Take the Fifth

Designated for publication

• Ackerman v. Arkema, Inc., 25-20006, appeal from S.D. Tex.
  • Elrod, C.J. (Elrod, Clement, Haynes) (oral argument), Haynes, dissenting in part; timeliness, personal torts
  • Affirming dismissal as untimely of claims brought under Texas law, originally in Texas state courts but then removed, for monetary damages arising from chemical explosions at defendant’s facility, where original action was certified as to injunctive relief class but not as to monetary damages and plaintiffs subsequently brough individual claims for monetary damages.
  • Following chemical explosions at Arkema Inc.’s Crosby, Texas plant after Hurricane Harvey, property owners and lessees filed the Wheeler federal class action seeking injunctive and monetary relief for contamination damages. The district court certified the class only for injunctive relief and later approved a settlement addressing that relief but not monetary damages. Nearly 800 class members, including the present Appellants, then filed individual suits in Texas state court seeking monetary damages. They conceded their claims accrued in 2017 and were subject to a two-year statute of limitations but argued that the pending Wheeler class action tolled the state limitations period. Arkema removed the cases to federal court and moved to dismiss, asserting that Texas law does not permit cross-jurisdictional tolling—that is, tolling a state statute of limitations based on a federal class action. The district court agreed and dismissed the claims as untimely, and the Fifth Circuit affirmed.
  • Reviewing de novo, the Fifth Circuit reiterated that Texas courts recognize American Pipe tolling only for class actions filed within Texas courts, not for federal actions. The court cited Bell v. Showa Denko K.K. (Tex. App. 1995), where an intermediate appellate court declined to apply American Pipe tolling based on a federal class action, and reaffirmed its own precedents—Vaught v. Showa Denko K.K. (1997) and Newby v. Enron Corp. (2008)—holding that Texas law does not extend cross-jurisdictional tolling. Under these binding precedents, absent an intervening Texas Supreme Court decision adopting such tolling, federal courts must reject it. The panel concluded that Appellants’ claims, filed nearly six years after accrual, were barred by limitations and that policy considerations or notice arguments could not overcome controlling precedent.
  • Judge Haynes dissented in part, contending that the Fifth Circuit should have certified to the Texas Supreme Court the unresolved question of whether Texas recognizes cross-jurisdictional class-action tolling—i.e., whether the filing of a federal class action suspends state limitations periods for putative class members. Relying on American Pipe & Construction Co. v. Utah, the dissent reasoned that tolling in such circumstances promotes efficiency and avoids duplicative lawsuits, since individual suits become unnecessary if the class action resolves the claims. Although Texas courts have applied American Pipe to state-court class actions, the Texas Supreme Court has not decided whether the same principle extends to federal class actions. The dissent criticized the majority’s adherence to earlier Fifth Circuit predictions (Newby v. Enron Corp. and Vaught v. Showa Denko K.K.) rather than seeking clarification from the state’s high court, emphasizing that only that court’s answer should control; if it declined certification, the dissent would then follow precedent but disagrees with it.

