Take the Fifth

Designated for publication

• U.S. v. Duffey, 22-10265, opinions from N.D. Tex.
  • per curiam (Southwick, Engelhardt, Wilson), criminal, First Step Act
  • On remand from the U.S. Supreme Court, vacating defendants’ sentences that it had previously affirmed, and remanding for resentencing under the First Step Act in light of Hewitt v. United States, 145 S. Ct. 2165 (2025).

• Jenkins v. Tahmahkera, 24-10724, appeal from N.D. Tex.
  • Wilson, J. (Higginson, Ho, Wilson); Ho, J., concurring; Higginson, J., dissenting; timeliness, sec. 1983, Rule 60(b)
  • Affirming dismissal of plaintiff’s claims arising from the death of her husband in custody as untimely under Texas’s two-year statute of limitations.
  • On July 31, 2019, Robert Miller was arrested on multiple outstanding warrants and, being homeless, chose jail over paying a fine. He died the next day in Tarrant County Jail. His wife, Shanelle Jenkins, was never notified by authorities but instead learned of his death through a newspaper article. Despite making repeated requests, Jenkins was unable to obtain information from Tarrant County or the Texas Rangers. Nearly two years later, on July 30, 2021, she sued the Tarrant County Sheriff’s Office, alleging wrongful death and excessive force. Her complaint, however, lacked detailed factual support, and she delayed investigation until after filing suit, relying only on public records requests and phone calls rather than discovery tools.
  • The district court dismissed Jenkins’s case with prejudice in February 2022 due to insufficient factual allegations. Just after dismissal, Tarrant County and the Texas Department of Public Safety (TDPS) provided over 250 pages of records revealing details about Miller’s death. Jenkins sought to reopen her case under Rule 60(b), but the court denied her motion, holding that the evidence was readily discoverable had she exercised diligence. On appeal, the Fifth Circuit affirmed, emphasizing her failure to investigate properly and her lack of due diligence in pursuing discovery before the statute of limitations expired.
  • Undeterred, Jenkins filed a second lawsuit on November 30, 2023, this time naming ten individual defendants and providing more factual detail. She claimed she first learned the general cause of Miller’s death from a New York Times article in November 2021. She alleged excessive force and wrongful death, contending that Tarrant County and TDPS concealed information to protect the individuals involved. The district court dismissed the new claims with prejudice as time-barred, reasoning that Jenkins’s cause of action accrued by August 2019, when she knew Miller had died in custody, or at the latest by July 2021 when she filed her first lawsuit. The court also rejected her equitable tolling arguments, finding neither fraudulent concealment by the named defendants nor diligence on her part.
  • On appeal, the Fifth Circuit affirmed. It held that Jenkins’s claims accrued in August 2019 because she knew her husband died in custody and had enough information to begin investigating. Her filing of the July 2021 complaint further confirmed she believed excessive force caused Miller’s death, even if she lacked specific identities. The court rejected her equitable tolling arguments, concluding that Texas’s fraudulent concealment doctrine did not apply since she alleged concealment only by non-defendants and failed to act diligently to discover responsible parties. Given her lack of timely action and available legal remedies she failed to pursue, her November 2023 complaint was barred by Texas’s two-year statute of limitations and properly dismissed with prejudice.
  • Judge Ho concurred. The concurrence agrees with the majority but emphasizes that statutes of limitations must be strictly enforced, even when doing so seems harsh or unjust. Courts have consistently refused to hear cases filed even slightly late, including a death penalty appeal filed one day late and a major antitrust case filed just a few days late. Here, the violation was more substantial: Shanelle Jenkins had two years to pursue her claims but failed to exercise due diligence, as the court has already noted in a prior unanimous ruling. Judge Ho underscores that enforcing limitations periods promotes diligence, efficiency, and finality, which are legitimate legislative interests. Upholding these rules consistently, even in seemingly unfair outcomes, preserves the integrity of the legal system and the rule of law.
  • Judge Higginson dissented. The dissent emphasizes that dismissals under Rule 12 require taking the plaintiff’s allegations as true. Despite Plaintiff’s persistent efforts to obtain accurate information, both Tarrant County and the Texas Department of Public Safety stonewalled her, leading to the dismissal of her first lawsuit in February 2022. Only after that dismissal did the government finally release records, which revealed the likely cover-up and the individuals involved. Armed with that information, Jenkins filed a second lawsuit in November 2023, naming the responsible officers. The dissent calls the majority’s affirmance of the time-bar dismissal of this second lawsuit both counterintuitive and legally flawed, as it ignores Jenkins’s allegations of a coordinated concealment effort and punishes her for the government’s obstruction. It further criticizes the majority’s suggestion that Jenkins should have distrusted the official account and immediately assumed foul play in 2019, when all available evidence pointed to a natural cause of death. Determining when a reasonable person would suspect wrongdoing, and whether equitable tolling applies in light of concealment, are factual issues that should not have been resolved at the dismissal stage.
  • Finally, the dissent underscores that claims under § 1983 accrue only when a plaintiff knows both the injury and who inflicted it—facts Jenkins lacked until the government released records in 2022. Equating knowledge of an injury with knowledge of individual defendants, as the majority does, creates a dangerous loophole: government officials can avoid accountability simply by concealing officer identities until limitations run. The dissent warns this undermines § 1983’s twin goals of compensation and deterrence, layering unfair procedural barriers on top of qualified immunity. Because Jenkins should at least have the chance to develop the factual record on concealment and tolling, the dissent would reverse and remand rather than affirm dismissal.

