale of the Equity Security Interests, to anyone, before December 31, 2018, was raised. During oral argument on October 19, 2015, Conco contended that an Equity Security Interests sale to Delfaseo would violate the terms of the Confirmed Plan because Del-fasco’s intent would be to close Conco. Thereafter, an oversight committee, which was acting as successor in interest to the UCC (the “Oversight Committee”), had the bankruptcy case reopened and on November.6, 2015, filed a motion to enforce the Confirmed Plan by prohibiting the sale of the Class 4 Equity Security Interests through December 31, 2018 (“Motion to Enforce”). On November 18, 2015, the ESOP Trustees filed a motion seeking clarification of the Confirmed Plan and a declaration of the rights therein (“Motion for Clarification”). Specifically, the ESOP Trustees sought “necessary guidance and a declaration from the Bankruptcy Court as to whether a sale of 100% of shares of ESOP-owned stock to Delfaseo, or any third party, prior to completion of the Amended Plan in 2018, is consistent with and/or violates the Confirmation Order and Amended Plan.” Def. ESOP-Trustes’ Mot. For Clarification [Bankr. DN 516] 4. Delfaseo filed an objection to both motions, Conco filed a response in support of the Motion to Enforce, and Appellant-Participants filed an objection and supplemental objection to the Motion to Enforce and the Motion for Clarification.

On February 18, 2016, the Bankruptcy Court ordered “that the holders of Class 4 Equity Security Interests of Conco, Inc. under the Debtor’s Third Amended Plan of Reorganization are hereby enjoined from selling, transferring, or otherwise divesting themselves of the Equity Interests of Conco, Inc. until January 1, 2019” (the “February 18, 2016 Order”). Order [Bankr. DN 552.] The Bankruptcy Court found that the four corners of the Confirmed Plan, as well the UCC’s abandonment of its objection under the absolute priority rule of 11 U.S.C. § 1129(b) to the ESOP’s retention of the Equity Interest in Conco, evidenced an intent for the Equity Interests not to be sold through December 31, 2018. The Appellants filed a timely appeal to the District Court which affirmed the Bankruptcy Court’s decision on July 7, 2016. The Appellants filed a timely appeal to this court on July 21, 2016.

II.

The district court has original and exclusive jurisdiction over a bankruptcy case under 28 U.S.C. § 1334(a). The bankruptcy court, as a unit of the district court pursuant to 28 U.S.C. § 151, and by a standing order of reference from the district court, has jurisdiction to hear core proceedings, as defined in 28 U.S.C. § 157(b), arising in the bankruptcy case. The District Court had jurisdiction to hear the appeal of the February 18, 2016 Order under 28 U.S.C. § 158(a). This court has jurisdiction over this appeal pursuant to 28 U.S.C. § 158(d).

This case involves the further appeal of the Bankruptcy Court’s Opinion. Therefore, this court will directly review the Bankruptcy Court’s opinion rather than the District Court’s opinion in the initial appeal. See, e.g., McMillan v. LTV Steel, Inc., 555 F.3d 218, 225 (6th Cir. 2009) (“On appeal from a district court’s judgment affirming an order of the bankruptcy court, this Court reviews the bankruptcy court’s order directly, and gives no deference to the district court’s decision.”); Brady-Morris v. Schilling (In re Knight Trust), 303 F.3d 671, 676 (6th Cir. 2002) (“In a case which comes to us from the bankruptcy court by way of an appeal from a decision of a district court, we review directly the decision of the bankruptcy court. We accord no deference to the district court’s decision.”).

III.

“The standard of review on appeal is determined by the nature of the action taken below by the bankruptcy court.” In re Terex Corp., 984 F.2d 170, 172 (6th Cir. 1993); see also In re Dow Corning, Corp., 456 F.3d 668, 674-75 (6th Cir. 2006). Where a bankruptcy court “modifies” a plan, the decision is subject to de novo review. Dow Corning, Corp., 456 F.3d 668, 674-75. Where a bankruptcy court “applies” the Bankruptcy Code, its determinations are also subject to de novo review. Id. Where a bankruptcy court merely “interprets” an ambiguous plan under its equitable authority, the decision is reviewed for an abuse of discretion. Id. The parties differ on the standard of review to be applied in this case.

