Take the Fifth

Designated for publication

• Healthy Vision Association v. Abbott, 24-10245, appeal from N.D. Tex.
  • Higginson, J. (Elrod, Dennis, Higginson), First Amendment, sovereign immunity
  • Affirming in part and vacating in part preliminary injunction against state entities to enjoin Texas law limiting information provided under managed vision plans, as an impingement on commercial speech, and affirming in part and vacating in part motion to dismiss on sovereign immunity grounds, affirming the denial of the motion to dismiss as to Commissioner Brown, vacating the denial of the motion to dismiss as to Governor Abbott and Attorney General Paxton, affirming the preliminary injunction insofar as it runs against the Commissioner, vacating the preliminary injunction as against the other defendants, and remanding both orders for modification.
  • The Fifth Circuit affirmed the district court’s denial of sovereign immunity for Commissioner Brown under the Ex parte Young exception, which allows federal courts to enjoin state officials acting unconstitutionally. The Court found that Brown had a statutory duty to enforce the Texas Insurance Code provisions in question, including authority to impose penalties, which constituted a sufficient connection to enforcement. The Commissioner’s refusal to disclaim future enforcement and prior correspondence directed at a regulated entity provided at least a “scintilla” of affirmative enforcement, making her a proper defendant. In contrast, the Court held that Governor Abbott and Attorney General Paxton were not proper defendants under Ex parte Young, as their roles involved only general enforcement authority, not a specific connection to the statute at issue.
  • The Court also affirmed the district court’s issuance of a preliminary injunction against enforcement of H.B. 1696, concluding that the plaintiffs were likely to succeed on their commercial speech claim under the First Amendment. Applying the Central Hudson test, the court found the statute prohibited non-misleading, truthful speech regarding lawful activity—such as informing consumers about which optometrists offer certain products or discounts. The Court held that the law did not directly advance the state’s asserted interests in consumer protection and competition, and was more extensive than necessary to achieve those goals. Because the statute suppressed information beneficial to consumers, it failed intermediate scrutiny and likely violated the First Amendment.
  • The Court rejected the plaintiffs’ associational freedom claim, holding that the statute did not implicate protected forms of association like intimate or expressive associations. It also rejected the equal protection challenge to the statute under intermediate scrutiny, finding the plaintiffs did not show that the speech burdens targeted a suspect class or fundamental right beyond the First Amendment claim already addressed. However, under rational basis review, the Court found that the statute’s distinctions between vision care and other types of health care were plausibly based on legislative concerns over market consolidation and consumer transparency.
  • Given the likelihood of success on the commercial speech claim, the Court concluded that the plaintiffs met the remaining factors for injunctive relief. It emphasized that any loss of First Amendment freedoms, even briefly, constitutes irreparable harm. Furthermore, protecting those freedoms aligns with the public interest, and the balance of equities favored the plaintiffs. Therefore, the district court’s preliminary injunction against enforcement of the statute was properly issued.

• Salinas v. City of Houston, 23-20617, appeal from S.D. Tex.
  • Higginbotham, J. (Elrod, Higginbotham, Southwick), qualified immunity, municipal liability
  • Affirming dismissal under 12(b)(6) and as subject to qualified immunity claims against police officers involved in a fatal shooting of the subject of a high-speed pursuit.
  • On appeal, the Fifth Circuit affirmed the dismissal of Brittany Salinas’s claims brought under § 1983 and the Texas Tort Claims Act (TTCA) related to the fatal police shooting of her husband. The court found that Brittany had standing under the Texas Wrongful Death Statute, and thus did not need to establish standing under the Texas Survival Statute. However, it concluded that Officers Salazar and Garcia were entitled to qualified immunity. Brittany’s claims of unlawful detention and excessive force failed because the officers had reasonable suspicion to stop Salinas—based on prior knowledge of his vehicle and his refusal to stop—and because their use of deadly force occurred only after Salinas repeatedly ignored commands and reached inside his vehicle, which they could reasonably interpret as a threat.
  • The Court reviewed Brittany’s excessive force claim under the Graham v. Connor framework, emphasizing the tense and rapidly evolving nature of the encounter. Although Brittany cited an affidavit suggesting Salinas was disoriented after a crash and unaware of the officers’ commands, the Court found this speculative and insufficient to overcome the reasonableness of the officers’ perceptions. The body-worn camera footage showed repeated commands for Salinas to show his hands and stop reaching before shots were fired. Given these circumstances, the Court held that no Fourth Amendment violation occurred. Consequently, the officers did not violate clearly established law, and Brittany’s motion for further amendment of her complaint was denied as futile.
  • Brittany also challenged the dismissal of her § 1983 and TTCA claims against the City of Houston. She alleged municipal liability on the basis of two purported policies and a failure to monitor officer misconduct, but the Court ruled that without a constitutional violation, municipal liability cannot attach. Her TTCA claims were likewise rejected, as the Court determined that the actions she complained of—namely, the officers’ use of firearms—arose from the same facts as her intentional tort claims, which are barred from TTCA coverage. The City retained its sovereign immunity, and the district court’s dismissal of all claims was affirmed in full.

