REVISED January 6, 2016

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-10287

JOSE E. HERNANDEZ, and all others similarly situated under 29 U.S.C. 

216(b), 

 Plaintiff - Appellant

v.

LARRY MILLER ROOFING, INCORPORATED; LARRY MILLER, 

 Defendants - Appellees

Appeal from the United States District Court 

for the Northern District of Texas

USDC No. 3:11-CV-716

Before STEWART, Chief Judge, KING and HIGGINSON, Circuit Judges.

KING, Circuit Judge:*

Plaintiff–Appellant Jose Hernandez filed a claim for unpaid overtime 

wages in violation of the Fair Labor Standards Act against Defendants–

Appellees Larry Miller Roofing, Inc., and Larry Miller individually. The 

district court stayed the action when LMRI filed a Suggestion of Bankruptcy. 

 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

January 5, 2016

Lyle W. Cayce

Clerk

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LMRI filed a reorganization plan with the bankruptcy court, and Hernandez 

voted to accept the plan. In accordance with this plan, Hernandez received 

thirty percent of his FLSA claim for unpaid wages. Following the confirmation 

of LMRI’s reorganization plan by the bankruptcy court, the district court 

reopened Hernandez’s FLSA case against Miller individually. The court 

granted summary judgment to Miller on the FLSA claim, reasoning that 

LMRI’s reorganization plan released Hernandez’s FLSA claim against both 

LMRI and Miller. Because we interpret LMRI’s reorganization plan as 

releasing only Hernandez’s FLSA claim against LMRI, we REVERSE the 

judgment of the district court and REMAND the case for further proceedings.

I. FACTUAL AND PROCEDURAL BACKGROUND

On April 7, 2011, Plaintiff–Appellant Jose Hernandez filed a claim 

against his former employers, Defendants–Appellees LMRI and Larry Miller, 

the president of LMRI, alleging violations of the FLSA, 29 U.S.C. § 207. Miller 

claimed that while he was employed by LMRI between 2005 and March 2011, 

LMRI did not pay him overtime wages for hours worked beyond forty hours 

each week and did not compensate him for travel to job sites. 

On November 12, 2012, LMRI filed a Suggestion of Bankruptcy under 

Chapter 11 of the United States Bankruptcy Code, and the district court stayed 

Hernandez’s FLSA case. On March 11, 2013, Hernandez filed a proof of claim 

in LMRI’s bankruptcy action, alleging $47,698 in unpaid wages. After LMRI 

filed its “Disclosure Statement to Debtor’s Plan of Reorganization” on July 17, 

2013, Hernandez voted to accept the Bankruptcy Plan of Reorganization (“the 

Plan”) and elected Class 5A treatment. Following a confirmation hearing, the 

bankruptcy court confirmed the Plan on August 29, 2013. 

The Plan included the following relevant provisions:

1.7 “Claim” shall mean any Debt or other right to payment from 

the Debtor which has accrued as of the date of entry of the Order 

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Confirming Plan whether or not such right is reduced to judgment, 

liquidated, unliquidated, fixed, contingent, matured, unmatured, 

disputed, undisputed, legal, equitable, secured or unsecured or can 

be asserted by way of set-off. Claim includes any right or cause of 

action based on a pre-petition monetary or non-monetary default. 

. . . .

1.15 “Debt” shall mean any obligation which is owed by the Debtor, 

alone, and any obligation of the Debtor and any other Person, to 

any Entity. 

. . . .

11.5 The treatment of Claims under the Plan shall govern the 

rights of such holders. . . . The completion of payments under the 

Plan shall be in accord and satisfaction of any and all Claims 

treated under the Plan. Once the Plan payments are completed, 

Claims asserted against the Debtor shall be deemed paid in full, 

including the release of rights to enforce or collect such Claims 

against non-debtor parties. During the duration of the Plan, as 

long as the Reorganized Debtor is making its payments under the 

Plan, all holders of Claims against the Debtor are restrained and 

enjoined from (a) commencing or continuing in any manner, any 

action or other proceeding of any kind with respect to any such 

Claim against the Debtor, its agents or attorneys, its assets or 

third parties also liable for the payment of such Claim . . . . 

