Take the Fifth

Designation for publication

• Frias v. Hernandez, 24-10369, appeal from N.D. Tex.
  • Jones, J. (Jones, Oldham, Hendrix, by designation), Oldham, J., concurring; governmental immunity, collateral order doctrine
  • Reversing denial of governmental immunity against police detective for investigation against and prosecution of personnel with a business neighboring the business of the detective’s employer in his moonlighting gig.
  • This case concerns Detective Genaro Hernandez of the Dallas Police Department, who also worked privately for the Stainback Organization. After a 2019 shooting outside The Green Elephant bar, a neighboring business to the Stainback Organization. Hernandez allegedly used his authority as a detective to pursue false criminal charges against the bar’s owner, Shannon McKinnon, and its security guard, Guadalupe Frias. Plaintiffs claim Hernandez’s actions were influenced by his private employer’s interest in targeting the neighboring bar. Despite findings by DPD’s Special Investigation Unit that the plaintiffs had committed no crimes, Hernandez allegedly misrepresented the facts and concealed his conflict of interest in reports submitted to the District Attorney’s Office, resulting in indictments that were later dismissed when his dual employment was revealed during Frias’s trial.
  • McKinnon and Frias filed suit, alleging both federal and state-law claims against Hernandez, including false arrest, malicious prosecution, false imprisonment, and civil conspiracy. While the district court dismissed the federal malicious prosecution claim, it allowed the state-law claims to proceed, finding that Hernandez may have acted outside the scope of his employment due to his conflicting role with the Stainback Organization. Hernandez appealed, arguing he was immune under Texas law because his actions fell within the general scope of his duties as a detective. The appellate court agreed to review the immunity denial under the collateral-order doctrine, which allows immediate appeal of immunity decisions in federal court.
  • The Fifth Circuit reversed the district court, holding that Hernandez was entitled to immunity under the Texas Tort Claims Act. Citing Texas precedent, the court emphasized that an officer’s subjective intent is irrelevant if the alleged misconduct occurred while performing duties generally assigned to him. Even if Hernandez acted with improper motives or violated departmental policy, his investigation and pursuit of charges were still within the scope of his job as a detective. Because the conduct served a public law enforcement purpose—investigating and reporting alleged crimes—Hernandez was immune from the plaintiffs’ state-law claims. The court remanded the case for further proceedings on the remaining federal false arrest claim.
  • Judge Oldham concurred to express his concern with the extension of the collateral order doctrine to state-law immunity defenses. Though fully agreeing with the majority’s reasoning in the case at hand, Judge Oldham critiques the extension of this doctrine beyond its narrow boundaries as established by the Supreme Court. He traces the origins of the collateral-order doctrine to Cohen v. Beneficial Indus. Loan Corp. and emphasizes that it applies only to a small category of decisions that are conclusive, separate from the merits, and effectively unreviewable after final judgment. He notes that the Supreme Court has repeatedly insisted that any expansion of this doctrine should be handled through rulemaking, not judicial fiat—especially since Congress has expressly empowered the Court to define new categories of immediately appealable orders through procedural rules.
  • Judge Oldham outlines three main reasons why denials of state-law immunities should not qualify for collateral-order appeals. First, allowing state law to define the scope of federal appellate jurisdiction improperly delegates federal power to the states. Second, the Supreme Court has never recognized state-law immunities as falling within the collateral-order doctrine. Third, only rights rooted in explicit federal statutory or constitutional guarantees merit such exceptional treatment, and state-law immunities do not meet that bar. He criticizes the Fifth Circuit’s precedent for failing to address these concerns and blindly accepting state classifications of immunities as controlling. Ultimately, he argues that federal appellate courts have an independent duty to determine whether a claimed right justifies interlocutory appeal, and that the court should revisit this area of doctrine when the opportunity arises.

