     Case: 17-40773      Document: 00514661442         Page: 1    Date Filed: 09/28/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                    United States Court of Appeals
                                                                             Fifth Circuit


                                      No. 17-40773                         FILED
                                                                   September 28, 2018
                                                                      Lyle W. Cayce
NEW HAMPSHIRE INSURANCE COMPANY,                                           Clerk

              Plaintiff − Appellant

v.

EFRAIN DOMINGUEZ, Deceased; PERLA CASTILLO-GARCIA,
Claimant/Beneficiary,

              Defendants − Appellees


                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 1:12-CV-107


Before STEWART, Chief Judge, and JONES and ENGELHARDT, Circuit
Judges.

PER CURIAM:*
       This appeal is before us following a remand to the district court in which
New Hampshire Insurance Company (“NHIC”) was offered the opportunity to
“fully brief and argue the standing issue [i.e., standing pursuant to Texas
Labor Code Section 410.251 to appeal the Texas Department of Insurance-
Division of Workers Compensation (“DWC”) decision] in the district court. . . .”


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 17-40773         Document: 00514661442          Page: 2    Date Filed: 09/28/2018


                                       No. 17-40773

N. H. Ins. Co. v. Dominguez, 661 F.App'x. 267, 269-70 (5th Cir. 2016). Both
parties submitted briefs on this issue to the district court, but no further
evidence was submitted; NHIC’s brief appears to have simply copied large
portions of its Fifth Circuit brief for the district court.
      The      court    fully   considered        the   parties’    arguments,     wrote    a
comprehensive opinion concerning the standing issue, and renewed its
conclusion that NHIC was not “aggrieved.” The court dismissed the entire case
without prejudice. NHIC has appealed again. We find no reversible error and
affirm.
      We need not conduct an extended exegesis of the Texas case law, as
required by Erie, because the district court has performed that service. Cases
like Orosco, 1 Diehl, 2 and Just Energy 3 indicate that a party is not “aggrieved,”
and thereby authorized to appeal a DWC decision, simply because it has not
received all the relief that it initially sought. Although none of these cases is
precisely on point, they plainly require an “actual and immediate” injury or
loss to support standing. NHIC could have established standing if it had
provided evidence of any of the financial losses it claims to have suffered, but
it failed to submit, either initially or on remand, evidence demonstrating
NHIC’s losses or liabilities incurred. Nor did NHIC establish its involvement
in Castillo’s state court litigation against Americanos, a suit to which it was
not a party, or explain how that suit would lead to its immediate injury. We
find no legal or factual basis to disagree with the district court’s application of
Texas case law.


      1   Ins. Co. of State of Pa. v. Orosco, 170 S.W.3d 129 (Tex.App.─San Antonio 2005).

      2   City of San Antonio v. Diehl, 387 S.W. 3d 777 (Tex.App.─El Paso 2012).

      3  Just Energy Tex. I Corp. v. Tex. Workforce Comm’n, 472 S.W. 3d 437
(Tex.App.─Dallas 2015).


                                              2
    Case: 17-40773      Document: 00514661442     Page: 3     Date Filed: 09/28/2018


                                  No. 17-40773

      NHIC raises two additional arguments for the first time on appeal. The
first contends that the district court’s decision flies in the face of Tex. Workers’
Comp. Comm'n. v. Garcia, 893 S.W.2d 504 (Tex. 1995), as well as public policy,
because, in contravention of the state Constitution, it denies NHIC any factual
review of the DWC decision. The issue is waived. This court does not consider
arguments never presented to the district court.            Kirschbaum v. Reliant
Energy, Inc., 526 F.3d 243, 257 n.15 (5th Cir. 2008). Second, NHIC asks this
court to certify its standing issue to the Texas Supreme Court because of the
dearth of controlling state case law. We decline to certify; it is time for this
litigation to end.
      The district court’s judgment is AFFIRMED for essentially the reasons
stated by that court.




                                         3