. . . .

11.10 The Debtor, Reorganized Debtor, the officers and directors 

of the Debtor and the shareholders shall be discharged and 

released from any liability for Claims and Debts, except for 

obligations arising under this Plan. The exclusive remedy for 

payment of any Claim or Debt so long as the Plan is not in default 

shall be the Plan.

In accordance with the Plan, Hernandez received thirty percent of his claim for 

unpaid wages under the FLSA—$14,309.40—in two equal payments, with the 

final payment issued on February 18, 2014. 

The district court administratively closed Hernandez’s FLSA case 

without prejudice on September 13, 2013. However, after Hernandez filed a 

motion to reopen on January 9, 2014, the district court lifted the stay as to 

Miller individually on February 11, 2014. With Hernandez’s FLSA case 

reopened as to Miller, Miller filed a motion for summary judgment. He argued 

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that the FLSA claim against him was discharged under the Plan and that, in 

the alternative, the doctrine of res judicata precluded Hernandez from 

advancing the claim. Finding that the Plan and the Class 5A payments 

released Miller and “anyone else” from Hernandez’s FLSA claim, the district 

court granted summary judgment in favor of Miller on December 2, 2014.1 

Hernandez subsequently filed a motion to reconsider under Federal Rule of 

Civil Procedure 59(e), arguing that bankruptcy courts lack the authority to 

discharge the debts of non-debtor third parties, such as Miller. The district 

court denied Hernandez’s motion, explaining that his argument was an 

impermissible collateral attack on the judgment of the bankruptcy court. 

Hernandez timely appealed.

II. STANDARD OF REVIEW

We review grants of summary judgment de novo, applying the same 

standard as the district court. Cleveland v. City of Elmendorf, 388 F.3d 522, 

525–26 (5th Cir. 2004). Summary judgment is appropriate if “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). “We construe all facts and inferences 

in the light most favorable to the nonmoving party.” Dillon v. Rogers, 596 F.3d 

260, 266 (5th Cir. 2010) (quoting Murray v. Earle, 405 F.3d 278, 284 (5th Cir. 

2005)). 

III. INTERPRETATION OF THE BANKRUPTCY PLAN

The determination of whether the district court properly granted 

summary judgment turns on the interpretation of the Plan, specifically 

whether the Plan releases Hernandez’s FLSA claims against both LMRI and

Miller. The plain language of the Plan is unambiguous in its release of 

Hernandez’s FLSA claim against LMRI, and Hernandez explicitly agrees that 

 

1 Because the district court granted summary judgment on the release issue, the court

declined to decide the res judicata issue.

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his claim against LMRI was released. However, Hernandez argues that his 

FLSA claim against Miller was not released under the Plan. As a threshold 

matter, we consider the nature of Hernandez’s FLSA claim against Miller.2

Hernandez originally filed a claim for failure to pay overtime wages in 

violation of the FLSA against LMRI and Miller. Under the FLSA, a plaintiff 

can recover unpaid wages from an employer, which the statute defines as “any 

person acting directly or indirectly in the interest of an employer in relation to 

an employee.” 29 U.S.C. § 203(d). As recognized by the Supreme Court, this 

definition is expansive and covers any employer, including a corporate officer, 

with “managerial responsibilities” and “substantial control of the terms and 

conditions of the [employer’s] work.” Donovan v. Grim Hotel Co., 747 F.2d 966, 

971 (5th Cir. 1984) (quoting Falk v. Brennan, 414 U.S. 190, 195 (1973)); see 

also id. at 972 (“The overwhelming weight of authority is that a corporate 

officer with operational control of a corporation’s covered enterprise is an 

employer along with the corporation, jointly and severally liable under the 

FLSA for unpaid wages.” (quoting Donovan v. Agnew, 712 F.2d 1509, 1511 (1st 

Cir. 1983))). Employers under the FLSA are jointly and severally liable for 

unpaid wages. Id.; see also 2 Les A. Schneider & J. Larry Stine, Wage and 

Hour Law § 21:13 (“If FLSA violations are found, the defendant 

company/corporation and defendant individual may be jointly and severally 

liable, that is, each is responsible for the entire amount due . . . .”). 

