Take the Fifth

Designated for publication

• Ellsworth v. Dallas Texas Department of Veterans Affairs, 25-40183, appeal from E.D. Tex.
  • Higginbotham, J. (Higginbotham, Ho, Douglas) (no oral argument), Federal Tort Claims Act
  • Affirming dismissal of FTCA claims.
  • The Fifth Circuit reviewed pro se claims brought by Howard and Theresa Ellsworth under the Federal Tort Claims Act (FTCA), arising from alleged negligent diabetes treatment Mr. Ellsworth received at VA facilities between 2016 and 2022. After symptoms escalated in 2019–2020, Mr. Ellsworth filed administrative complaints in 2022; the VA’s Office of Inspector General found no wrongdoing, and the Office of General Counsel denied his SF-95. The couple then sued in federal court, and while the district court dismissed all claims—finding Mrs. Ellsworth had failed to exhaust administrative remedies and determining both plaintiffs’ claims were time-barred—the Ellsworths appealed. The Fifth Circuit examined whether the FTCA’s exhaustion requirement and statute of limitations had been satisfied, as well as whether the district court erred in denying leave to amend.
  • On exhaustion, the court held that although Mrs. Ellsworth had not filed her own administrative claim until 2024, Mr. Ellsworth’s SF-95 provided minimal notice of her potential property-damage claims because she was listed as a property owner and the form described specific damage to jointly owned household goods. However, the administrative filings contained nothing suggesting she intended to assert independent claims for emotional distress or loss of consortium. The court acknowledged division among district courts regarding whether a spouse must independently file an administrative claim but ultimately concluded that the VA had adequate notice only of possible property-damage claims. Even so, the court found this issue ultimately immaterial because—regardless of exhaustion—both spouses’ claims were barred by the FTCA’s two-year statute of limitations.
  • The panel agreed with the district court that the claims accrued no later than February 2020, when Mr. Ellsworth recognized worsening symptoms, attributed them to negligent care, and confronted his provider—giving him sufficient information to discover both his injury and its cause. Because the administrative claims were not submitted until March 2022 at the earliest, they fell outside the FTCA’s strict limitations period, which is jurisdictional and not subject to equitable tolling here. Mrs. Ellsworth’s derivative property-damage claim accrued at the same time. Given that the defect was incurable and the plaintiffs had already amended twice, the district court did not abuse its discretion in denying further amendment. Although the appellate court disagreed with the exhaustion rationale for dismissing Mrs. Ellsworth’s claims, it ultimately affirmed dismissal of the entire action with prejudice.

• U.S. v. Hernandez, 24-50589, appeal from W.D. Tex.
  • per curiam (Southwick, Higginson, Wilson) (no oral argument), criminal, Second Amendment, Commerce Clause
  • Affirming conviction of possession of a firearm by a felon and possession of an unregistered firearm.
  • In May 2023, defendant Marcos Hernandez—who had a long history of assault convictions against a family member—was arrested in Texas while carrying a short-barreled shotgun without a serial number. He was indicted for violating 18 U.S.C. § 922(g)(1) (possession of a firearm by a convicted felon) and 26 U.S.C. § 5861(d) (possession/receipt of an unregistered firearm). Hernandez challenged both statutes on constitutional grounds: he argued that § 922(g)(1) is facially and as-applied invalid under the Second Amendment and the Commerce Clause, and that § 5861(d) violates the Second Amendment as applied. The district court denied his motion to dismiss; he pled guilty and appealed.
  • On appeal, the Fifth Circuit affirmed. It held that Hernandez’s facial Second Amendment and Commerce Clause challenges to § 922(g)(1) are foreclosed by precedent. His as-applied challenge also failed: because the Second Amendment does not protect possession of a short-barreled shotgun, and because Hernandez’s prior convictions were violent felonies, the statute’s disarmament of him was consistent with the nation’s historical tradition of firearm regulation. The court thus found both § 922(g)(1) and § 5861(d) valid as applied to him and affirmed his convictions and sentence.