• U.S. v. Texas, 24-50149, appeal from W.D. Tex.
  • Richman, J. (Richman, Oldham, Ramirez). Oldham, J. dissenting; mootness, immigration, preliminary injunction, standing, preemption, political question
  • In 185 pages of majority and dissenting opinions, dismissing as moot, in part, appeal from grant of preliminary injunction against Texas’s S.B. 4, which prohibits noncitizens from illegally entering or reentering the state, after U.S. voluntarily dismissed its complaint; and affirming preliminary injunction as sought by other plaintiffs.
  • The decision arises from Texas’s Senate Bill 4 (S.B. 4), which criminalizes noncitizens unlawfully entering or reentering Texas (§ 51.02, § 51.03) and empowers state judges to issue removal orders (art. 5B.002). The law was immediately challenged by nonprofit legal organizations (e.g., Las Americas) and El Paso County, prompting a preliminary injunction by the district court, which the State appealed.
  • The U.S. government, which initially sued alongside the nonprofits, voluntarily dismissed its appeal after injunction was granted, leaving only private and local plaintiffs in the appeal against DPS Director Martin.
  • The majority concludes that Las Americas has organizational standing: the law interferes with its core mission of providing legal services to immigrants and forces it to allocate resources responding to S.B. 4, satisfying Havens Realty and organizational-injury standards.
  • Relying on Arizona v. United States, the majority holds that S.B. 4 is likely preempted: federal law occupied the field of immigration regulation, as Congress granted sole authority over entry and removal to the federal government. They also find conflict preemption because the state’s removal scheme conflicts with the federal removal process.
  • The majority determines Las Americas will suffer irreparable injury absent an injunction—lost time to assist clients and resource diversion—and that the balance of equities and public interest favor maintaining the injunction to preserve federal supremacy in immigration matters.
  • The majority rejects Director Martin’s political-question argument, finding the case within Article III jurisdiction. Courts are competent to adjudicate constitutional preemption claims, even when states claim broader authority under the War Clause.
  • Judge Oldham, in dissent, vigorously disputes organizational and associational standing. Citing Alliance for Hippocratic Medicine, he contends that Las Americas lacks direct injury—S.B. 4 imposes no obligations on it—and critics’ generalized mission frustration is insufficient for constitutional standing.
  • Judge Oldham opines that S.B. 4 does not intrude on federal domain and instead harmonizes with federal removal when aliens are handed to federal authorities at legal ports. It faults the majority and district court for issuing a sweeping pre-enforcement injunction rather than targeting specific unconstitutional enforcement actions.
  • Judge Oldham further opines the plaintiffs have not shown irreparable harm—voluntary compliance costs are insufficient—and that the district court ignored the balance of equities. He emphasizes that federal prosecutors, including the Biden and Trump administrations, have alternately supported and opposed Texas’s efforts, showing no conflict with federal foreign policy and no need for injunction.

Unpublished opinions

• U.S. v. Phonthalangsky, 24-10485, appeal from N.D. Tex.
  • per curiam (Higginbotham, Jones, Oldham), criminal, sentencing
  • Affirming conviction and 51-month sentence for possession of a firearm by a felon.

• U.S. v. Sotelo, 24-10907, appeal from N.D. Tex.
  • per curiam (Higginbotham, Jones, Smith), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Peralta, 24-10982, appeal from N.D. Tex.
  • per curiam (Elrod, Smith, Graves), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Sanchez, 24-11097, appeal from N.D. Tex.
  • per curiam (Graves, Willett, Wilson), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Hall, 24-30605, appeal from W.D. La.
  • per curiam (Wiener, Ho, Ramirez), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Porter, 24-30657, appeal from W.D. La.
  • per curiam (Higginbotham, Jones, Oldham), criminal, hearsay
  • Affirming conviction of conspiracy to distribute and to possess with the intent to distribute methamphetamine, upholding admission of testimony under the coconspirator exception to the hearsay rule.

• Johnson v. Johnson, 24-30763, appeal from M.D. La.
  • per curiam (Elrod, Southwick, Engelhardt), prisoner suit
  • Dismissing as frivolous appeal of dismissal of Louisiana state prisoner’s sec. 1983 claim.

• U.S. v. Manguera, 24-40623, appeal from S.D. Tex.
  • per curiam (Barksdale, Higginson, Wilson), criminal, sentencing
  • Affirming conviction of possession of a firearm not registered to him in the National Firearms Registration and Transfer Record, but vacating 84-month sentence and remanding for resentencing.

• U.S. v. Medrano-Ramos, 24-50154, appeal from W.D. Tex.
  • per curiam (Barksdale, Stewart, Ramirez), criminal
  • Affirming convictions of knowingly and recklessly transporting an alien within the United States and conspiracy to do the same.

• U.S. v. Weste, 24-50576, appeal from W.D. Tex.
  • per curiam (Higginbotham, Jones, Oldham), criminal, search and seizure
  • Affirming conviction of cyberstalking and sending threatening interstate communications, upholding denial of motion to suppress.

• U.S. v. Downer, 24-50609, appeal from W.D. Tex.
  • per curiam (Higginbotham, Jones, Oldham), criminal
  • Affirming conviction of illegal reentry.

• U.S. v. Moore, 24-50695, c/w 24-50698, appeal from W.D. Tex.
  • per curiam (Wiener, Ho, Ramirez), criminal, sentencing
  • Affirming conviction and 120-month sentence for possession of a firearm by a felon.

• U.S. v. Gordillo-Lopez, 24-50853, appeal from W.D. Tex.
  • per curiam (Jones, Richman, Southwick), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Graham, 25-60022, appeal from S.D. Miss.
  • per curiam (Wiener, Ho, Ramirez), criminal, sentence reduction
  • Affirming denial of motion for sentence reduction.

• U.S. v. Jones, 24-60629, appeal from S.D. Miss.
  • per curiam (Haynes, Higginson, Douglas), criminal, sentence reduction
  • Affirming denial of motion for sentence reduction.