Given that LMRI and Miller are jointly and severally liable for any FLSA 

violation that may have occurred, we next turn to whether the Plan releases 

Hernandez’s FLSA claim against Miller in addition to his claim against LMRI. 

Assuming, without deciding, that a bankruptcy reorganization plan can 

 

2 We note that, in determining the nature of Hernandez’s FLSA claim against LMRI 

and Miller, we are not deciding whether any FLSA violation has actually occurred. In this 

appeal, we consider only whether Hernandez’s FLSA claim against Miller can proceed in the 

district court, and we do not reach the merits of that claim.

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release claims such as the FLSA claim against Miller in this case, we must 

determine whether the Plan effectively released Hernandez’s FLSA claim 

against Miller. When interpreting the provisions of bankruptcy reorganization 

plans, this court “regularly appl[ies] principles of contract interpretation to 

clarify the meaning of the language” in those plans. Compton v. Anderson (In 

re MPF Holdings US LLC), 701 F.3d 449, 457 (5th Cir. 2012); see also Official 

Creditors Comm. of Stratford of Tex., Inc. v. Stratford of Tex., Inc. (In re 

Stratford of Tex., Inc.), 635 F.2d 365, 368 (5th Cir. 1981) (“The confirmed 

arrangement, however, is tantamount to a judgment of the bankruptcy court. 

Nevertheless, the arrangement represents a kind of consent decree which has 

many attributes of a contract and should be construed basically as a contract.” 

(citation omitted)). “Contract interpretation is a question of law, reviewed de 

novo.” All. Health Grp., LLC v. Bridging Health Options, LLC, 553 F.3d 397, 

399 (5th Cir. 2008). Under contract law, “[t]he language of the contract, unless 

ambiguous, represents the intention of the parties.” Kimbell Foods, Inc. v. 

Republic Nat’l Bank of Dall., 557 F.2d 491, 496 (5th Cir. 1977), aff'd sub nom.

United States v. Kimbell Foods, Inc., 440 U.S. 715 (1979). 

The district court applied principles of contract interpretation to 

determine the meaning of the Plan and concluded that “[t]he language of the 

Plan to which Hernandez agreed clearly releases anyone else from the claims 

asserted by claimants.”3 We disagree. Within the Bankruptcy Code, 11 U.S.C. 

 

3 We note that the Plan language may be somewhat ambiguous as to whether it 

releases Hernandez’s FLSA claim against Miller. The Plan could be read to release all claims 

that could be brought against the Debtor and any other party who is jointly liable with the 

Debtor. However, as previously discussed, multiple employers who are liable for unpaid 

wages under the FLSA are jointly and severally liable for such wages. See Donovan, 747 F.2d 

at 972. Miller’s liability on the FLSA claim is therefore independent of the liability of LMRI 

on that claim. Here, the Plan’s release provisions could also be read as not releasing claims 

against an officer or third party for which the Debtor is severally liable. We do not need to 

determine whether the Plan is ambiguous as to whether it releases Hernandez’s FLSA claim 

against Miller because we conclude that our case law requires more specificity than the Plan 

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§ 524(e) provides that “discharge of a debt of the debtor does not affect the 

liability of any other entity on, or the property of any other entity for, such 

debt.” Republic Supply Co. v. Shoaf, 815 F.2d 1046, 1049 (5th Cir. 1987) 

(quoting 11 U.S.C. § 524(e)). However, we have previously explained that when 

a bankruptcy plan has been confirmed by the bankruptcy court and gone 

unchallenged on direct appeal, a “specific discharge or release” in such a plan 

can release claims against non-debtors.4 In re Applewood, 203 F.3d at 919; see 

also Shoaf, 815 F.2d at 150. Accordingly, to determine whether the Plan 

releases Hernandez’s FLSA claim against Miller, we must examine the 

specificity of the release provisions. A review of our precedent on specificity 

demonstrates that the provisions in the Plan are not sufficiently specific to 

release Hernandez’s FLSA claim against Miller. 