• Stanford v. Brandon Nursing and Rehabilitation Center, L.L.C., 24-60509, appeal from S.D. Miss.
  • Southwick, J. (Southwick, Oldham, Ramirez) (oral argument), Oldham, J., dissenting; certification, abstention, federalism
  • Certifying to Mississippi’s Supreme Court the question whether “Mississippi’s Uniform Health-Care Decisions Act require[s] health care providers, in the absence of a designated surrogate, to identify qualifying family members and ensure that no such family member with higher priority is reasonably available under the circumstances before relying on a health care decision made by a lower-priority family member.”
  • Judge Oldham, in a lengthy opinion, dissents. Judge Oldham opens by announcing that he is “troubled by the Fifth Circuit’s standards for certifying questions to state courts” and thinks the court has become addicted to the practice—he says the court should “swear off the drink of overcertification.” He sketches the history: at the Founding, federal courts were almost entirely diversity courts, while most federal questions were decided in state courts. The Anti-Federalists feared federal courts would “absorb and destroy the judiciaries of the several States,” but they did not object to federal judges applying state law. The traditional justification for diversity—fear of state-court bias against out-of-staters—is historically thin, and modern empirical work finds such bias “rare and isolated.” Erie then upended the old “general law” regime, insisting there is “no federal general common law” and forcing federal courts to make “Erie guesses” about what state courts would do—often, Judge Oldham suggests, more like an “Erie dart-throw” than a principled prediction.
  • He then traces how Erie’s problems spawned abstention doctrines (Pullman, Burford, Thibodaux, Younger, Colorado River), which themselves conflicted with the “virtually unflagging obligation” to exercise jurisdiction. After Meredith limited abstention based merely on state-law uncertainty, federal judges still struggled with unclear state law. That led to certification: starting with Florida’s dormant statute, revived by Clay, and then enthusiastically promoted by the Supreme Court as saving “time, energy, and resources” and fostering “cooperative judicial federalism.” By now, almost every state and territory allows certification, and every federal circuit uses it. The practical result, Judge Oldham says, is that when federal judges see a hard state-law issue, “then say: ‘Let’s certify!’”—a reflex he thinks is at odds with Article III and historical practice.
  • In Part II, he catalogs eight theoretical problems with certification. First, it inverts history by assuming federal judges are custodians of federal law and state judges of state law, which he calls an ahistorical outgrowth of Erie. Second, it offers a superficial “cooperative federalism” gloss while ignoring the real federalism problem: the enormous federal-question power over states. Third, it undermines the duty to decide cases; if we thought state courts biased, sending litigants back to “state attachments, state prejudices, state jealousies” defeats diversity’s purpose; if we do not, diversity itself is hard to justify. Fourth, rather than honoring state courts, certification can patronize them—treating them as adjuncts doing our “overflow laundry” while the federal court retains the case and final judgment. His example, Perez v. City of San Antonio, shows a year-long certification detour that ended with the Fifth Circuit largely saying what it had said before, prompting a wry aside that the Texas Supreme Court mercifully declined to “really explore the studio space” of a new constitutional provision.
  • Next he argues certification sits uneasily with Article III and distorts state judicial systems. He notes that federal courts cannot issue advisory opinions, administer benefits, or decide political questions, yet certification invites state courts to issue “an advisory opinion on an abstract question of law” so that federal courts can use it. He raises the puzzle: if Erie treats state courts and legislatures equivalently as sources of state law, could federal courts just as well certify a question to a state legislature or attorney general? If not, why is it permissible to solicit equally non-judicial legal advice from state judges? Certification also bypasses state trial and intermediate courts and, in places like Texas, becomes a “Fast Pass” around discretionary review—giving federal-court litigants an easier path to the state high court than most purely state-court litigants enjoy. On top of that, there is “no clear test” for when to certify; “ambiguity is in the eye of the beholder,” and certification can be triggered when an issue just feels “icky” or “easy to delegate,” undermining equal administration of justice.
  • Even on its own terms, Judge Oldham insists, certification fails its main advertised benefit: efficiency. Rather than streamline cases, it “prolong[s] the dispute and increase[s] the expenses incurred by the parties,” splitting one controversy into two proceedings, two courts, and extra rounds of briefing and argument. He notes that it “inherently entails more delay and expense than would an ordinary decision of the state question on the merits,” and quotes scholarship that “it takes as long to determine that a case should be certified as it does to decide a case on the merits.” In his view, the Supreme Court has made clear that certification is appropriate only in “exceptional instances”: when clarifying state law can avoid substantial constitutional questions, or when a federal ruling risks “serious disruption” of state government. He endorses certification in cases like Mckesson, Whole Woman’s Health, and Umphress, where the stakes involve First Amendment issues or major intrusions into state regulatory structures.
  • Turning to this case, Judge Oldham argues the Fifth Circuit’s own three-factor certification “standard” is “standardless” and departs from those Supreme Court limits. The “closeness” of a state-law question, he says, is precisely what Meredith held is not a reason to refuse jurisdiction; “answering ‘close’ questions is not just the job of an appellate court; it is the entire point.” Appeals to “comity” are also misplaced if they mean expecting “helpful responses” from state courts rather than guarding against serious disruption of state governance. Applying his preferred standard, he says the panel’s decision to certify a Mississippi surrogate-decision-maker question in a private arbitration/tort dispute is a paradigm of overreach: there is no constitutional issue, no threat to Mississippi’s sovereign functions, the parties did not ask for certification, the record and briefing already supply the tools to decide, and the delay will badly prejudice an injury that occurred in 2022—he jokes that Stanford might not see judgment until “2030.” Imagining how Mississippi’s justices will react to being told to drop their other work to construe a “uniform” statute that has “fewer adopters than Bluesky,” at the behest of federal judges in New Orleans, he concludes that this sort of certification is not “beneficial to federalism,” and closes: “I respectfully dissent.”