• Little v. Llano County, 23-50224, appeal from W.D. Tex.
  • Duncan, J. (joined fully by Jones, Smith, Willett, Ho, Duncan, Engelhardt, Oldham, JJ.; joined as to Parts I-III by Elrod, Jones, Smith, Haynes, Willett, Ho, Duncan, Engelhardt, Oldham, Wilson, JJ.); Richman, J., recused; Ho, J., concurring; Higginson, J., dissenting (joined by Wiener, Stewart, Southwick, Graves, Douglas, Ramirez, JJ.); First Amendment, en banc
  • Reversing judgment mandating that library return removed books to shelves.
  • In this case, seven patrons of the Llano County Library sued local officials and the library board, alleging the removal of 17 books from library shelves violated their First Amendment right to receive information. These books included children’s titles with bodily humor, young-adult literature addressing LGBTQ+ themes, a sex-education book, and titles about racism. While the defendants claimed the books were removed under a standard weeding procedure (the CREW method), the district court granted a preliminary injunction, finding plaintiffs likely to succeed in proving that the books were removed due to content and viewpoint discrimination.
  • After the original appeal panel partially affirmed that judgment, the en banc Fifth Circuit reversed the district court, holding that the First Amendment does not include a right to receive information that obligates public libraries to retain or provide specific books. The Court reasoned that while past precedents support a negative right against government interference in private exchanges of information, they do not create a positive right to demand access to government-curated content, such as a library’s collection. The Court found prior reliance on the Supreme Court’s fractured Pico decision and the Fifth Circuit’s earlier decision in Campbell to be misplaced and overruled Campbell, emphasizing that libraries must have discretion in curating their collections.
  • The Court also rejected the notion that libraries must retain offensive or unsuitable material, such as racist or sexually explicit content, simply to avoid viewpoint discrimination. It concluded that recognizing such a constitutional right would lead to impractical judicial oversight of library decisions and undermine librarians’ professional judgment. Since the plaintiffs’ claims rested on a right the Court held does not exist—the right to compel government provision of specific information—their Free Speech claims were dismissed.
  • In further analysis carrying only eight of the 11-judge majority (and therefore the further analysis did not carry a moajority of the Court), the Court analyzed whether a public library’s decisions to include or exclude books from its collection constitute “government speech,” and therefore fall outside the protections of the Free Speech Clause. Relying on Supreme Court precedents such as Pleasant Grove City v. Summum and ALA v. United States, the plurality concluded that government actors engage in expressive conduct when they curate collections of third-party speech. Just as cities convey messages through public monuments or educational agencies through textbooks, libraries communicate by selecting which books they present to the public. This expressive activity lies in the act of choosing what to include, not in the content of the books themselves.
  • The plurality further rejected the idea that public library collections create public forums for private expression. Forum analysis—where the government is limited in how it may regulate private speech on its property—does not apply to curated library collections. Unlike public bulletin boards or open meeting spaces, library bookshelves are not open for public contributions and inherently involve subjective, editorial discretion. Allowing forum principles to dictate book selections would require libraries to adopt a “viewpoint neutral” approach, which would undermine their ability to curate collections responsibly and educationally, leading to impractical outcomes.
  • Applying the Shurtleff framework, the plurality found that all three factors supported the government speech designation. Historically, public libraries have been government institutions created to foster education and moral development, with content selection being central to that mission. The public would also reasonably perceive that it is the government—through the librarian or library board—that chooses which books to make available. Finally, libraries actively control and shape their collections based on educational goals, policy guidance, and institutional discretion, further underscoring the expressive nature of their curation.
  • In conclusion, the plurality held that a public library’s decision to remove books from its shelves is an exercise of government speech. As such, it is not regulated by the Free Speech Clause, and plaintiffs cannot challenge the removal of the 17 books on constitutional free speech grounds. This reasoning affirms the library’s discretion in shaping its collection without being subject to viewpoint neutrality requirements typically imposed on government regulation of private speech.
  • Judge Ho, who had joined fully in the majority and plurality opinion, wrote a separate concurrence. He emphasizes that the First Amendment protects negative rights—freedom from government interference—not positive rights that compel the government to provide information or content. Judge Ho argues that plaintiffs cannot force a public library to carry specific books any more than someone can demand that a public museum display particular art. He stresses that when the government curates collections, whether of books or artwork, it engages in government speech, which is not regulated by the Free Speech Clause. Judge Ho criticizes what he sees as an inconsistency in supporting the right to demand certain library content (as in Little) while denying protection to those who simply ask questions of the government (as in Villarreal), calling such reasoning backward. He challenges the dissent’s distinction between refusing to acquire and removing materials, suggesting there is no constitutional basis for treating those acts differently under the First Amendment. Finally, he rejects the idea that public libraries become censors by curating collections, comparing them to other public institutions like schools and museums that must make content choices without infringing on constitutional rights, and warning that forcing viewpoint neutrality in those choices would make routine curation unworkable. Ultimately, Judge Ho concludes that the First Amendment guarantees the right to read, but not a right to demand the government supply particular materials, and thus agrees with reversing the lower court’s decision.
  • Judge Higginson dissented. The dissenting opinion argues that the majority’s decision to uphold the removal of 17 books from the Llano County public library system undermines the First Amendment and disregards decades of settled legal precedent, particularly Board of Education v. Pico. The dissent presents detailed factual findings from the district court, which concluded that the book removals were politically motivated and not consistent with routine library collection management. Community members, supported by local officials, initiated efforts to target and remove books they found ideologically objectionable, particularly those addressing race, sexuality, and gender identity. Evidence showed that the removal was not neutral or procedural but targeted viewpoints deemed inappropriate by a small group of politically connected individuals.
  • The dissent underscores that public libraries have long been central to the dissemination of ideas and information, echoing the Supreme Court’s recognition that the right to receive information is an essential element of free speech. The majority, it contends, mischaracterizes this right as an impermissible demand for specific content, when in reality, the right protects against government suppression of disfavored ideas. Drawing from Pico and the Fifth Circuit’s own precedent in Campbell, the dissent explains that motivation is key: removing books because of disagreement with their ideas is censorship, not legitimate curation. The district court applied this standard correctly, and the dissent criticizes the majority for substituting its judgment for that of the trial court at the preliminary injunction stage.
  • The dissent further dismantles the plurality’s invocation of government speech doctrine, warning that this framing dangerously shields all viewpoint-based book removals from judicial review. It emphasizes that even the dissenting Justices in Pico agreed the government may not suppress access to ideas in public libraries—a space distinct from schools and not tasked with inculcation. The dissent explains that the removal of books based on ideological opposition violates the First Amendment’s core purpose: to protect against official orthodoxy and allow free thought. It accuses the plurality of misreading or ignoring the consistent principle across Pico’s opinions: that state-motivated censorship is impermissible.
  • In closing, the dissent offers a passionate defense of the role public libraries play in a democratic society. It argues that allowing government officials to dictate what ideas are available to the public subverts self-governance and invites ideological cleansing. Echoing President Eisenhower’s warning against censorship, the dissent affirms that the First Amendment secures not just the right to speak, but the right to read and be exposed to a diversity of ideas. It concludes that the district court acted within its discretion to protect those rights and that the Fifth Circuit should have followed the precedent it has upheld for decades.