In Shoaf, we held that the bankruptcy court’s confirmation of a “clear 

and unambiguous” reorganization plan that “expressly released” a third party 

from liability on a guaranty barred a subsequent action against that third 

party on the guaranty. 815 F.2d at 1047, 1050. In that case, “[t]he bankruptcy 

judge . . . entered an order confirming the [reorganization plan] expressly 

stating that [that plan] ‘include[d] the release of any guarantees given to a 

creditor of the Debtor which guarantees arose out of the Debtor’s business 

dealings with any creditor of the Debtor.’” Id. at 1049. This language was 

inserted into the plan at the behest of a guarantor who agreed to release 

 

provides to release a claim against a non-debtor. See Applewood Chair Co. v. Three Rivers 

150 Planning & Dev. Dist. (In re Applewood), 203 F.3d 914, 919 (5th Cir. 2000).

4 Parties to a bankruptcy remain free to challenge the release of claims against a nondebtor in the bankruptcy court or on direct appeal. However, as the Supreme Court explained 

in Travelers Indemnity Co. v. Bailey, 557 U.S. 137, 152–54 (2009), once the time for objecting 

to, or directly appealing, a plan has passed, parties may not challenge particular provisions 

of a plan as exceeding the bankruptcy court’s authority. Thus, in this appeal, we do not 

address whether confirmation of the Plan was beyond the authority of the bankruptcy court

under 11 U.S.C. § 524(e); rather, we only interpret the provisions of the Plan as written in 

light of our precedent. 

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$850,000 in life insurance proceeds to the debtor’s estate. Id. at 1048. The 

inclusion of this language was a condition of that guarantor’s release of the 

proceeds, and the final plan included this language while omitting a paragraph 

that provided for a general release. Id. at 1049. Thus, we held that the 

language with respect to third-party guarantors was specific enough to 

discharge those guarantors of liability. 

By contrast, in In re Applewood, we refused to enforce a release against 

a third-party guarantor in a later action because the plan at issue “contained 

no provision specifically releasing the personal guaranties of the [third party].” 

203 F.3d at 919–20. “[W]e decline[d] to extend the holding of Shoaf to 

situations where a plan of reorganization does not contain a specific discharge 

of the indebtedness of a third-party.” Id. at 920. The release language in In 

re Applewood included, in relevant part, the following:

The provisions of the confirmed plan shall bind all creditors and 

parties in interest, whether or not they accept the plan and shall 

discharge the Debtor, its officers, shareholders and directors from 

all claims that arose prior to Confirmation.

Id. at 916. Distinguishing Shoaf, we noted that “[t]he approved final 

reorganization plan [in Shoaf] contained a specific paragraph for the release of 

Shoaf's guaranty.” Id. at 919. Additionally and “[i]mportantly, the final 

reorganization plan confirmed by the bankruptcy court in Shoaf omitted a 

paragraph that provided for a general release, leaving the paragraph 

specifically releasing the Shoaf guaranty in the plan.” Id. (footnote omitted). 

Because the provision in In re Applewood did not specifically release the 

guarantor, who was also an officer, from his personal guaranties, we allowed 

the creditor to proceed with his claim to recover from the guarantor. Id. 

We applied the specificity test developed in Shoaf and In re Applewood

in FOM P.R. S.E. v. Dr. Barnes Eyecenter Inc., 255 F. App’x 909, 912 (5th Cir. 

2007) (per curiam) (unpublished). In that case, FOM leased retail space to 

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Debtor Dr. Barnes Eyecenter, Inc., (“DBEI”). Eyemart, an affiliate of DBEI, 

unconditionally guaranteed DBEI’s obligations under the lease. FOM, 255 F. 