As this court found in Dow Coming, “[ajlthough the interpretation of an amended plan of reorganization is analogous in many respects to the construction of a contract, we remain mindful that the law of this circuit requires that we review a bankruptcy court’s interpretation of its own decision with significant deference.” Id. at 676 (citing Terex Corp., 984 F.2d at 172). The Appellants nevertheless contend this court should apply a de novo standard of review because the Bankruptcy Court’s ruling constitutes modification of the Confirmed Plan and/or a purely legal contractual analysis.

In order to determine whether a bankruptcy court’s decision “merely interpreted a plan, as opposed to modifying it, ‘we turn to the reasoning and language in the bankruptcy court’s [February 18, 2016] order.’ ” Dow Corning, 456 F.3d at 675 (quoting Terex, 984 F.2d at 172). The Bankruptcy Court reasoned that, “[t]he four corners of the document evidence the parties’ intent and agreement for the ESOP holders and the Equity Interest holders to maintain their stock position until completion of the Amended Plan.” RE 1, Page ID #13. The Bankruptcy Court went on to explain that, “the parties’ intent is evident in the Amended Plan. That intent was for the equity interests to remain as they stood at confirmation until the Amended Plan is completed.” RE 1, Page ID #14. The language of the Bankruptcy Court’s decision makes it clear that it was only interpreting the Confirmed Plan, not modifying it. The Bankruptcy Court referenced the four corners of the Confirmed Plan to determine the parties’ intent when drafting it. There was no language in the Bankruptcy Court’s decision that indicated that it was attempting to modify the Confirmed Plan.

The Appellants further argue, however, that, although the language of the February 18, 2016 decision indicates that the Bankruptcy Court seemingly only interpreted the Confirmed Plan, the Bankruptcy Court essentially modified the Confirmed Plan under the guise of interpretation. The Appellants contend the Bankruptcy Court modified the Confirmed Plan because it added a term: that the Confirmed Plan also prohibited the sale of Equity Security Interests to third parties. This is simply untrue. The prohibition of the sale of Equity Security Interests was necessarily part of the Confirmed Plan when the Bankruptcy Court considered the parties’ intent when drafting it.

Alternately, the Appellants contend that because, in interpreting the Confirmed Plan, the Bankruptcy Court did not exercise its equitable powers, the Bankruptcy Court’s ruling constitutes a purely legal contractual analysis, and thus should be reviewed de novo. This argument is similar to the debtor-appellant’s argument in Te-rex and is based on the premise that because the Bankruptcy Court referenced specific provisions of the Bankruptcy Code it was making a legal analysis as opposed to an equitable one. In Terex, the debtor-appellant argued that “because the bankruptcy court relied on specific provisions of the Bankruptcy Code in arriving at its decision, the standard of review should be de novo.” Terex, 984 F.2d at 172. However, this court:

conclude[d] that although the bankruptcy court referred to explicit provisions of the Bankruptcy Code, it did not rely on or interpret the Bankruptcy Code. Its ruling, therefore, cannot be said to constitute a legal conclusion subject to de novo review. Rather we believe that the bankruptcy court interpreted the Plan, and then exercised its equitable powers to breath[e] life into the provisions of the Plan. Accordingly we review the interpretation of the Plan with full deference and we review the bankruptcy court’s exercise of its equitable powers under an abuse of discretion standard.

Id. at 172 (citations omitted).

Similarly, the Bankruptcy Court’s reasoning here makes it clear that it was exercising its equitable powers to breathe life into the provisions of the Confirmed Plan and was not relying on or interpreting the Bankruptcy Code, even though the Bankruptcy Court referenced the absolute priority rule. The Bankruptcy Court explained, “[a]s Delfasco is Debtor’s direct competitor, the purchase of the Equity Interests gives it an opportunity and incentive to impair the Debtor’s reorganization.” Mem. Op. [Bankr. DN 552] 10. The Bankruptcy Court further reasoned that:

[i]f Delfasco is allowed to defeat the Amended Plan by either the purchase of the Equity Interests or to drain the estate and the ESOP’s resources through protracted litigation, Delfasco will benefit to the detriment of the creditors and the Debtors, who will lose the benefit of the bargain that the parties fought so hard to achieve.

Id.

