Take the Fifth

Designated for publication

• Hershey v. City of Bossier City, 21-30754, appeal from W.D. La.
  • per curiam (en banc) (voting against rehearing: Elrod, Stewart, Southwick, Haynes, Graves, Higginson, Willett, Ho, Douglas, Ramirez, JJ.; voting for rehearing: Jones, Smith, Richman, Duncan, Engelhardt, Oldham, Wilson, JJ.); Ho, J., concurring in denial of rehearing; Oldham, J., dissenting from denial of rehearing (joined by Jones, Smith, Richman, Duncan, Engelhardt, Wilson, JJ.) (orally argued at the original panel stage); municipal liability, qualified immunity, First Amendment, en banc
  • Denying en banc rehearing of October 7 panel decision (“per curiam” Dennis, Richman, Ho; Ho, J., concurring; Dennis, J., dissenting in part; Richman, J., dissenting in part), Dennis and Ho reversing dismissal of Monell claim; and Richman and Ho affirming qualified immunity dismissal of officer defendants; full effect of three opinions in per curiam result affirming qualified immunity dismissal of police officers for enforcement of leaflet-distribution prohibition, reversing dismissal of municipal liability claim against city.
  • Concurring in the denial of en banc rehearing, Judge Ho opens with a blunt premise: the First Amendment matters most when speech is disfavored—“Popular speech doesn’t need protection. It’s only when speech is unpopular that you need the First Amendment.” In his view, religious expression is quintessentially “unpopular speech,” so constitutional protection must cover not only “the right to pray, but to preach—not just to worship, but to witness,” including evangelism in public places. He frames the case as one where the right “should be obvious”: believers “have the right to share the good news,” and that “obviousness … should have been enough” to defeat qualified immunity—yet Fifth Circuit en banc precedent (especially Morgan and Villarreal) blocks that route, so he says he is “duty-bound to follow our en banc precedents, whether I agree with them or not.”
  • From there, Judge Ho’s core procedural fight is qualified immunity’s “clearly established” requirement. He insists Supreme Court doctrine recognizes an “obviousness” path—where an egregious violation can be clearly established without a factually identical case—citing Hope v. Pelzer and Taylor v. Riojas (“general statements of the law…may apply with obvious clarity”). But he says Villarreal wrongly confined Hope/Taylor to Eighth Amendment conditions-of-confinement cases, effectively making the First Amendment a “second-class right.” He then accuses his dissenting colleagues of backpedaling: after “having won in Villarreal,” they now deny they eliminated the obviousness exception for First Amendment claims. Judge Ho’s rhetorical move is “roll the tape,” quoting Villarreal at length, then quoting his own dissent, and concluding that candor requires admitting what the court actually held: “we should be candid about what our opinions do and don’t say.”
  • Judge Ho next pivots to municipal liability under Monell, arguing governing law is more forgiving than his colleagues suggest: an “extensive pattern” can establish liability, but it isn’t necessary when the risk is “so obvious” that a municipality’s “no training whatsoever” amounts to deliberate indifference (City of Canton; Connick). He characterizes the rehearing petition as an attempt to “shield obvious violations of religious liberty under Monell” and warns against government evasion by outsourcing coercion—“directly or … through private intermediaries” (citing NRA v. Vullo and related state-action principles). He also mocks what he calls a false parade of horribles—no one is demanding cities teach “municipal waste workers” constitutional law in the abstract—only that training be provided “with respect to the relevant constitutional duty.”
  • Finally, Judge Ho treats the dissent’s skepticism about religious liberty as the real tell. He says it has become “a regrettable … common practice” for judges to avoid “sensitive matters of conscience” by “concocting procedural problems or distorting the facts,” calling this case “Exhibit A.” On sincerity, he argues it’s “beyond our province” at the pleadings stage and, in any event, is for a jury; the complaint alleges Hershey distributed “religious booklets” because he “feels compelled” to share the message. Judge Ho defends street preaching as neither obscure nor rare, invoking the Supreme Court’s recognition of tract distribution as an “age-old” form of evangelism, and he closes with an exasperated lament about doctrinal and rhetorical whiplash: if he were a religious-liberty advocate watching the court’s shifting stances, he says, he’d “wonder what’s driving all of these gymnastics.”
