Take the Fifth

Designated for publication

• A.A.R.P. v. Trump, 25-10534, appeal from N.D. Tex.
  • per curiam (Ho, Wilson, Ramirez), Ho, J., concurring; appellate jurisdiction
  • On remand from the U.S. Supreme Court with an order for the Fifth Circuit to hear the appeal expeditiously, ordering the case to be set on the next available oral argument panel.
  • Judge Ho concurred, noting that the Court had to comply with a U.S. Supreme Court order, but disagreeing that the Court has appellate jurisdiction.
  • In this case, the Petitioners—identified as members of the foreign terrorist group Tren de Aragua—sought emergency relief that was denied by the district court due to their unreasonable demand for a ruling within 42 minutes. The Fifth Circuit initially ruled unanimously that it lacked jurisdiction to consider the appeal under 28 U.S.C. § 1292(a)(1) because the district court had not effectively denied relief; rather, it simply gave the government 24 hours to respond, a standard and reasonable practice. However, the Supreme Court reversed this decision, interpreting the district court’s 14-hour delay—starting from a 12:34 a.m. filing—as an effective refusal to act, over a strong dissent from Justice Alito.
  • Judge Ho’s concurring opinion criticized the Supreme Court’s decision as an unfair mischaracterization of the district judge’s conduct. The judge had been managing a complex criminal trial involving child victims while simultaneously addressing the emergency motion and gave reasonable time for a response. The concurrence emphasized that expecting district judges to respond to emergency filings in the middle of the night, as if courts operated like 24-hour diners, sets a dangerous precedent and undermines the norms of procedural fairness. The judge’s conduct was described as diligent and responsible, and criticism of his approach was seen as damaging to judicial integrity.
  • Finally, the concurrence lamented the broader implications of the Supreme Court’s handling of the case, warning that it could distort procedural norms and unfairly privilege certain litigants. It defended the President’s and executive officials’ right to be heard in court proceedings and highlighted the importance of judicial impartiality and respect for all parties, regardless of their political affiliations. Despite the perceived flaws in the Supreme Court’s decision, the concurrence acknowledged the lower court’s duty to comply with it, and thus agreed to proceed with the appeal as directed.

• Weatherbe v. Texas Tech University System, 19-11325, appeal from N.D. Tex.
  • Richman, J. (Dennis, Richman, Haynes), Dennis, J., dissenting; First Amendment, qualified immunity
  • Reversing denial of qualified immunity to university defendants, holding that the plaintiff professor’s First Amendment right to not be retaliated against for his anti-tenure views was not clearly established at the time of the alleged retaliatory conduct.
  • The Court began by reaffirming the legal standard for qualified immunity, which shields government officials from liability unless they violate clearly established constitutional or statutory rights. To overcome qualified immunity, a plaintiff must show that a reasonable official would have known that the specific conduct in question was unlawful, based on well-established precedent. The Court emphasized that broad legal principles are insufficient; the law must be particularized to the facts of the case. It found the district court erred in denying qualified immunity to Nail by relying on a general proposition—that officials may not retaliate against employees for speaking on matters of public concern—rather than analyzing whether the specific speech at issue was clearly protected.
  • Turning to the First Amendment retaliation claim, the Court clarified the multi-part test required to establish such a violation. While some elements were not contested or raised on appeal, the Court focused on two key points: whether Wetherbe’s speech was on a matter of public concern and whether Nail’s actions constituted adverse employment decisions. The Court concluded that Wetherbe’s criticism of academic tenure did not qualify as a clearly established matter of public concern at the time of the alleged retaliation (2013–2015). There was no binding precedent holding that such speech by a university professor was constitutionally protected in that context, and thus Nail could not have had “fair notice” that his conduct was unlawful.
  • Lastly, the Court addressed the parties’ request to consider claims for declaratory and injunctive relief against another defendant, Williams. However, the district court had not ruled on those claims, and the order under review only pertained to the qualified immunity defense raised by Nail. As a result, the court declined to address the unruled claims, noting they were not properly before it on appeal.
  • Judge Dennis dissented. He argued that the majority wrongly granted qualified immunity to Nail, a university official accused of retaliating against Professor Wetherbe for publicly criticizing academic tenure. He contends that Wetherbe sufficiently alleged an adverse employment action—through demotion, reduced compensation, and diminished academic responsibilities—and that his speech, focused on the broader public debate over tenure rather than personal job grievances, was clearly protected by the First Amendment. Citing precedents like Salge, Moore, and Kennedy, the dissent maintains that, by 2013–2015, the law was clearly established that public employee speech addressing systemic issues of public concern is protected, and reasonable officials should have known that punishing Wetherbe for such speech was unconstitutional. Thus, the dissent would affirm the district court’s denial of qualified immunity and allow the case to proceed.