• McLean v. Bondi, 20-61098, petition for review of BIA order
  • Richman, J. (Richman, Haynes, Graves) (no oral argument), Richman, J., concurring; immigration
  • Denying Jamaican citizen’s petition for review of BIA’s final order of removal.
  • The Fifth Circuit denied Delroy Anthony McLean’s petition for review challenging the Board of Immigration Appeals’ conclusion that he was removable and ineligible for cancellation of removal based on his federal conviction for threatening a federal official under 18 U.S.C. § 115(a)(1). The court held that McLean’s offense—which resulted in a 41-month sentence—qualified as an aggravated felony under 8 U.S.C. § 1101(a)(43)(F), which includes crimes of violence with a sentence of at least one year. Because § 115 is a divisible statute with varying elements and penalties, the court applied the modified categorical approach and determined that McLean was convicted of the least culpable offense supported by the record: threatening to assault a federal official. That offense necessarily requires the “threatened use of physical force,” satisfying 18 U.S.C. § 16(a)’s definition of a crime of violence. The panel also concluded that although the BIA incorrectly treated § 115 as indivisible, the error was harmless because the result would be the same.
  • Because McLean’s conviction qualified as an aggravated felony, the court further held that he was statutorily ineligible for cancellation of removal under 8 U.S.C. § 1229b(a)(3). The panel rejected his additional arguments, including his assertion that the absence of actual physical force precluded an aggravated-felony finding, noting that threats are expressly included in the statutory definition of a crime of violence. Finally, the court denied McLean’s pending motion for appointment of counsel, finding no exceptional circumstances warranting it, and denied the petition for review in full.
  • In a move reminiscent of the Court’s current concurrence-king, Judge Ho, Judge Richman then authored a lengthy concurring opinion concurring in her own majority opinion, explaining that determining whether McLean’s conviction under 18 U.S.C. § 115(a)(1)(B) qualifies as an “aggravated felony” requires applying the categorical (and modified categorical) approach. Although McLean’s indictment alleged graphic, violent threats against an immigration judge, courts must ignore the facts of the particular case and instead ask whether the statutory elements always require proving “the threatened use of physical force” under 18 U.S.C. § 16(a). Because § 115 is divisible and contains multiple assault-related offenses with differing punishment levels, the analysis focuses on which variant McLean’s conviction necessarily involved. Since he could have been sentenced only under § 115(b)(4) (threatened assault, maximum six years), the question is whether a threat to commit an assault that involves at least “physical contact” necessarily threatens force “capable of causing physical pain or injury,” as required by Johnson v. United States.
  • To determine the meaning of “assault” and “simple assault,” the analysis turns to common-law definitions, statutory history, treatises, and earlier Fifth Circuit cases. Common-law assault—including both attempted-battery assault and intentional-scaring assault—requires either an intent to inflict bodily injury or intentionally causing the apprehension of immediate bodily injury. Both formulations inherently involve the threatened use of violent force as defined in Johnson. Judge Richman’s concurrence also surveys the Supreme Court’s post-Johnson case law, especially Stokeling, which emphasized that force need only be capable of causing pain or injury—not likely to do so—and that even minimal force, including force applied indirectly (e.g., poisoning), may qualify. Against that backdrop, prior Fifth Circuit decisions such as United States v. Ramirez, which treated physical contacts like throwing feces and urine as “forcible assault,” illustrate that “physical contact” assaults proscribed by § 115(b)(1)(B)(ii) involve force with the requisite potential to cause harm.
  • Finally, Judge Richman’s concurrence concludes that threatening such an assault under § 115(a)(1)(B) categorically requires threatening force capable of causing physical pain or injury, satisfying § 16(a)’s definition of a “crime of violence.” Other circuits’ treatments of similar conduct—such as spitting, throwing bodily fluids, or minor physical batteries—support this conclusion. The statute also cannot be violated recklessly because it requires a specific intent to impede, intimidate, interfere with, or retaliate against a federal official. Consequently, McLean’s conviction qualifies as a “crime of violence” and thus an “aggravated felony” under 8 U.S.C. § 1101(a)(43)(F), making him removable under 8 U.S.C. § 1227(a)(2)(A)(iii).