  • Judge Oldham dissented from the denial of en banc rehearing. Judge Oldham’s dissent starts by insisting this case is not about religion at all, but about a paid leafletting dispute over vegetarian ethics. Hershey, he says, alleges only that his “ethical beliefs compel him to share his message,” and that security told him to stop distributing leaflets—yet he never alleges the officers knew the content of the leaflets or targeted him for his views. Judge Oldham emphasizes you can “look in vain” for anything about “faith, religiosity, the First Amendment’s Religion Clauses, or evangelism,” apart from a passing reference to the “Christian Vegetarian Association” with no pleaded explanation of what that means for Hershey’s faith. Against that, Judge Oldham derides Judge Ho’s concurrence as an overreach that turns “a case about vegetarian ethics” into an epic about “street preaching, the Great Commission, hatred of Christians, and religious persecution dating back ‘thousands of years,’” calling it a “quixotic effort” that “tilts at windmills that appear nowhere in this case.” He also stresses the panel’s procedural mess—three judges, four opinions—and argues the resulting “deeply fractured” decision is exactly why the court should have gone en banc, because “future parties will need Venn diagrams” to discern what was actually held.
  • On the merits, Judge Oldham calls the panel’s Monell ruling the worst offense, accusing Judges Dennis and Ho of “turn[ing] the world upside down” and playing doctrinal “Calvinball.” In his view, Fifth Circuit law previously allowed single-incident Monell liability only in “very narrow” circumstances—failure to train on a clear duty in recurrent situations (the classic “guns but no training” example). The panel, he says, effectively lowers the bar to: allege “no training whatsoever” for the plaintiff’s particular scenario, even where the “ex ante risk…was infinitesimal,” enabling plaintiffs to “granulate allegations so finely” that municipal liability exists in “virtually every instance.” He flags anomalies: Monell is normally derivative of an underlying officer violation, yet the panel’s configuration (as he reads it) can make it so “no individual officer ever can be held liable … but every political subdivision can always be held liable.” He also warns the rule is both too much and too little—training on some unrelated First Amendment niche shouldn’t decide outcomes, yet Hershey offered “no evidence whatsoever” of a training failure or recurring risk. And he underscores the practical alarm bells: states urged rehearing because the rule invites proliferating suits, soaring discovery costs, and heavy burdens—especially on jails and prisons.
  • Judge Oldham then turns to qualified immunity, saying Judge Ho can’t coherently condemn circuit precedent as “terrible” while voting against en banc rehearing to fix it. If Villarreal II truly bars the “obviousness” exception in First Amendment cases, Oldham says that is “all the more reason” to rehear immediately; “‘This is terrible, so please do not fix it’ is an incoherent basis” for denying rehearing. But Judge Oldham’s key move is to dispute Judge Ho’s reading of Villarreal II: he argues it was a context-specific decision (valid statute, untainted intermediary, warrant) holding no “obvious” violation on those facts—not a categorical rejection of obviousness across the First Amendment. He says Judge Ho’s reading is the opposite of charitable because it would pit Villarreal II against Supreme Court guidance (e.g., obvious First Amendment protections like prayer) and against other circuits that recognize obviousness can matter in First Amendment qualified-immunity analysis. On Judge Oldham’s account, this is not “surprise switcheroo,” but simply “reading an opinion in the context in which it was decided.”
  • Finally, Judge Oldham circles back to what he sees as the concurrence’s “imaginary case” problem: even if the panel’s rules could affect religious liberty generally, nothing in Hershey’s pleadings makes Hershey a Christian evangelist. Courts must accept religious claims when pleaded, but here, Judge Oldham says, Hershey pleaded none—no Rome, no persecution, no Great Commission—only “a free speech right to hand out vegetarianism pamphlets for money.” He accuses the concurrence of abandoning party presentation—quoting a prior Judge Ho concurrence about courts as “passive instruments” that don’t “sally forth each day looking for wrongs to right”—and says the court is doing just that here. In the end, Judge Oldham portrays Judge Ho as (1) inflating the record into a persecution narrative, (2) reading precedent to create “catastrophic consequences” for religious liberty while oddly urging the court to keep the supposed catastrophe, and (3) celebrating a Monell expansion that will “benefit hardened criminals” and “saddle political subdivisions in every § 1983 case.” His closing sting mirrors Judge Ho’s own line: “You have to wonder what’s driving all of these gymnastics.”

