Take the Fifth

Designated for publication

• ExxonMobil Research & Engineering, Inc. v. NLRB, 23-60495, appeal from the NLRB
  • per curiam (en banc denial from Richman, Graves, Ramirez, JJ.) (voting for rehearing: Elrod, C.J., Jones, Smith, Oldham, JJ.; voting against rehearing: Stewart, Richman, Southwick, Haynes, Graves, Higginson, Willett, Ho, Duncan, Englehardt, Wilson, Douglas, Ramirez, JJ.) (oral argument on original panel hearing), Ho, J., concurring in denial of rehearing; Oldham, J., dissenting from denial of rehearing (joined by Jones, Smith, JJ., and by Elrod, C.J., as to all but Part II.C); labor law, en banc, administrative law, separation of powers
  • Denying en banc rehearing of March 12, 2025, panel opinion (Richman, Graves, Ramirez) granting NLRB cross-petition to enforce NLRB order affirming ALJ’s findings that company was liable for unfair labor practices in violation of National Labor Relations Act in connection with company’s conduct during collective bargaining agreement (CBA) negotiations with union representing research facility employees, ordering company to cease and desist from unfair labor practices and to post a remedial notice at facility where union employees worked, and vacating an earlier NLRB decision due to participation of a conflicted NLRB member.
  • Judge Ho concurred in the denial of rehearing, agreeing with denying rehearing en banc not because he believed the panel decision was necessarily correct—indeed, he says he likely would have ruled differently on the merits—but because en banc review is disfavored and unwarranted where counsel failed to litigate diligently before the three-judge panel. Emphasizing circuit rules and judicial economy, he argues that en banc rehearing should not be used to rescue inadequately presented arguments, noting that the petitioner advanced a First Amendment theory on rehearing that was never presented to the panel and that prior counsel even squandered much of his oral-argument time. This is not “punishment,” the concurrence stresses, but a principled insistence that parties fully use their initial opportunity before three judges before demanding the attention of all seventeen. Finally, Judge Ho underscores that reasonable judges can disagree in good faith about en banc review, and that consistency and neutrality in exercising that discretion require denying rehearing here just as the court did in other controversial cases—regardless of whether the dispute is commercial or culturally charged.
  • Judge Oldham dissented from the denial of en banc rehearing, condemning the NLRB’s decision to reopen a long-final labor ruling as a “naked power grab” that exposes deep constitutional and rule-of-law flaws in “independent agencies.” Anchoring his analysis in Article II and the unitary-executive principle, Judge Oldham argues that modern administrative law assumes agencies exercise the President’s executive power and remain subject to presidential supervision—assumptions that break down with independent agencies insulated from removal and political accountability. Those agencies, he says, operate in a constitutional “No Man’s Land,” wielding quasi-legislative and quasi-judicial authority while being accountable to no branch and no electorate. This case, in his view, shatters the idealized vision of neutral, expert commissions and instead shows an agency prioritizing political gamesmanship over finality and repose, acting like a “headless Fourth Branch.”
  • Turning to the particulars, Judge Oldham contends that the NLRB’s sua sponte reopening—after a change in political control—undermines settled expectations and incentivizes strategic delay, allowing parties and the Board alike to relitigate outcomes based on shifting political winds. He criticizes the panel for endorsing a reading of the NLRA that places no meaningful time limits on reopening decisions, flouting basic principles of finality that bind courts and agencies alike. “When personnel changes dictate legal rules,” he warns, faith in a “government of laws, and not of men” erodes. And if courts would never tolerate new judges reopening final judgments for political reasons, he asks, why should an independent agency be allowed to do so—especially when it claims the power to issue judgments with preclusive effect but without the constraints of the rule of law?