• Legacy Housing Corp. v. City of Horseshoe Bay, 24-50462, appeal from W.D. Tex.
  • Southwick, J. (Higginbotham, Jones, Southwick) (oral argument), takings
  • Affirming as modified a summary judgment in favor of defendants dismissing plaintiff developer’s taking claim based on land restrictions prohibiting the construction of a road, modifying the summary judgment to dismiss the regulatory takings claim without prejudice insofar as it challenged the two-permit cap.
  • Legacy Housing purchased hundreds of lots for manufactured-home development at the southern edge of Horseshoe Bay, Texas, along with adjacent extraterritorial-jurisdiction (ETJ) land intended for a new access road to a nearby highway. That ETJ tract, however, was subject to covenants restricting use to agricultural or residential purposes, and the neighborhood’s declaration of reservations imposed limits on speculative-housing permits and required architectural approval for improvements. When Legacy built a road through the ETJ property and adjoining greenbelt, the City of Horseshoe Bay and related defendants— including the property owners’ association (POA) and two developers—moved to stop it. Legacy sued, alleging a conspiracy among the defendants to block its projects and asserting regulatory-takings, § 1983, conspiracy, and tort claims; the defendants counterclaimed for breach of the ETJ agreement and restrictive covenants. The district court granted the defendants summary judgment, and the Fifth Circuit largely affirmed.
  • On appeal, the court first held that many of Legacy’s arguments were forfeited through inadequate briefing, including challenges to the dismissal of its due-process, equal-protection, and certain declaratory-judgment and conspiracy claims. The court then addressed the surviving issues de novo. Regarding the City, Legacy’s regulatory-takings claim invoked four categories of restrictions: subcontractor qualifications, speculative-building permit caps, utility hookup fees, and setback requirements. The Fifth Circuit rejected the first, third, and fourth theories on the merits and dismissed the second—the two-permit cap—as unripe, modifying the judgment to make that dismissal without prejudice. The court held that Legacy misread the subcontractor ordinance, that the hookup charges were user fees not constituting takings, and that the setback rules caused at most modest cost increases insufficient under Penn Central to amount to a taking.
  • Turning to the City’s counterclaim, the panel agreed that Legacy breached the ETJ development agreement by paving a public road across restricted land without the City’s written consent. The “driveway” label Legacy used was immaterial because the road was plainly designed as a public shortcut and access route to future amenities, which the company itself advertised. Nor had the City committed a prior material breach: an email to state officials did not violate the agreement, and Legacy’s construction of the road itself triggered the City’s right to enforce or annex. Thus, summary judgment for the City on the counterclaim was proper.
  • As for the private defendants, the court upheld summary judgment on all remaining theories. The “strips and gores” doctrine did not give Legacy ownership of a five-foot greenbelt strip between its lots and the ETJ property, because the developer’s plat clearly excluded the greenbelt and thus unambiguously reserved it. Without ownership of that strip, Legacy’s negligence and gross-negligence claims failed for want of any legal duty, and its § 1983 and civil-conspiracy claims failed for lack of an underlying tort or constitutional violation. Its breach-of-fiduciary-duty claim against the POA likewise failed, as the POA neither owned the greenbelt nor owed fiduciary obligations concerning it.
  • Finally, the panel affirmed judgment for the developers on their counterclaim that Legacy’s road violated the restrictive covenants governing the residential lots. Even if Legacy called the construction a “driveway,” the record—including its own promotional materials and photographs—showed that the road crossed the lots and greenbelt without architectural approval and served impermissible public-access purposes. Concluding that only the speculative-permit portion of the takings claim should have been dismissed without prejudice, the Fifth Circuit affirmed the district court’s judgment as modified.

• Lowery v. Mills, 24-50879, appeal from W.D. Tex.
  • Smith, J. (King, Smith, Douglas) (oral argument), First Amendment, standing, evidence
  • Affirming summary judgment dismissal of professor plaintiff’s “chilled speech” claims and adverse rulings on two discovery matters.
  • Professor Richard Lowery of the University of Texas at Austin sued several UT administrators under § 1983, alleging that they chilled or retaliated against his protected speech. Lowery, an outspoken critic of UT’s DEI policies and of President Jay Hartzell, claimed that administrators threatened his position at the Salem Center for Public Policy and even tolerated a police “surveillance” request about his tweets. He said these actions caused him to self-censor. The district court dismissed his retaliation and “unwritten speech code” claims and granted partial summary judgment to UT on his chilled-speech theory, holding that Lowery had shown no adverse employment action. He appealed those rulings and two discovery denials.
  • The Fifth Circuit first held that Lowery had Article III standing to bring his claims. Applying Speech First v. Fenves, the court concluded that Lowery’s intention to continue political commentary on UT policies, coupled with UT’s alleged labeling of his speech as “uncivil” and efforts to “counsel” him, plausibly alleged an ongoing chill. The existence of an unwritten speech code, taken as true at the pleading stage, sufficed to establish a substantial threat of future enforcement. Lowery’s self-censorship, prompted by credible administrative pressure, constituted a cognizable First Amendment injury adequate for standing, even though he had not been formally disciplined.
  • Turning to the merits, the panel agreed with the district court that Lowery’s “chilled-speech” and “retaliation” counts were functionally the same. Both depended on proof that UT’s reactions to his speech would deter an ordinary person from speaking freely. Because Fifth Circuit precedent (Breaux v. City of Garland) governs First Amendment retaliation claims and requires an “adverse employment action” such as discharge, demotion, or reprimand, the court held that Lowery’s allegations—criticism, monitoring, or threats without tangible employment consequences—did not qualify. Burlington Northern’s broader Title VII standard was inapplicable; the circuit’s rule of orderliness foreclosed treating it as having overruled Breaux. Thus Lowery failed to establish a constitutional violation.
  • Lowery’s facial and as-applied challenges to an alleged unwritten speech code also failed. The panel reasoned that even assuming administrators counseled him for “rude” or “uncivil” remarks, he had not shown any disciplinary consequence or actionable viewpoint discrimination. Federal courts must avoid supervising ordinary academic disputes, the court emphasized, and overbreadth invalidation is reserved for clearly excessive speech restrictions. Lowery’s pleadings offered only conclusory assertions of a code’s existence and no factual basis to show that a “substantial number” of its applications would be unconstitutional. Without a concrete adverse act or identifiable policy, his as-applied and overbreadth theories could not survive dismissal.
  • Finally, the Fifth Circuit upheld both discovery rulings. The district court had not abused its discretion in accepting a magistrate judge’s in camera finding that certain text messages and media “talking points” were protected by attorney-client privilege. Nor did it err in enforcing a protective order blocking discovery into alleged nepotism involving Hartzell’s son, since that issue bore little relation to Lowery’s First Amendment claims and could not have altered the absence of an adverse employment action. Finding no prejudice from either limitation, the panel affirmed the judgment in full, declining to transform itself into a “Federal Faculty Lounge Police.”