• Adair v. Stutsman Construction, L.L.C., 24-30273, appeal from M.D. La.
  • Ho, J. (Higginbotham, Willett, Ho), Willett, J., dissenting; bankruptcy, res judicata
  • Vacating bankruptcy court’s order that debtor’s debt to contractor-creditor was not subject to an unclean hands defense and therefore not dischargeable because the contractor had obtained a default judgment in state court against the debtor, and remanding for the district court to consider the debtor’s unclean hands defense.
  • In 2016, Adair hired Stutsman, a Louisiana construction company licensed for up to $75,000 in home repairs, to fix his flood-damaged home. Although Freedom Mortgage issued over $150,000 for the project in multiple checks payable to both parties, Adair deposited the final check into his own account after questioning the work’s completeness. When efforts to resolve the dispute failed, Stutsman sued in state court and obtained a default judgment after Adair failed to appear. Stutsman later pled guilty to licensure and mold remediation violations following an investigation, and when Adair filed for bankruptcy, Stutsman sought to exempt the state court judgment from discharge under 11 U.S.C. § 523(a)(6), which the bankruptcy and district courts upheld.
  • On appeal, the Fifth Circuit reversed, finding that Adair’s “unclean hands” defense—based on Stutsman’s licensing violations—was improperly barred by issue preclusion. The Court explained that the state court default judgment lacked specific factual findings, and thus the issues had not been “actually litigated,” as required for preclusion under Louisiana law. Additionally, Adair’s unclean hands defense, an equitable argument, was unavailable to him under Louisiana’s civil code, which limits defenses in contract disputes to strict legal standards. Because this equitable defense had neither been litigated nor available in state court, the Fifth Circuit held it was not precluded and remanded the case for further proceedings.
  • Judge Willett dissented. He would affirm the bankruptcy court’s ruling that Adair’s debt to Stutsman was nondischargeable under 11 U.S.C. § 523(a)(6), finding it resulted from willful and malicious conduct. The judge disagrees with the majority’s view that Adair’s “unclean hands” defense was wrongly precluded, asserting that although the defense was technically equitable and first raised in bankruptcy court, it merely reframed an issue—Stutsman’s lack of licensure—that Adair could have raised in state court but chose not to. Even if considered on the merits, the defense would fail, as there was no evidence of fraud or bad faith by Stutsman, who acted in good faith and offered to resolve remaining issues. In contrast, Adair knowingly withheld over $70,000 after the work was certified complete, failed to substantiate his claims of repair expenses, and even asked his bank whether depositing the check might be illegal—conduct the bankruptcy court found willful, malicious, and lacking credibility, thus justifying nondischargeability.

Unpublished

• Trevino v. NFN NLN, 24-10411, appeal from N.D. Tex.
  • per curiam (Graves, Engelhardt, Oldham), prisoner suit
  • Affirming dismissal of civil commitment detainee’s suit for lack of jurisdiction.

• U.S. v. Medford, 24-10685, appeal from N.D. Tex.
  • per curiam (Barksdale, Haynes, Wilson), criminal, sentencing
  • Affirming 24-month sentence on revocation supervised release.

• U.S. v. Nava-Ortiz, 24-10905, appeal from N.D. Tex.
  • per curiam (Graves, Willett, Wilson), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Donofrio, 24-40002, c/w 23-40586, appeal from E.D. Tex.
  • per curiam (Ho, Engelhardt, Douglas), criminal, sentencing, forfeiture
  • Affirming conviction under Anti-Kickback Statute, but vacating sentence and forfeiture order and remanding for further proceedings.

• U.S. v. Mendez, 24-40027, appeal from S.D. Tex.
  • per curiam (Wiener, Ho, Ramirez), criminal
  • Affirming conviction of possession of a firearm and ammunition by a felon.

• U.S. v. Ude, 24-40505, appeal from E.D. Tex.
  • per curiam (King, Southwick, Engelhardt), criminal, sentencing, guilty plea
  • Affirming guilty plea conviction and 80-month sentence for conspiracy to commit wire fraud.

• Neuens v. Tulino, 24-40747, appeal from S.D. Tex.
  • per curiam (Clement, Engelhardt, Douglas), employment discrimination, Title VII
  • Affirming dismissal of wrongful termination claims.

• U.S. v. Castro-Lopez, 24-50794, appeal from W.D. Tex.
  • per curiam (Graves, Willett, Wilson), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Harrison, 24-60091, appeal from S.D. Miss.
  • per curiam (Barksdale, Haynes, Wilson), criminal, sentencing
  • Affirming conviction and 397-month sentence for conspiracy to possess, with intent to distribute, methamphetamine and fentanyl.

• Franks v. City of Oxford, 24-60295, appeal from N.D. Miss.
  • per curiam (Elrod, Higginbotham, Ramirez), employment discrimination
  • Affirming dismissal of employment discrimination and retaliation claims.