• Cloud v. Bert Bell/Pete Rozelle NFL Player Retirement Plan, 25-10337, appeal from N.D. Tex.
  • Ho, J. (Clement, Graves, Ho) (oral argument), ERISA, attorneys’ fees
  • Reversing attorneys’ fee award to plaintiff in ERISA benefits case brought by former NFL player.
  • The Fifth Circuit reversed a nearly $1.8 million ERISA attorney’s-fee award to ex-NFL player Michael Cloud, holding that although a court may award fees under 29 U.S.C. § 1132(g)(1) in its discretion, the claimant must show “some degree of success on the merits”—and Cloud “won nothing” on the merits after an earlier panel reversed his benefits victory and entered judgment for the Plan. The panel explained the longstanding principle that “a successful party need not pay its unsuccessful adversary’s fees” governs absent clear congressional intent to the contrary, and that mere favorable factual findings amount at best to a “purely procedural victory,” akin to the “moral satisfaction” the Supreme Court found insufficient for fees in Hewitt v. Helms, where the plaintiff obtained no relief.

• CH Offshore, Ltd. v. Mexiship Ocean CCC S.A. de C.V., 24-20525, appeal from S.D. Tex.
  • Higginson, J. (Southwick, Higginson, Wilson) (oral argument), maritime law, amendment, arbitration
  • Vacating the district court’s order that had vacated a maritime writ of garnishment and denied plaintiff leave to amend its complaint, and remanding with instructions to grant plaintiff leave to amend its complaint.
  • Plaintiff-Appellant CH Offshore, a Singapore-based offshore vessel supplier, entered into a charter agreement with Mexico-based Mexiship Ocean for an offshore vessel. After the charter expired and Mexiship Ocean allegedly failed to pay charter hire and return the vessel, CH Offshore secured an arbitration award in Singapore requiring payment and return. Seeking enforcement in the U.S., CH Offshore invoked Rule B maritime garnishment to attach funds in a U.S. bank account that Mexiship Ocean was to receive under a settlement with a third party—but the account listed a related U.S. entity, Mexiship Texas, as beneficiary. The district court initially granted the writ, then vacated it after “limited discovery,” holding there was “no evidence supporting CH Offshore’s argument that Mexiship Ocean owned the funds,” and also denied CH Offshore leave to amend an alter ego claim.
  • The Fifth Circuit reversed. On the Rule B attachment issue, the panel emphasized that maritime attachment “is a distinctive admiralty remedy” and that ownership of the funds is critical; the district court erred by concluding there was “no evidence” without engaging the Settlement Agreement or evidence on control and ownership, including that the agreement itself stated the refund was owed to “Mexiship,” defined as Mexiship Ocean. The court stressed that “control, rather than named beneficiary status, is the primary determinant of ownership of bank accounts,” and that issues of ownership and control required careful factual analysis, not dismissal based on a bare assertion of lacking evidence.
  • On the request for leave to amend, the Fifth Circuit reiterated the strong “presumption in favor of allowing pleading amendments” under Rule 15, explaining that the district court’s terse denial—without reasoned analysis of delay, bad faith, futility, or prejudice—was an abuse of discretion. CH Offshore’s proposed alternative state-law attachment and alter ego basis presented “sufficient specificity” and plausible grounds that should have been considered. The court accordingly vacated the district court’s order and remanded with instructions to grant leave to amend.

• Aramark Services, Inc. v. Aetna Life Insurance Co., 24-40323, appeal from E.D. Tex.