• National Labor Relations Board v. AllService Plumbing and Maintenance, Inc., 22-60514, c/w AllService Plumbing and Maintenance, Inc. v. National Labor Relations Board, 23-60293, petitions for review and enforcement of NLRB order
  • Oldham, J. (Dennis, Engelhardt, Oldham), Dennis, J., dissenting; labor law, administrative law
  • Granting employer’s petition for review and denying NLRB’s petition for enforcement of NLRB order to renew nine-year-old orders to fine and punish employer for actions arising from 2013 unionization effort.
  • In this decision, the Fifth Circuit denied the NLRB’)’s request to summarily enforce a decade-old 2013 order, emphasizing the Court’s equitable authority over such enforcement. Unlike most federal agencies, the NLRB lacks self-executing enforcement power; it must seek judicial approval for its orders to carry legal weight. The Court noted that it cannot act as a rubber stamp for the Board and must consider whether enforcement would be just and consistent with congressional policy. Citing longstanding precedent, the Court exercised its equitable discretion to deny enforcement, especially where the delay rendered the order stale and unjust.
  • The Court rejected two key arguments from the NLRB: first, that AllService failed to timely exhaust its objections under Section 10(e) of the National Labor Relations Act; and second, that the enforcement petition from 2013 could be revived despite being dismissed years earlier. The panel found that AllService, a small, minority-owned business, had reasonably raised objections—even if in informal or imprecise terms—and emphasized that procedural rules should be liberally interpreted when applied to pro se parties. The Court also invoked the doctrine of “extraordinary circumstances” to excuse any alleged exhaustion failure, pointing to the Board’s unexplained decade-long inaction.
  • Further, the Court rejected the Board’s argument that it could treat its enforcement effort as a continuation of the 2014 petition dismissed after Noel Canning. Because the Board voluntarily dismissed its prior petition and failed to timely reinstate it under circuit rules, the Court concluded that it had no basis to revive the enforcement effort nearly a decade later. The NLRB’s own admission of “administrative neglect” and lack of explanation for its delay undermined its equitable claim for relief, and the Court firmly denied the request for injunctive enforcement.
  • Turning to AllService’s petition for review, the Court found that the NLRB’s legal conclusions were not supported by substantial evidence. Specifically, it held that the Board erred in attributing anti-union statements and conduct by an employee named Lungrin to AllService, given his minimal authority. Additionally, the Board’s finding that pre-election layoffs were retaliatory lacked evidentiary support, as the Board ignored conflicting testimony and relevant context. The Court emphasized that administrative findings must be based on the entire record, including contrary evidence, and it rejected the Board’s conclusions where they failed that standard.
  • Judge Dennis dissented. He criticizes the majority for creating new and unwarranted barriers to the NLRB’)’s enforcement powers. The dissent argues that the majority disregards clear statutory requirements by considering objections that AllService Plumbing failed to preserve before the Board. It emphasizes that longstanding precedent and NLRB regulations require objections to be raised through written exceptions, which AllService did not do. Furthermore, the majority’s presumption that the Board’s prior voluntary dismissal was “with prejudice” lacks textual support and contradicts general legal principles.
  • The dissent also details the factual background of the case, emphasizing that Joe Lungrin, an experienced supervisor at AllService, played a significant role in the company’s anti-union behavior. Lungrin’s close relationship with management, his influence over daily operations, and his statements opposing unionization contributed to the NLRB’s finding that AllService committed unfair labor practices. The Board concluded that AllService engaged in surveillance, intimidation, and retaliatory layoffs in response to union activity. Despite AllService’s failure to contest these findings at the proper time, the majority nonetheless entertains their objections on appeal.
  • On the legal merits, the dissent maintains that the Board’s order was supported by substantial evidence, including findings that Lungrin acted as both a supervisor and agent of AllService. The ALJ’s determination was based on credible witness testimony and documented events, including Lungrin’s union-related threats and AllService’s retaliatory actions. The majority, the dissent contends, oversteps its authority by reweighing evidence and creating an unprecedented requirement that the ALJ must explicitly refute each piece of contrary testimony in writing. This, according to the dissent, contradicts the Supreme Court’s standard for substantial evidence review.
  • Finally, the dissent rejects the majority’s invocation of equitable principles to deny enforcement, arguing that delays by the Board—while regrettable—do not outweigh the rights of wronged employees. The dissent relies on Supreme Court precedent to assert that Board delays should not benefit employers who violated labor law. It also rebuts the majority’s assumption that the prior dismissal was with prejudice, noting that federal rules and circuit precedent generally treat such dismissals as without prejudice unless explicitly stated. Overall, the dissent warns that the majority’s decision undermines the intent of the National Labor Relations Act and the Board’s ability to enforce labor protections.