Unpublished decisions

• U.S. v. Youngblood, 25-10278, 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. Ayla, 25-10406, 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. Lee, 25-10443, appeal from N.D. Tex.
  • per curiam (Wiener, Willett, Wilson) (no oral argument), criminal, compassionate release
  • Affirming denial of motion for compassionate release.

• Copeland v. Nervaez, 25-10498, appeal from N.D. Tex.
  • per curiam (King, Haynes, Ho) (no oral argument), Rule 41
  • Affirming dismissal with prejudice of plaintiff’s claims for failure to comply with a court order.

• U.S. v. Lampkin, 25-10508, appeal from N.D. Tex.
  • per curiam (Richman, Southwick, Willett) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Anibowei v. Bondi, 24-11042, appeal from N.D. Tex.
  • per curiam (Elrod, Clement, Haynes) (oral argument), immigration, administrative law
  • Affirming the district court’s dismissal of plaintiff immigration attorney’s Administrative Procedure Act claim seeking vacatur of three directives promulgated by United States Customs and Border Protection and United States Immigration and Customs Enforcement.
  • The Fifth Circuit addressed the appeal of George Anibowei, a U.S. citizen and attorney, who challenged three directives issued by U.S. Customs and Border Protection (CBP) and U.S. Immigration and Customs Enforcement (ICE) governing border searches of electronic devices. After his cell-phone was searched by CBP/ICE without a warrant on multiple occasions, he sought to vacate the directives under the Administrative Procedure Act (APA). The district court dismissed his claim on jurisdictional grounds under Federal Rule 12(b)(1) and, alternatively, for failure to state a claim under Rule 12(b)(6). The Fifth Circuit found jurisdictional dismissal inappropriate because there was no clear and convincing evidence of a “special, alternative remedy” that would bar APA review under 5 U.S.C. § 704, reversing the 12(b)(1) outcome.
  • Turning to the merits under Rule 12(b)(6), the court held that it was bound by its prior precedent—namely United States v. Castillo (70 F.4th 894) and Malik v. U.S. Department of Homeland Security (78 F.4th 191)—which categorically reject a warrant requirement for cellphone searches at the border under the Fourth Amendment. Because Anibowei’s challenge rested on precisely that warrant-requirement argument, the Fifth Circuit affirmed the dismissal on the 12(b)(6) ground, concluding that his legal theory was foreclosed by binding circuit precedent.

• Miller v. Dunn, 24-11069, appeal from N.D. Tex.
  • per curiam (Dennis, Engelhardt, Wilson) (no oral argument), removal jurisdiction
  • Affirming district court’s remand to state court of child-custody dispute that defendant had removed to federal court.

• U.S. v. Love, 24-20434, appeal from S.D. Tex.
  • per curiam (Higginbotham, Engelhardt, Ramirez) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Cunigan, 25-30042, appeal from E.D. La.
  • per curiam (Higginbotham, Engelhardt, Ramirez) (no oral argument), criminal, sentencing
  • Affirming sentence on conviction of conspiracy to commit sex trafficking of a minor (though vacating in part and remanding to comport written judgment, as to conditions for supervised-release portion of sentence, to orally-pronounced sentence).