App’x at 910. DBEI filed for Chapter 11 relief, and the reorganization plan 

approved by the bankruptcy court “included a release of claims against 

Eyemart, among others, in exchange for Eyemart’s agreement to subordinate 

its claims to those of all other creditors.” Id. The reorganization plan included 

in pertinent part: 

Any claims held by Debtor’s insiders, including but not limited to 

Debtor's affiliate Eyemart Express, Ltd., shall be subordinated to 

the claims of all other creditors of DBEI's estate, and no 

distributions shall be made on account of same until all other 

claims are paid in full pursuant to this Plan. In return for the 

subordination of their claims, Debtor’s insiders shall not have or 

incur any liability to any person for any claim, obligation, right, 

cause of action or liability, whether known or unknown, foreseen 

or unforeseen, existing or hereafter arising, based in whole or in 

part on any act or omission, transaction, or occurrence from the 

beginning of time through the Effective Date in any way relating 

to DBEI, its Bankruptcy Case, or the Plan; and all claims based 

upon or arising out of such actions or omissions shall be forever 

waived and released.

Id. 

This court concluded that “the language in this case falls somewhere 

between Shoaf and [In re Applewood] with respect to the specificity of the 

release.” Id. at 912. “[H]owever, several factors [led] us to conclude that the 

bankruptcy release does bar [FOM’s] claims.” Id. First, “the release of claims 

was an integral part of the bankruptcy order” just as it was in Shoaf. Id. We 

further noted that “the release of claims was not simply boilerplate language 

that was inserted into the [reorganization plan], but rather a necessary part of 

the [reorganization plan] itself.” Id. “Second, the language in [FOM], while 

not as specific as in Shoaf, [was] more specific than that in [In re Applewood],” 

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as the FOM language “explicitly mention[ed] Eyemart as an entity that 

benefit[ed] from the release.” Id.

Applying the specificity test developed in our earlier cases to the release 

language in this case, we hold that the release provisions in the Plan are not 

specific enough to release Hernandez’s FLSA claim against Miller.5 In FOM, 

this court held that the reorganization plan released claims against a 

guarantor that was mentioned by name in that plan. See FOM, 255 F. App’x 

at 912 (“Here, [the plan] explicitly mentions Eyemart as an entity that benefits 

from the release.”). Conversely, in In re Applewood, we held that the 

boilerplate release language was not sufficiently specific to release claims 

against a third party. 203 F.3d at 919. The release language in this case 

closely resembles the language of the plan in In re Applewood. Miller is not 

identified by name in any of the release language, and, while Miller is an officer 

of LMRI, we held in In re Applewood that a party’s status as an officer 

combined with boilerplate release language is not sufficiently specific.6 Id.

Moreover, nowhere does the Plan mention anything related to a FLSA 

claim or employment law violations more generally. The language in the Plan 

is, if anything, generic. In contrast, the language in Shoaf “include[d] the 

release of any guarantees given to any creditor of the debtor which guarantees 

arose out of the debtor’s business dealings with any creditor of the debtor.” 815 

 

5 Although the Eleventh Circuit declined to adopt our specificity test, it aptly 

summarized the factors we consider in applying this test. Iberiabank v. Geisen (In re FFS 

Data), 776 F.3d 1299, 1308–09 (11th Cir. 2015). In particular, the second, third, and fourth 

factors described by the Eleventh Circuit— “whether the release identifies the released 

parties, whether the release identifies the released claims, and whether the release of those 

claims was an integral part of the bankruptcy order.”—support our holding that the Plan’s 

release language lacked sufficient specificity to release the FLSA claim against Miller.

6 In fact, in all three of the relevant cases, we addressed whether a claim against a 

non-debtor party who was, to some extent, an insider to the bankruptcy plan was released. 

In In re Applewood, the non-debtor was an officer of the bankruptcy company. 203 F.3d at 

919. In Shoaf, the non-debtor was a former officer of the company and a guarantor. 815 F.2d 

at 1047–48. And in FOM, Eyemart was an affiliate of DBEI. 255 F. App’x at 910.