Similar to the court in Terex, the Bankruptcy Court here referenced a specific provision of the Bankruptcy Code, not to conduct a legal analysis but to exercise its equitable powers in interpreting the Confirmed Plan. Since the UCC was entitled to object to the Confirmed Plan under the absolute priority rule, the UCC’s abandonment of that objection evidences the parties’ intent for the equity interests to remain as they stood at Confirmation until the Confirmed Plan was complete. Therefore, the Bankruptcy Court was not referencing the absolute priority rule of 11 U.S.C. § 1129(b) to make a legal determination, but referenced the specific provision of the Bankruptcy Code as evidence of the Confirmed Plan’s intent. This court has consistently held that these types of decisions by bankruptcy courts are contract interpretations, and thus are reviewed for an abuse of discretion. This court is bound by its own precedent. Therefore, the proper standard of review is for an abuse of discretion.

IV.

Section 1142(b) of the Bankruptcy Code authorizes bankruptcy courts to enforce § 1141 of the Bankruptcy Code by providing that “[t]he court may direct the debtor and any other necessary party ... to perform any other act ... that is necessary for the consummation of the plan.” 11 U.S.C. § 1142 (b). Bankruptcy courts also have the power to interpret the orders that they have previously given. See Travelers Indem. Co. v. Bailey, 557 U.S. 137, 146, 129 S.Ct. 2195, 174 L.Ed.2d 99 (2009). In this circuit, a confirmed plan is considered to be an order of the bankruptcy court; the bankruptcy court has the power to interpret such a plan. See Terex, 984 F.2d at 172; Dow Corning, 456 F.3d at 675-76. “In interpreting a confirmed plan, courts use contract principles, since the plan is effectively a new contract between the debtor and its creditors.” Dow Corning, 456 F.3d at 676; 11 U.S.C. § 1141(a). “State law governs those interpretations,” id. at 676, and, under Kentucky law, the primary objective in construing a contract is to effectuate the intent of the parties. 3D Enters. Contracting Corp. v. Louisville & Jefferson Cty. Metro. Sewer Dist., 174 S.W.3d 440, 448 (Ky. 2005) citing Cantrell Supply, Inc. v. Liberty Mut. Ins. Co., 94 S.W.3d 381, 384 (Ky. Ct. App. 2002). “Any contract or agreement must be construed as a whole, giving effect to all parts and every word in it if possible.” Cantrell Supply, 94 S.W.3d at 384-85 (quoting City of Louisa v. Newland, 705 S.W.2d 916, 919 (Ky. 1986)).

Absent an ambiguity in the contract, the parties’ intentions must be discerned from the four corners of the instrument without resort to extrinsic evidence. Hoheimer v. Hoheimer, 30 S.W.3d 176, 178 (Ky. 2000). “Where a contract is ambiguous or silent on a vital matter, a court may consider parol and extrinsic evidence involving the circumstances surrounding execution of the contract, the subject matter of the contract, the objects to be accomplished, and the conduct of the parties.” Cantrell Supply, 94 S.W.3d at 385; see Ranier v. Mount Sterling Nat’l Bank, 812 S.W.2d 154, 156 (Ky. 1991) (quoting Caudill v. City of Maysville, 297 Ky. 78, 178 S.W.2d 945, 946 (1944)) (“men a contract is silent with respect to a matter vital to the rights of the parties, a court, in construing it, is necessarily compelled to resort to a consideration of the surrounding circumstances and the conduct of the participants indicating their interpretations.”); Bank of New York v. Janowick, 470 F.3d 264, 270-71 (6th Cir. 2006) (same). “A contract is ambiguous if a reasonable person would find it susceptible to different or inconsistent interpretations.” Cantrell Supply, 94 S.W.3d at 385. “The fact that one party may have intended different results, however, is insufficient to construe a contract at variance with its plain and unambiguous terms.” Id. “Although the interpretation of an amended plan of reorganization is analogous in many respects to the construction of a contract, we remain mindful that the law of this circuit requires that we review a bankruptcy court’s interpretation of its own decisions with significant deference.” Dow Corning, 456 F.3d at 676 (citing Terex, 984 F.2d at 172).

The Appellants contend that the plain and unambiguous terms of the Confirmed Plan prohibit only Conco from purchasing the Equity Security Interests, but provide no restriction on the right of the ESOP to sell the Equity Security Interests to a third party. The relevant portion of the Confirmed Plan that discusses the sale of Equity Security Interests reads as follows:

Between Confirmation and the Effective Date, the ESOP shall be amended to provide that the Debtor may not contribute money or any other property to the ESOP, nor repurchase any employee-owned equity securities through December 31, 2018, to the extent allowed by applicable law.