Unpublished decisions

• Conner v. Noxubee County Board of Supervisors, 24-60503, appeal from N.D. Miss.
  • per curiam (Davis, Stewart, Southwick), Americans with Disabilities Act
  • Affirming dismissal of plaintiff’s ADA claims against her employer.

• Ruff v. Destination Development Partners, Inc., 23-11-208, appeal from N.D. Tex.
  • per curiam (Ho, Duncan, Oldham), trust law, bankruptcy
  • Reversing district court and bankruptcy court, and according full faith and credit to Texas-court-confirmed arbitration award in favor of plaintiff in adversary action against bankrupt entities created by her son to frustrate her entitlement to proceeds derived from her proceeds from estate of her husband.

• U.S. v. Gaviola, 24-20308, appeal from S.D. Tex.
  • per curiam (Jolly, Jones, Willett), criminal, sentencing
  • Affirming 120-month sentence on conviction of conspiracy to commit healthcare fraud.

• U.S. v. Payne, 24-20473, appeal from S.D. Tex.
  • per curiam (Jolly, Jones, Willett), criminal
  • Affirming conviction of possession of a firearm by a felon.

• U.S. v. Gunner, 24-30382, appeal from W.D. La.
  • per curiam (Higginbotham, Jones, Oldham), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Lee, 24-30622, appeal from W.D. La.
  • per curiam (Jolly, Jones, Willett), criminal
  • Affirming conviction of possession of a firearm by a felon.

• U.S. v. Thomas, 24-50366, appeal from W.D. Tex.
  • per curiam (Elrod, Haynes, Duncan), criminal, sentencing
  • Affirming conviction and 60-month sentence for possession of a firearm by a felon.