• Hiran Management, Inc. v. NLRB, 24-60608, petition for review of NLRB order
  • Jones, J. (Jones, Stewart, Ramirez) (oral argument), labor law
  • Granting petitioner’s petition for review of NLRB order in part, denying NLRB’s cross-petition for enforcement of order in part, and remanding for further proceedings.
  • The Fifth Circuit held that the National Labor Relations Board (NLRB) exceeded its statutory authority by awarding full compensatory damages in an unfair-labor-practice proceeding against Hiran Management, a small Houston restaurant operator. After eight employees were fired for going on strike over management issues, the NLRB ordered Hiran to reinstate them and to compensate them for all “direct and foreseeable pecuniary harms.” Hiran sought review, arguing that the NLRA does not authorize such damages. Although the court rejected Hiran’s argument that four of the workers were supervisors exempt from NLRA protections—finding that Hiran had waived that defense and failed to show independent supervisory authority—it agreed that the Board’s remedial order went beyond its statutory limits.
  • The panel analyzed Section 10(c) of the NLRA, which empowers the Board to order employers to cease and desist from unfair practices and to take “affirmative action” such as reinstatement or back pay. Historically, those remedies have been considered equitable, not legal, in nature. Drawing on Supreme Court precedent and the analogy to Title VII’s remedial evolution, the court emphasized that Congress has never amended Section 10(c) to authorize compensatory or consequential damages, whereas it expressly expanded Title VII to include such relief in 1991. Therefore, the Fifth Circuit reasoned, the NLRA confines the Board to equitable measures like reinstatement and back pay—forms of restitution aimed at restoring the status quo, not redressing all financial harms resulting from discharge.
  • In rejecting the NLRB’s reliance on its 2022 Thryv decision, which purported to authorize “make-whole” compensation for all foreseeable pecuniary harms, the court sided with the Third Circuit’s contrary view and expressly disagreed with the Ninth Circuit’s endorsement of Thryv. The Fifth Circuit characterized the Board’s expanded remedial scheme—covering items such as credit-card late fees, childcare, and moving expenses—as legal, not equitable, relief. Because compensatory damages fall outside the NLRB’s congressionally delegated powers, the court granted Hiran’s petition in part, denied the Board’s cross-application for enforcement in part, and remanded for proceedings consistent with its holding that the NLRA authorizes only equitable remedies.

Unpublished decisions

• U.S. v. Dimas, 25-10253, appeal from N.D. Tex.
  • per curiam (King, Haynes, Ho) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Phillips v. City of Dallas, 25-10275, appeal from N.D. Tex.
  • per curiam (Elrod, Jones, Higginson) (no oral argument), due process, sanctions
  • Dismissing as frivolous appeal from imposition of sanctions, and warning of imposition of sanctions in the event of future repeated frivolous appeals.

• U.S. v. Perez, 25-10317, appeal from N.D. Tex.
  • per curiam (King, Haynes, Ho) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Allen, 25-10431, appeal from N.D. Tex.
  • per curiam (Jones, Duncan, Douglas) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Hudson, 25-10613, appeal from N.D. Tex.
  • per curiam (King, Haynes, Ho) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Castillo-Lopez, 23-11099, appeal from N.D. Tex.
  • per curiam (Richman, Southwick, Willett) (no oral argument), criminal, guilty plea
  • Affirming guilty-plea conviction in part, holding that plea agreement was voluntary, and dismissing appeal in part as barred by plea agreement’s appeal-waiver.