• Mertens v. Benelux Corp., 24-50954, appeal from W.D. Tex.
  • Graves, J. (Dennis, Graves, Duncan) (no oral argument), arbitration, employment, Fair Labor Standards Act
  • Affirming denial of employer-defendant’s motion to compel arbitration in FLSA suit brought by employee.
  • In this Fair Labor Standards Act case, a group of current and former waitstaff sued Benelux Corporation (doing business as Palazio Men’s Club) in federal court in Texas, and Benelux sought to enforce a 2020 arbitration agreement to compel their claims into arbitration. The arbitration agreement contained two signature blocks—one for the employee and one for the employer—but Benelux never signed the agreement even though employee Octavia Mertens (and others) signed both signature slots. The district court denied Benelux’s motion to compel arbitration, finding that under the plain language of the agreement both signatures were required to create a binding contract, and Benelux lacked a valid arbitration agreement with the employees.
  • On appeal, the Fifth Circuit affirmed the district court’s denial of the motion to compel arbitration. Applying Texas contract law, the court explained that a valid contract requires execution by all parties, and where an agreement’s language clearly shows that both parties’ signatures are necessary to manifest mutual assent, the absence of one party’s signature renders the agreement unenforceable. The Fifth Circuit rejected Benelux’s arguments that specific conditional phrasing was required to make signatures a condition precedent and that the parties’ conduct otherwise showed a meeting of the minds, holding that the unambiguous language of the arbitration agreement itself demonstrated the parties’ intent that both signatures be required for the contract to take effect.