• Space Exploration Technologies Corp. v. NLRB, 24-50627, c/w Energy Transfer, L.P. v. NLRB, 24-40533, c/w Bertha v. NLRB, 24-10855, appeals from W.D. Tex., S.D. Tex., and N.D. Tex.
  • Willett, J. (Wiener, Willett, Duncan), Wiener, J., dissenting in part; labor law, jurisdiction, separation of powers
  • Affirming district courts’ injunctions of NLRB proceedings on unfair-labor-practice complaints brought against petitioner employers, on basis of unconstitutionality of the NLRB-ALJ structure regarding appointments and removals of NLRB members and ALJs.
  • Congress established the National Labor Relations Board (NLRB) in 1935 to enforce the National Labor Relations Act, the cornerstone of U.S. labor law. The agency relies on administrative adjudication, where administrative law judges (ALJs) issue initial rulings subject to review by the Board—a five-member body of presidential appointees. Board Members may be removed only for neglect of duty or malfeasance, while ALJs are insulated by a “for-cause” removal process overseen by the Merit Systems Protection Board (MSPB), which itself is shielded from presidential control. This dual-layer removal scheme has raised significant constitutional questions under Article II’s separation-of-powers framework.
  • In this case, three employers—SpaceX, Energy Transfer, and Findhelp—challenged the constitutionality of the NLRB’s structure before their unfair-labor-practice proceedings began. Each company argued that the dual for-cause protections for Board Members and ALJs unlawfully insulated them from presidential oversight. District courts in Texas granted preliminary injunctions halting NLRB proceedings, holding that the employers demonstrated both a likelihood of success on the merits and irreparable harm. The NLRB appealed, arguing lack of jurisdiction and abuse of discretion, but the appellate court disagreed on both points.
  • The appellate court first held that the Norris-LaGuardia Act, which restricts federal courts from issuing injunctions in labor disputes, did not bar jurisdiction here. The disputes were not about wages, hours, or union representation but instead about structural constitutional claims concerning Article II. Applying the Thunder Basin factors, the court reasoned that (1) waiting until after the proceedings would foreclose meaningful judicial review, (2) the claims were wholly collateral to labor law issues, and (3) the NLRB lacked expertise in constitutional separation-of-powers questions. Thus, the district courts properly exercised jurisdiction to issue injunctions.
  • Turning to the merits, the court found that the removal protections for NLRB ALJs are unconstitutional. Drawing from its own precedent in Jarkesy v. SEC, it held that ALJs, as inferior officers wielding significant authority, cannot be shielded by two layers of for-cause removal. Similarly, while precedent on Board Members was less settled, the court concluded that their insulation was also unconstitutional because they wield substantial executive power, lack statutory partisan-balance requirements, and differ from the “mirror image” structure of the FTC approved in Humphrey’s Executor. Thus, both ALJs and Board Members were likely unlawfully insulated from presidential removal.
  • Finally, the court emphasized that being subjected to unconstitutional proceedings is itself an irreparable injury, citing Axon and Cochran. The harm lies not in the eventual outcome but in the process itself, which undermines accountability and violates separation-of-powers principles. Balancing equities, the court noted that halting unconstitutional agency proceedings causes no cognizable harm to the government, while preserving the public’s interest in lawful governance. Accordingly, the appellate court affirmed the preliminary injunctions, ensuring that the employers would not be forced into proceedings before an unconstitutionally structured agency.
  • Judge Wiener dissented in part diverging sharply on whether the Employers are entitled to a preliminary injunction regarding the removability of NLRB board members. The dissent argues that the Employers failed to demonstrate irreparable harm, a necessary requirement for such relief. Citing Collins v. Yellen and subsequent circuit rulings, the dissent stresses that challenges to unconstitutional removal provisions differ from challenges to unlawful appointments. While the latter renders officers “illegitimate” and their actions void, the former requires proof of additional causal harm since the officers remain validly appointed. The dissent criticizes the majority for adopting a “here-and-now” injury standard without requiring this causal connection, warning that such an approach lowers the burden of proof and creates a split with other circuits, including the Tenth, Sixth, and Second.
  • The dissent further contends that the majority’s reliance on Axon Enterprise v. FTC and Cochran v. SEC is misplaced. Those cases addressed jurisdiction and standing—not the substantive entitlement to injunctive relief. According to the dissent, the Supreme Court has explicitly cautioned against extending discussions of standing to questions of relief. Other circuits have recognized this distinction and required parties to prove a nexus between unconstitutional removal protections and harm suffered in proceedings. By failing to impose this requirement, the majority effectively rewrites precedent and risks converting every constitutional removal challenge into automatic grounds for preliminary injunctions. The dissent concludes that the Employers should have been required to allege and prove causal harm and, because they failed to do so, it would reverse the district court’s decision granting injunctive relief.