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F.2d at 1054. Thus, the plan in Shoaf was specific to the type of claims it was 

releasing—i.e., guarantees that arose out of the debtor’s business dealings with 

any creditor. Lacking any language relating to FLSA claims, we cannot say 

that the Plan here was specific enough to release Hernandez’s FLSA claim 

against Miller.7 

Ultimately, the language in the Plan at issue here closely approximates 

the generic release language of the In re Applewood plan. Because we held 

that the plan there was not specific enough to discharge a third party’s liability, 

we cannot say that, in this case, the language of the Plan is sufficiently specific 

to release Hernandez’s FLSA claim against Miller. Accordingly, we hold that 

Hernandez may proceed on his FLSA claim against Miller. 

We next turn to whether the doctrine of res judicata bars Hernandez’s 

FLSA suit against Miller, which Miller raised in the district court as an 

alternative ground for barring suit. The district court held that the provisions 

of the Plan released Hernandez’s FLSA claim against Miller and thus declined 

to analyze the res judicata effect of the bankruptcy court’s confirmation of the 

Plan. We typically do not address issues not first addressed by the district 

court. However, as the Eleventh Circuit appropriately observed, in cases such 

as the one before us today, the res judicata inquiry and the interpretation of 

 

7 There is also no indication that the Millers undertook any obligations under the Plan 

with the expectation that any release language would be inserted into the Plan. See In re 

FFS Data, 776 F.3d at 1307 (applying this court’s specificity test and explaining that the 

insertion of release language into a plan in return for a third party undertaking some 

obligation favors a finding that the release language is sufficiently specific). In both Shoaf

and FOM, the release language was inserted into the plans in consideration for something of 

value from a third party. In Shoaf, a guarantor paid $850,000 into the bankruptcy estate in 

return for the insertion of language releasing claims on guarantees into the plan. 815 F.2d 

at 1049. Similarly, in FOM, “Eyemart received the release in consideration for its agreement 

to subordinate its claims.” 255 F. App’x at 912. In this case, the Millers agreed to defer 

payment on personal loans made to LMRI and on deferred unpaid compensation until 

distributions to other unsecured creditors had been paid. However, there is no indication 

that they did this with an expectation that any release language would be inserted into the 

Plan.

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the reorganization plan are essentially one in the same. In re FFS Data, 776 

F.3d at 1307 (“[T]his case is not truly about res judicata, but, rather, the 

interpretation of the reorganization plan”). Accordingly, res judicata does not 

bar Hernandez from proceeding on his FLSA claim against Miller for the same 

reasons that the Plan is not sufficiently specific to discharge Miller’s liability 

on Hernandez’s FLSA claim.8 

As a final matter, we note that Hernandez is not barred from proceeding 

against Miller simply because he has already received compensation from 

LMRI for the underlying FLSA violation. As we have explained, “discharge of 

a debt to the debtor does not affect the liability of any other entity on, or the 

property of any other entity for, such debt.” Shoaf, 815 F.2d at 1049 (citing 

11 U.S.C. § 524(e)). Furthermore, the Ninth Circuit has explained, and we 

agree, that a company’s bankruptcy has no effect on the ability of a plaintiff to 

bring a FLSA claim against an officer. Boucher v. Shaw, 572 F.3d 1087, 1093 

(9th Cir. 2009) (“[O]ur case law regarding guarantors, sureties and other nondebtor parties who are liable for the debts of the debtor leaves no doubt about 

the answer: the [debtor’s] bankruptcy has no effect on the claims against the 

individual managers at issue here.”). 

IV. CONCLUSION

For the foregoing reasons, the judgment of the district court is 

REVERSED, and the case is REMANDED for further proceedings consistent 

with this opinion. 

 

8 In fact, Shoaf, 815 F.2d at 1051–54, In re Applewood, 203 F.3d at 919–20, and FOM, 

255 F. App’x at 911–13, all involved the application of res judicata.

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