• U.S. v. Cockerham, 24-60401, appeal from S.D. Miss.
  • Ho, J. (Higginson, Ho, Wilson) (oral argument), Ho, J., concurring; Higginson, J., dissenting; criminal, Second Amendment
  • Reversing conviction of possession of a firearm by a felon.
  • The Fifth Circuit holds that the Second Amendment is a fundamental civil right that cannot be treated as “second-class,” and that challenges to firearm restrictions must be resolved through historical analysis rather than policy intuition. While history supports disarming violent criminals, it does not establish a tradition of permanently disarming individuals solely for non-violent offenses. Applying the Supreme Court’s Bruen and Rahimi framework, the court reiterates that 18 U.S.C. § 922(g)(1)—which imposes a lifetime firearm ban based on any crime punishable by more than one year—extends far beyond violent felonies and even beyond offenses that result in imprisonment, raising serious constitutional concerns.
  • The court emphasizes that § 922(g)(1) is “wildly overinclusive,” especially in an era of expansive criminalization. It disarms individuals for life based on status alone, including those convicted of non-violent offenses who never served prison time and who may have posed no danger at all. Supreme Court precedent describes felon-disarmament laws as only “presumptively lawful,” leaving room for successful as-applied challenges. Consistent with Fifth Circuit precedent, the proper inquiry focuses on whether permanently disarming a particular defendant aligns with historical tradition, not merely on whether the offense carries the label “felony.”
  • Applying that analysis, the court concludes that Edward Cockerham’s conviction under § 922(g)(1) is unconstitutional as applied. His sole predicate offense was failure to pay child support under Mississippi law, for which he served no prison time and which he fully satisfied before being found in possession of a firearm. The Government’s attempt to analogize child-support delinquency to theft fails because, at the Founding, debtors and thieves were treated differently: thieves could be permanently punished and disarmed, whereas debtors were only temporarily restrained until payment. Because Cockerham had repaid his debt, history provides no justification for disarming him at that moment, let alone for life.
  • The court rejects reliance on unproven allegations or broader character assessments, reaffirming circuit precedent that as-applied challenges must focus on the elements of the predicate offense rather than the defendant’s overall history. Addressing the dissent, the majority explains that reversal—not mere remand—is required under binding Fifth Circuit authority, though the Government remains free to attempt re-prosecution with stronger historical evidence in future proceedings. Finding no historical basis to justify lifelong disarmament for a satisfied, non-violent debt offense, the court holds that § 922(g)(1) violates the Second Amendment as applied to Cockerham and reverses and remands for further proceedings.
  • Judge Ho concurred with his own majority opinion, responding directly to the dissent’s claim that the Supreme Court “corrected” the Fifth Circuit in Rahimi, insisting instead that the panel faithfully applied Bruen as binding precedent and did exactly what vertical stare decisis requires of inferior courts. He emphasizes that only the Supreme Court may revise or overrule its own decisions, and that lower courts are expressly forbidden from anticipating such changes; accordingly, it would have been insubordinate for the Fifth Circuit to decide Rahimi based on how it thought Bruen might later be modified rather than on what Bruen actually said. Judge Ho underscores that at the time, no judge on the court disputed the panel’s reading of Bruen, and that commentators across the ideological spectrum acknowledged Rahimi as a straightforward, good-faith application of Bruen’s historical-tradition test. In his view, the Supreme Court’s reversal in Rahimi did not “correct” the Fifth Circuit but instead altered Bruen itself—most notably by reversing Bruen’s treatment of surety laws as irrelevant to gun bans and recasting them as support for disarmament. Judge Ho closes by analogizing Rahimi to Dobbs: in both cases, the Fifth Circuit properly followed existing Supreme Court precedent, and when the Court later reversed, it corrected its own doctrine, not the lower court’s obedience to it.
  • Judge Higginson dissents on procedural and institutional grounds, arguing that the majority should not decide the constitutionality of applying § 922(g)(1) to Cockerham on an undeveloped record. He emphasizes that the Fifth Circuit’s intervening decision in United States v. Diaz fundamentally altered the governing framework by requiring a second, predicate-specific historical inquiry—an inquiry neither party nor the district court could have anticipated or properly litigated below. Given conflicts between Diaz and other circuits, the lack of a robust Founding-era historical record concerning felony nonpayment of child support, and factual and analytical gaps in the majority’s reasoning, Judge Higginson would remand so the parties and district court can compile and assess the necessary historical evidence in the first instance. In his view, deciding the issue now improperly turns appellate judges into fact-finders and historians, rather than error-correctors.
  • Substantively, Judge Higginson does not foreclose that Cockerham’s predicate felony might ultimately justify disarmament, but insists that history cannot be chosen by advocates—or judges—without disciplined development and testing. He criticizes the majority for analogizing child-support delinquency to Founding-era debt without serious historical analysis, warning that Bruen and Rahimi require analogical reasoning grounded in a developed record, not a declaration of historical “inability.” He also expresses broader concerns about democratic legitimacy, national uniformity, and notice: millions of Americans with felony convictions face shifting, circuit-specific rules about when gun possession is criminal, and similarly situated defendants are treated differently depending on geography. Echoing Rahimi, Judge Higginson cautions against repeating past methodological errors by declaring modern harms historically unregulated simply because their precise forms did not exist at the Founding. For these reasons—procedural fairness, proper judicial role, and systemic coherence—he would remand rather than invalidate § 922(g)(1) as applied here.