• U.S. v. Rivera-Hernandez, 25-20022, appeal from S.D. Tex.
  • per curiam (Dennis, Graves, Duncan) (no oral argument), Duncan, J., dissenting; criminal, supervised release, sentencing
  • Vacating sentence in part for failure to conform written judgment to two of the orally pronounced conditions of supervised release, and remanding for limited purpose of conforming written judgment.
  • The Fifth Circuit found that the district court abused its discretion by including two special conditions of supervised release in the written judgment that had not been properly pronounced at sentencing. Rivera-Hernandez, who pled guilty to illegal re-entry under 8 U.S.C. § 1326(a), argued that the district court’s oral pronouncement failed to adopt or confirm his review of the presentence report (PSR) appendix containing those conditions, depriving him of the opportunity to object. The government maintained that the court implicitly adopted the appendix and that any error was harmless, but the appellate court disagreed, citing United States v. Diggles and other precedents requiring explicit pronouncement or adoption to ensure notice. Because the record showed that the district court neither confirmed Rivera-Hernandez’s review of the PSR nor expressly adopted its appendix, the Fifth Circuit held that the pronouncement requirement was not met and remanded for the limited purpose of aligning the written judgment with the oral sentence.
  • Judge Duncan dissented, contending that vacating Rivera-Hernandez’s supervised-release conditions is unnecessary because the district court complied with United States v. Diggles, which only requires that a defendant receive notice of the conditions and an opportunity to object. The court satisfied these requirements by referencing and adopting the Presentence Report (PSR) and its Appendix during the sentencing hearing, where Rivera-Hernandez and his counsel were given multiple chances to object but did not. The dissent rejects the majority’s insistence on “explicit adoption,” reasoning that the district court’s discussion of the PSR and acknowledgment of defense counsel’s “statement of no objections” effectively confirmed review and adoption of the conditions. It stresses that Diggles does not require “magic words,” only functional compliance. Drawing on the unpublished but persuasive case United States v. Martinez-Rivera (2025), the dissent concludes that Rivera-Hernandez had both notice and opportunity to object and that the district court’s oral incorporation of the PSR met Diggles’s requirements; thus, the judgment should be affirmed.

• Legendre v. Harrah’s Casino New Orleans, 24-30689, appeal from E.D. La.
  • per curiam (Jones, Graves, Rodriguez, by designation) (oral argument), personal tort
  • Reversing summary judgment dismissal of plaintiff’s claim arising from a collision with a casino employee, where district court had based its summary judgment on a review of surveillance footage, finding that a reasonable jury could find that the casino employee was negligent, and remanding for further proceedings.

• Miller v. Ohio Security Insurance Co., 24-30740, appeal from W.D. La.
  • per curiam (King, Smith, Douglas) (oral argument), insurance, Rule 60(b)
  • Affirming dismissal of plaintiff’s suit against insurance company imposed after he failed to appear for two consecutive status conferences, and affirming denial of Rule 60(b) motion.

• Soto v. City of McAllen, 25-40019, appeal from S.D. Tex.
  • per curiam (Dennis, Haynes, Ramirez) (no oral argument), municipal liability
  • Affirming summary judgment dismissal of municipal liability claim after alleged excessive-force incident committed by two police officers.

• U.S. v. Chi, 24-40831, appeal from E.D. Tex.
  • per curiam (King, Haynes, Ho) (no oral argument), criminal, appellate jurisdiction
  • Dismissing for lack of appellate jurisdiction appeal of the district court’s denial of defendant’s motion for an extension of time to file a motion for the transfer of property pursuant to Federal Rule of Criminal Procedure 41(g).

• Gonzalez v. Carmona, 25-50178, appeal from W.D. Tex.
  • per curiam (Dennis, Haynes, Ramirez) (no oral argument), § 1983
  • Affirming order granting defendants in excessive-force claim leave to file responsive pleadings out of time and denying plaintiff’s motion for default judgment as moot.

• U.S. v. Martinez, 24-50438, appeal from W.D. Tex.
  • per curiam (Elrod, Duncan, Engelhardt) (oral argument), criminal, sentencing
  • Affirming sentence on conviction of possession of 500 or more grams of methamphetamine with intent to distribute it, upholding district court’s order that sentence run consecutively with any state sentence for related conduct.

• Nasio v. U.S. Department of Defense, 25-50553, appeal from W.D. Tex.
  • per curiam (Dennis, Haynes, Ramirez) (no oral argument), employment, immigration
  • Affirming dismissal of claims against the DOD for not accepting his enlistment application to the U.S. Air Force as being neither a U.S. citizen nor a lawful permanent resident.

• Garces v. Biery, 25-50648, appeal from W.D. Tex.
  • per curiam (Davis, Jones, Ho) (no oral argument), Americans with Disabilities Act
  • Affirming dismissal of ADA claims arising from the limiting the plaintiff’s courthouse access to the courthouse security officers’ station after he had “created havoc in the District Clerk’s Office.”

• Vasquez v. Union Pacific Railroad Co., 24-50852, appeal from W.D. Tex.
  • per curiam (Jones, Stewart, Ramirez) (oral argument), disability discrimination
  • Affirming summary judgment for employer defendant on plaintiff’s disability discrimination claims arising from work restrictions imposed on him after suffering an off-duty traumatic brain injury.

• Soriano v. Bondi, 25-60181, petition for review of BIA order
  • per curiam (Barksdale, Graves, Duncan) (no oral argument), immigration
  • Denying Mexican citizen’s petition for review of BIA order dismissing her appeal from an Immigration Judge’s (IJ) denying her: asylum; withholding of removal; and protection under the Convention Against Torture.

• U.S. v. Lewis, 25-60267, appeal from S.D. Miss.
  • per curiam (Smith, Higginson, Wilson) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.