The Bankruptcy Court found that this section of the Confirmed Plan’s language regarding the Equity Security Interests was unambiguous. District Court Opinion, RE 44, Page ID #932 (“The only reference to ambiguity is when the Bankruptcy Court stated ‘[w]hen no ambiguity exists, the Court need only look as far as the four corners of the document to determine the parties’ intent.’ ”). However, the Bankruptcy Court went on to explain that the UCC’s abandonment of the absolute priority rule objection evidences the parties’ intent for the equity interests to remain as they stood at Confirmation until the Confirmed Plan was complete, and ultimately concluded that the Confirmed Plan restricted the sale of the Equity Security Interests to Delfasco through December 31, 2018. Id. at Page ID #933.

The two sentences that restrict the sale of Equity Security Interests do not appear to be unambiguous as the Bankruptcy Court suggests. The Confirmed Plan clearly prevents the sale of Equity Security Interests to the Debtor, but is either silent or ambiguous as to whether the Equity Security Interests can be sold to a third party. Therefore, under Kentucky contract law, which governs the Confirmed Plan, “if a contract is silent on a certain point, the law will imply an obligation to carry out the purpose for which the contract was made.” Old Republic Ins. Co. v. Ashley, 722 S.W.2d 55, 58 (Ky. Ct. App. 1986) (citing Warfield Nat. Gas Co. v. Allen, 248 Ky. 646, 59 S.W.2d 534 (1933)).

The text of the Confirmed Plan is silent on whether equity sales to third parties are permitted. Conco itself is the only expressly forbidden buyer. But the failure to mention other equity restrictions does not prove that all other equity sales are permitted. Silence, here, is simply silence. And the surrounding context shows that the intent of the parties, and the purpose of the Confirmed Plan, cannot accommodate any sales of equity until the Confirmed Plan term expires.

Numerous provisions in the Confirmed Plan show that the parties and the Bankruptcy Court intended the business to run with the same owners and management through the end of 2018. To start, there are the provisions giving defined and contingent, profit-based payments to creditors through December 31, 2018. Bankr. DN 468-1 at 9. The expected contingent payments were based on forecasts about how the company would run from 2015-2018. Id. at 13-15. And the “Post-Confirmation Operations” provision reinforces this expectation. It states that “operations will be directed and managed by Gilbert Everson, who has served as the Debtor’s CEO since prior to the Petition Date,” that Conco “will retain all property of its estate and continue to use it in- the operation of its manufacturing business,” and that based on “[]the Forecast[], the Debtor expects its post-Confirmation operations will generate revenues sufficient to satisfy and discharge ... Claims treated in the Plan.” Id. at 12. All of this points to an expectation that ownership and operations would remain stable through the Confirmed Plan term. Further confirming the point is that the Confirmed Plan runs for only three years, from 2015 through 2018. That short life-span both explains the Confirmed Plan’s silence as to changes in ownership— no one expected a good offer in that time frame — and shows that the parties did not intend to allow a change in ownership while the Confirmed Plan was running.

Oral argument cleared up one final doubt. We asked whether the Confirmed Plan would really prohibit even an overwhelmingly generous purchase offer — one that would be favorable to creditors and shareholders alike. The Appellees conceded that even such a desirable sale would be prohibited under the Confirmed Plan. If a perfect offer was made, they said, the creditors, debtor, and shareholders would all have to agree and then go back to get the Bankruptcy Court’s approval of a new, prepackaged replacement plan. We agree. For these reasons, though the text is silent on third party equity purchases, the best reading of the Confirmed Plan is that it envisions the same owners, managers, and operations through the end of 2018.