• Liao v. Bondi, 25-60427, petition for review of BIA order
  • Clement, J. (Elrod, Clement, Haynes) (no oral argument), Elrod, C.J., dissenting; immigration
  • Denying Chinese citizen’s petition for review of a final order of removal issued by the Board of Immigration Appeals.
  • The Fifth Circuit denied Kun Liao’s pro se petition for review of a BIA order because it was filed outside the statutory thirty-day deadline. The BIA’s July 2, 2025, decision denied Liao’s motion to reconsider as untimely and his motion to reopen for lack of new evidence, making that date the relevant “final order of removal.” Liao’s petition was not received by the court until August 11—ten days late. Relying on the Supreme Court’s decision in Riley v. Bondi, the court explained that the thirty-day deadline in 8 U.S.C. § 1252(b)(1) is not jurisdictional but a mandatory claim-processing rule. While such rules can be waived, the government promptly moved to dismiss Liao’s petition as untimely, thereby preserving the objection. Because the deadline was properly invoked, the court was required to enforce it and deny review.
  • The court also rejected Liao’s attempt to invoke the prison mailbox rule, which can treat a pro se detainee’s filing as timely if deposited in the institution’s legal mail system on or before the deadline and supported by specified proof. Liao failed to show that he used a designated legal-mail system, did not provide a declaration under penalty of perjury or a notarized statement establishing the date of deposit, and submitted no reliable evidence showing timely mailing. As a result, the mailbox rule did not apply. With the petition untimely and no waiver or procedural exception available, the court enforced § 1252(b)(1)’s filing deadline and denied the petition for review.
  • Chief Judge Elrod dissents from the summary denial of Liao’s petition, arguing that the court misapplies the prison mailbox rule by elevating form over substance. She explains that Federal Rule of Appellate Procedure 25 expressly permits courts to allow a later-filed declaration curing technical defects, and that this discretion should be exercised here given Liao’s status as a pro se, detained asylum seeker and non-native English speaker who made good-faith efforts to comply with filing requirements. Chief Judge Elrod emphasizes that Liao has already supplied all necessary information—asserting he timely deposited his petition in the El Paso Service Processing Center’s internal mail system and explaining his initial omission of technical details—and that delays in mail delivery from detention facilities are precisely what the mailbox rule is meant to address. In her view, the court should allow Liao to file a corrected declaration and proceed to the merits rather than summarily dismiss his case on procedural grounds.

• U.S. v. Sanchez-Zurita, 24-60602, appeal from S.D. Miss.
  • Richman, J. (Elrod, Richman, Willett) (oral argument withdrawn), criminal, sentencing, guilty plea
  • Vacating sentence for illegal reentry, and remanding for resentencing.
  • The Fifth Circuit addressed an appeal by Luis Javier Sanchez-Zurita, who pled guilty in federal district court to unlawful reentry after deportation following an aggravated felony conviction and was sentenced to the statutory maximum of 20 years’ imprisonment. Before his plea, defense counsel and the government exchanged emails about a potential plea agreement; the government conveyed it would support a within-guideline sentence if asked, even though no formal written plea agreement was signed and all parties—including the district court—stated on the record there was no plea agreement at the change-of-plea hearing. At sentencing, the government took no position on sentencing and declined to affirm it would recommend a within-guideline sentence. Sanchez-Zurita objected, arguing he reasonably relied on the government’s pre-plea emails and that the government breached its promise by failing to advocate for the agreed-upon recommendation.
  • On appeal, the Fifth Circuit concluded that, despite the absence of a formal written agreement, the government made a specific, informal promise in email communications that Sanchez-Zurita could reasonably have relied on in deciding to enter an open plea. The court held that by not fulfilling that promise at sentencing, the government breached the plea agreement. The panel vacated Sanchez-Zurita’s sentence and remanded for resentencing before a different judge, granting his motion for reassignment on remand so that the government could honor its promise or otherwise address the breach.

Unpublished decisions

• Murphy v. Nania, 25-20253, appeal from S.D. Tex.
  • per curiam (Higginbotham, Engelhardt, Ramirez) (no oral argument), insurance, res judicata
  • Affirming dismissal of claim against insurance adjuster by insured as barred by res judicata after unsuccessful suit against insurer.

• Gonzalez v. McDonald, 25-40102, appeal from E.D. Tex.
  • per curiam (Richman, Southwick, Willett) (no oral argument), sec. 1983, appellate jurisdiction
  • Dismissing appeal of dismissal of sec. 1983 claims, including excessive force claim, on basis of untimely notice of appeal.

• U.S. v. Tello-Alvarado, 25-50454, appeal from W.D. Tex.
  • per curiam (Dennis, Engelhardt, Wilson) (no oral argument), criminal, sentencing
  • Affirming sentence on conviction of illegal reentry.

• U.S. v. Brown, 24-50944, appeal from W.D. Tex.
  • per curiam (Stewart, Graves, Oldham) (no oral argument), criminal
  • Affirming conviction of possession of a firearm by a felon.