• Webber v. Leson Chevrolet Co., 24-30637, appeal from E.D. La.
  • per curiam (King, Jones, Wilson) (oral argument withdrawn), employment discrimination, Title VII, sanctions
  • Affirming summary judgment dismissal of plaintiff’s employment discrimination claims against defendant, and affirming sanctions against plaintiff’s counsel.
  • Appellant Nathanial Webber, an African-American mechanic hired by family-owned dealership Leson Chevrolet in Louisiana, alleged that after protesting nearby social justice demonstrations and complaining about racially offensive social-media posts by the owner’s son, he was subject to a racially hostile work environment and wrongfully terminated in July 2020. The district court granted summary judgment to the dealership, concluding that Webber’s Title VII claims lacked sufficient factual support and his state-law claims were time-barred, and also upheld sanctions against Webber’s counsel for repeated failures in discovery and court appearances.
  • The Fifth Circuit held that Webber failed to show a “term, condition, or privilege” of employment was altered by harassment, because the racially offensive posts he cites were not directed at him or workplace interactions with him, and he offered no evidence of in-person harassment or work interruption. Further, on the termination claim, although he was a member of a protected class and was discharged, the dealership provided a legitimate, non-discriminatory reason: missing more than two weeks of work without explanation. Webber’s evidence did not create a genuine issue whether this reason was pretextual (e.g., inconsistent explanations or similarly situated employees treated differently) and the “same actor” whom hired him also fired him weighed against discrimination.
  • Regarding Louisiana law tort and employment‐discrimination claims, the Court affirmed that the one-year prescription period began in July 2020, and Webber’s April 2022 complaint was too late—even accounting for the six-month tolling under the employment statute—so those claims were time-barred. As to the sanctions, the court reviewed the district court’s imposition of a $3,500 penalty on Webber’s attorney for multiple missed appearances and frivolous filings, and the denial of Webber’s motion for sanctions against defense counsel, under an abuse‐of‐discretion standard. Finding no error in the magistrate judge’s handling (including treating an objections filing as a motion for reconsideration), it affirmed that ruling as well.

• U.S. v. Yoes, 25-40055, appeal from E.D. Tex.
  • per curiam (Wiener, Engelhardt, Oldham) (oral argument withdrawn), criminal, sentencing
  • Affirming 120-month sentence on conviction of possession of a firearm by a felon.

• U.S. v. Alvarez, 25-40083, appeal from E.D. Tex.
  • per curiam (Jones, Duncan, Douglas) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Hechavarria-Olivera, 25-50244, appeal from W.D. Tex.
  • per curiam (Smith, Higginson, Wilson) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Almeida-Ponce, 25-50384, c/w 25-50349, appeal from W.D. Tex.
  • per curiam (King, Haynes, Ho) (no oral argument), criminal
  • Affirming conviction and revocation of supervised release for illegal reentry.

• U.S. v. Inyang, 24-50733, appeal from W.D. Tex.
  • per curiam (Wiener, Willett, Wilson) (no oral argument), criminal, search and seizure
  • Affirming conviction of conspiracy to commit mail and wire fraud, upholding denial of motion to suppress.

• U.S. v. Polendo, 24-50912, appeal from W.D. Tex.
  • per curiam (Barksdale, Graves, Duncan) (no oral argument), criminal, sentencing, guilty plea
  • Affirming 151-month sentence on conviction of conspiracy to possess with intent to distribute five kilograms or more of cocaine (defendant pled guilty in 2002, then fled the country before sentencing and was sentence in absentia, was re-apprehended and was re-sentenced in 2024; the Court held that the appeal-waiver in her 2002 guilty plea agreement did not apply to bar a sentence appeal where her initial sentence was in absentia, and affirmed the re-sentencing on the merits).

• Pulliam v. Benton County School District, 25-60065, appeal from N.D. Miss.
  • per curiam (Smith, Stewart, Ramirez) (oral argument), employment discrimination, Title VII
  • Affirming summary judgment of white male’s employment discrimination claim against school district after he was terminated after ten days of becoming a teacher in the district upon a report that he had “used the N-word several times, criticized another black colleague, and used tobacco on school grounds.”

• U.S. v. McCroy, 25-60072, appeal from S.D. Miss.
  • per curiam (Elrod, Higginson, Ramirez) (no oral argument), criminal, sentencing, guilty plea
  • Dismissing appeal under appeal-waiver in plea agreement, where defendant appealed sentence on conviction of possession of a firearm by a felon.

• U.S. v. Hudson, 25-60172, appeal from N.D. Miss.
  • per curiam (King, Haynes, Ho) (no oral argument), criminal, sentencing
  • Affirming 60-month sentence on conviction of possessing and transferring a machinegun.