The Bankruptcy Court incorrectly concluded that the Confirmed Plan language was unambiguous as to whether the sale of the Equity Security Interests can be sold to third parties. Nevertheless, the Bankruptcy Court properly relied on its understanding of the two years of plan negotiations that led to the Confirmed Plan to determine that the intent of the parties was to prohibit the sale of Equity Security Interests to Delfasco so that Conco could remain as a going concern during the administration of the Confirmed Plan. It is important to note that the sale of the Equity Security Interests to Delfasco is only prohibited through December 31, 2018, when the Confirmed Plan is fully administered. After that date, Delfasco is no longer prohibited from purchasing the Equity Security Interests. The Bankruptcy Court noted that if Delfasco was allowed to purchase the Equity Security Interests during the administration of the estate, Conco’s largest customers would cease doing business with it and the unsecured creditors would potentially not get paid if Conco was closed. Since “a bankruptcy court’s interpretation of its own confirmation order is entitled to substantial deference,” Travelers Indem. Co., 557 U.S. at 151 n.4, 129 S.Ct. 2195 (2009) (compiling cases from the First, Second, Third Fourth, Fifth, Sixth, Seventh, Eighth, and Eleventh Circuits), the Bankruptcy Court did not abuse its discretion when it found that the Confirmed Plan restricted the sale of Equity Security Interests through December 31, 2018.

V.

Section 1125 of the Bankruptcy Code provides that approval of a chapter 11 plan may not be solicited unless “at the time of or before such solicitation, there is transmitted to such holder [of a claim or interest] the plan or a summary of the plan, and a written disclosure statement approved, after notice and a hearing, by the court as containing adequate information.” 11 U.S.C. § 1125(b). While the Bankruptcy Code does not precisely define “adequate disclosure”, the disclosure statement must contain enough information to comport with the purpose of requiring a disclosure statement. 11 U.S.C. 1125(a)(1) defines “adequate information” as:

information of a kind, and in sufficient detail, as far as is reasonably practicable in light of the nature and history of the debtor and the condition of the debtor’s books and records ... that would enable such a hypothetical investor of the relevant class to make an informed judgment about the plan ... and in determining whether a disclosure statement provides adequate information, the court shall consider the complexity of the case, the benefit of additional information to creditors and other parties in interest, and the cost of providing additional information.

“The purpose of the disclosure provisions of Chapter 11 is to provide holders of claims and interests with ‘adequate information’ prior to the acceptance or rejection of a reorganization plan, in order for them to be able to make an informed judgment as to the feasibility of the plan.” In re Microwave Prod. of Am., Inc., 100 B.R. 376, 377 (Bankr. W.D. Tenn. 1989).

There is no dispute that the Disclosure Statement contains the same terms as the Confirmed Plan. Appellants instead contend that because the Disclosure Statement contains the same terms as the Confirmed Plan, which does not explicitly prohibit the sale of Equity Security Interests to third parties, the Disclosure Statement shows that there are no restrictions on the ability to sell stock.

However, the purpose of the disclosure statement requirements is to ensure that holders of claims and interests have adequate information about the Confirmed Plan prior to acceptance or rejection of it. Put simply, if the Confirmed Plan sets forth the terms of the bargain struck by the parties, and the Disclosure Statement mimics those same terms, then the Disclosure Statement necessarily disclosed the bargain. Therefore, the Bankruptcy Court did not abuse its discretion when it found that the Disclosure Statement did not show the absence of a restriction on third party sales.

VI.

Appellants have not met “the extremely difficult burden of demonstrating on appeal that the bankruptcy court incorrectly interpreted its own prior language or intent.” Dow Corning, 456 F.3d at 677; see Terex, 984 F.2d at 172; see In re Settlement Facility Dow Corning Trust, 628 F.3d 769, 772 (6th Cir. 2010) (deference due where “[t]here is simply no denying that [the lower court judge] is much more familiar with this Plan — and with the parties’ expectations regarding it — than we are”). Accordingly, the Bankruptcy Court did not abuse its discretion when interpreting the Confirmed Plan and enjoined the sale of the Equity Security Interests through December 31, 2018. For the foregoing reasons, we AFFIRM the Bankruptcy Court’s decision.

      . The absolute priority rule is set forth in 11 U.S.C. § 1129(b)(2)(B), which provides that, if a dissenting class of holders of unsecured claims is not paid in full, "the holder of any claim or interest that is junior to the claims of such class will not receive or retain under the plan on account of such junior claim or interest any properly....” If the unsecured creditor class votes to reject a plan, holders of equity cannot ever receive anything under the plan unless the dissenting class is paid in full. Equity holders would have their shares can-celled. See, e.g., Bank of Am. Nat’l Tr. & Sav. Ass’n v. 203 N. LaSalle St. P’ship, 526 U.S. 434, 437, 119 S.Ct. 1411, 143 L.Ed.2d 607 (1999).