• Spectrum WT v. Wendler, 23-10994, appeal from N.D. Tex.
  • Southwick, J. (Dennis, Southwick, Ho), Ho, J., dissenting; First Amendment
  • Reversing denial of preliminary injunction against university administration’s cancellation of LGBT+ student organization’s drag show, reversing as to certain defendants and affirming as to others.
  • The case concerns Spectrum WT, an LGBT+ student organization at West Texas A&M University, which planned a charity drag show to raise funds for The Trevor Project. The university had approved the group’s use of Legacy Hall, a campus venue historically open to a wide variety of student and non-student events, including a prior drag show. The event was structured as “PG-13,” with safeguards against lewdness. However, President Walter Wendler canceled the event, claiming drag shows discriminate against women and lack dignity, comparing them to blackface performances. Spectrum WT and its officers sued, alleging violations of their First Amendment rights, and sought a preliminary injunction.
  • The district court denied the injunction. It held that drag shows were not clearly established as expressive conduct under the First Amendment, giving Wendler qualified immunity on damages claims. The court reasoned the plaintiffs had not shown a likelihood of success on the merits or irreparable harm. It deemed Legacy Hall a limited public forum and emphasized the potential lewdness of drag performances. While the court allowed claims for injunctive relief to proceed, it denied preliminary relief, finding the students’ rights not sufficiently clear or immediate to warrant intervention.
  • On appeal, the Fifth Circuit first clarified the standards for preliminary injunctions: plaintiffs must show a likelihood of success on the merits, irreparable injury, a favorable balance of equities, and alignment with public interest. The central issue was whether drag shows constitute protected expressive conduct. The court rejected Wendler’s argument that a “particularized message” must be discernible, citing Hurley v. Irish-American GLIB, which held that expression need not be narrowly articulated to fall under First Amendment protection. It distinguished cases like Spence and FAIR, noting that theater, music, and even nude dancing have long been treated as expressive mediums.
  • The court found the plaintiffs’ drag show clearly expressive. Context was crucial: the event was organized by an LGBT+ group, ticketed, staged, and intended to raise money for LGBT+ suicide prevention. Against that backdrop, the performance unmistakably conveyed solidarity with and support for the LGBT+ community. While not every instance of cross-dressing conveys such meaning, here the message was both intentional and likely to be understood, satisfying First Amendment requirements. The court concluded that drag shows of this nature are expressive conduct and fall within constitutional protection.
  • Turning to forum analysis, the Fifth Circuit held Legacy Hall is a designated public forum, not a limited one. It had been broadly available to student and non-student groups for diverse events, including political forums, religious services, and prior drag shows. Restrictions on speech in designated forums are subject to strict scrutiny. Because Wendler’s ban was content-based—targeting drag shows specifically—it required a compelling justification narrowly tailored to that end. Wendler offered no such justification, and thus the ban failed constitutional scrutiny. The plaintiffs were therefore likely to succeed on the merits.
  • The court also found irreparable harm, noting that loss of First Amendment freedoms, even briefly, constitutes such injury. Plaintiffs showed a real and ongoing threat, as Wendler canceled a subsequent 2024 drag show and declared no drag shows would ever be permitted. Balancing equities and public interest also favored plaintiffs, as injunctions protecting free speech are inherently in the public interest. Accordingly, the Fifth Circuit reversed the district court’s denial of preliminary relief. It ordered an injunction against President Wendler and Dr. Thomas, while dismissing claims against Chancellor Sharp for lack of jurisdiction. The case was remanded for entry of the injunction.
  • Judge Ho, though typically strongly pro-First Amendment, particularly when such challenges are brought by socially conservative groups, dissented. The dissent argues that Spectrum WT’s claim of a First Amendment right to host a drag show at West Texas A&M must fail because Supreme Court precedent, particularly Christian Legal Society v. Martinez (CLS), requires courts to defer to university officials when they regulate student activities in order to preserve an inclusive educational environment. Judge Ho acknowledges personal disagreement with CLS but insists it must be followed, regardless of whether drag shows currently enjoy more cultural approval than the religious activities restricted in that case. He contends that to protect drag shows more than devotional acts would invert the First Amendment, amounting to viewpoint and religious discrimination. In his view, the university president’s determination that drag shows are misogynistic, akin to blackface performances, should be respected just as CLS required respect for policies against discriminatory student groups.
  • The dissent further emphasizes that university officials have historically opposed events they see as sexist, citing both case law and scholarship comparing drag to blackface. It warns that permitting drag shows could create pressure to allow male participation in women’s sports and other women-only spaces, raising concerns about fairness and safety. Unlike in CLS, where officials targeted Christians out of animus, here the record shows evenhanded application of policy and support for LGBT students in other contexts. Spectrum WT was only denied use of a single facility for one event, not expelled as CLS was. Given this, the dissent maintains that under binding precedent, West Texas A&M had the discretion to restrict drag shows to protect women and fulfill its mission, and the majority erred in concluding otherwise.

• Lexon Insurance Co. v. Chevron U.S.A. Inc., 24-20347, appeal from S.D. Tex.
  • Ramirez, J. (Southwick, Oldham, Ramirez), suretyship, subrogation
  • Affirming dismissal of claims for reimbursement from prior leaseholders by surety of offshore oil & gas operator for decommissioning obligations.
  • After a long history of ownership transfers, Chevron, Linder Oil, Reserves, Destin, and Sojitz at different times held rights and obligations under an offshore lease on the Outer Continental Shelf. Linder Oil ultimately became responsible for decommissioning duties and secured these obligations with performance bonds issued by Lexon Insurance. When Linder Oil and its affiliates went bankrupt and failed to perform the required decommissioning, the Bureau of Ocean Energy Management forfeited Lexon’s bonds. Lexon paid over $11 million, and Chevron and Sojitz completed the decommissioning work at costs beyond the bond proceeds. Lexon then sued the prior leaseholders—Chevron, Sojitz, and BP America—for reimbursement on theories of subrogation, contribution, and unjust enrichment.
  • The district court dismissed Lexon’s claims, finding that neither federal nor Louisiana law supported its recovery. First, federal law, including 31 U.S.C. § 9309, did not give Lexon subrogation rights against non-parties to the surety bonds, and federal common law of equitable subrogation could not override the Outer Continental Shelf Lands Act’s directive that state law fills gaps. Under Louisiana law, Lexon was also not entitled to legal subrogation because it lacked recourse against the defendants. The court further held that contribution was unavailable since the defendants were not co-sureties with Lexon and were indemnified by Linder Oil. Lastly, Lexon could not succeed on unjust enrichment because any benefit the defendants received flowed from contractual indemnity agreements with Linder Oil, providing lawful justification.
  • On appeal, the Fifth Circuit affirmed. It held that federal law did not authorize Lexon to recover from the defendants and that the district court correctly applied Louisiana law under OCSLA. Louisiana’s Civil Code restricts legal subrogation to narrow circumstances, which were not met here. Contribution was inapplicable absent co-surety relationships, and unjust enrichment claims failed because enrichment based on contracts is not “without cause.” Ultimately, the court concluded that Lexon bore the risk as Linder Oil’s surety and could not shift its losses to prior leaseholders who had contractually secured indemnification from Linder Oil.

Unpublished decisions

• U.S. v. Starks, 25-10201, appeal from N.D. Tex.
  • per curiam (Haynes, Graves, Oldham), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Salazar, 25-10216, appeal from N.D. Tex.
  • per curiam (Haynes, Graves, Oldham), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Cisneros, 25-10270, appeal from N.D. Tex.
  • per curiam (Richman, Southwick, Willett), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• The King v. Greystar Corp., 25-20076, appeal from S.D. Tex.
  • per curiam (Davis, Graves, Wilson), landlord-tenant, Fair Housing Act
  • Affirming dismissal of eviction challenge as frivolous.

• U.S. v. Lee, 25-30032, appeal from W.D. La.
  • per curiam (Higginbotham, Engelhardt, Ramirez), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Parks, 25-30036, appeal from W.D. La.
  • per curiam (Jones, Richman, Duncan), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Magdaleno, 25-40013, appeal from E.D. Tex.
  • per curiam (Jones, Richman, Duncan), criminal, Sixth Amendment, expert witness
  • Affirming conviction of conspiracy to possess with intent to distribute 50 grams or more of methamphetamine, possession with intent to distribute 5 grams or more of methamphetamine, and possession with intent to distribute 50 grams or more of methamphetamine.

• U.S. v. Howard, 23-40299, appeal from S.D. Tex.
  • per curiam (Elrod, Jones, Smith), criminal, restitution
  • Dismissing defendant’s appeal of restitution order imposed following his guilty plea convictions for receipt of child pornography and possession of child pornography.

• U.S. v. Everfield, 24-40755, appeal from E.D. Tex.
  • per curiam (Higginbotham, Engelhardt, Ramirez), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. McClendon, 24-40824, appeal from E.D. Tex.
  • per curiam (Barksdale, Graves, Duncan), criminal, sentencing, restitution, guilty plea
  • Affirming guilty plea conviction, sentence, and restitution award for conspiracy to commit wire fraud.

• U.S. v. Lopez-Urbina, 25-50045, appeal from W.D. Tex.
  • per curiam (Richman, Southwick, Willett), criminal, compassionate release
  • Affirming denial of motion for compassionate release.

• U.S. v. Sanchez, 24-50188, appeal from W.D. Tex.
  • per curiam (Higginbotham, Engelhardt, Ramirez), criminal
  • Affirming conviction of possession of a firearm by a felon.

• Garces v. Hernandez, 25-50342, appeal from W.D. Tex.
  • per curiam (Davis, Jones, Ho), sec. 1983, res judicata
  • Affirming dismissal of his civil-rights suit after the district court concluded a final state-court judgment precluded his claims.

• U.S. v. Zavala-Medrano, 24-50864, appeal from W.D. Tex.
  • per curiam (Haynes, Graves, Oldham), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Sealey v. Mancias, 24-50998, appeal from W.D. Tex.
  • per curiam (Davis, Graves, Wilson), qualified immunity
  • Affirming dismissal on qualified immunity grounds of plaintiff’s claims arising from injuries during foot chase with arresting officer.

• Ezeah v. Bondi, 24-60339, c/w 24-60443, petitions for review of BIA orders
  • per curiam (Higginbotham, Engelhardt, Ramirez), immigration
  • Denying BIA’s motion to dismiss petitions for review, denying petitioner’s motions for appointment of counsel and supplementation of the record, and dismissing in part and denying in part petitions for review of BIA orders denying petitioner’s motions to reopen and to reconsider.