  • Higginbotham, J. (Higginbotham, Jones, Southwick) (oral argument), Jones, J., dissenting in part; arbitration, ERISA
  • Affirming district court’s judgment that arbitrability was a question properly within its ambit, and holding that the plaintiffs sought equitable, rather than legal, relief.
  • This appeal arises from a dispute between Aramark Services, Incorporated and Aetna Life Insurance Company over the scope of an arbitration clause in their Master Services Agreement (MSA). Aramark sued Aetna in Texas federal court, alleging that Aetna—acting as a third-party administrator for Aramark’s self-funded ERISA health plans—breached fiduciary duties and engaged in prohibited transactions by approving improper claims, retaining undisclosed fees, and mishandling plan assets. Aetna responded by seeking to compel arbitration in a Connecticut federal court and moving to stay the Texas action under the Federal Arbitration Act. The district court denied the stay, holding that it—not an arbitrator—must decide arbitrability and that Aramark’s ERISA claims sought equitable relief outside the arbitration clause. Aetna appealed.
  • The Fifth Circuit affirmed that the threshold question of arbitrability belonged to the court because the MSA did not “clearly and unmistakably” delegate that question to an arbitrator. Although the arbitration clause incorporated the AAA Rules (which often signals delegation), it also contained a carve-out excluding claims seeking “injunctive relief or any other form of equitable relief.” Relying on Henry Schein and Archer & White, the court emphasized that when a carve-out appears in the same sentence as the delegation language, incorporation of arbitration rules is not dispositive. Reading the contract as a whole—and applying Connecticut contract principles, including contra proferentem—the court agreed with the district court that the carve-out applied to both “claims” and “controversies,” leaving courts to decide arbitrability for disputes seeking equitable relief.
  • Turning to the substance of Aramark’s claims, the court held that they are equitable, not legal, even though they seek monetary recovery. Drawing a sharp distinction between suits against non-fiduciaries and those against ERISA fiduciaries, the panel relied on CIGNA Corp. v. Amara and Fifth Circuit precedent (Gearlds) to conclude that monetary “make-whole” relief against a fiduciary for breach of duty constitutes an equitable surcharge. Aetna’s reliance on cases like Mertens, Great-West, Sereboff, and Montanile was misplaced because those decisions addressed claims against non-fiduciaries. Because Aetna was sued as an ERISA fiduciary, Aramark’s §§ 1132(a)(2) and (a)(3) claims fell squarely within traditional equitable relief.
  • Finally, the court rejected Aetna’s argument that the district court abused its discretion by refusing to stay the Texas action. The Texas case was first-filed, and Aetna chose to split its FAA motions between two courts—a strategy that did not compel deference or a stay. Having properly determined that arbitrability was for the court and that the claims were equitable and thus outside mandatory arbitration, the district court acted within its discretion in denying a stay.
  • Judge Jones dissented in part. Judge Jones concurs that arbitrability was for the court, but sharply dissents from allowing Aramark to pursue money damages against Aetna under ERISA § 502(a)(3), arguing the majority “mistakenly reads both Supreme Court authority and the limits of ‘typical’ equitable remedies.” In her view, Supreme Court precedent from Mertens through Great-West and Montanile draws a firm line: § 502(a)(3) authorizes only relief “typically available in equity”—such as injunctions or restitution of traceable funds—and “money damages are, of course, the classic form of legal relief.” She contends the Court’s discussion of surcharge in Amara was expressly dicta, later disavowed, and resting on a “fig leaf” distinction based on the identity of the defendant, a move inconsistent with ERISA’s text and structure. Judge Jones criticizes the Fifth Circuit’s post-Amara decision in Gearlds as implicitly overruled by Montanile, urges a return to Amschwand, and aligns with recent circuit authority rejecting make-whole monetary relief under § 502(a)(3). Applied here, she concludes Aramark’s complaint seeks compensatory damages for contract breach and plan misadministration—relief that is “not ‘typical equitable relief’ and is therefore impermissible”—and would reverse the district court on that ground.

• Kleinman v. City of Cedar Park, 25-50260, appeal from W.D. Tex.
  • Stewart, J. (Smith, Stewart, Haynes) (oral argument), due process, equal protection, preemption, Heck bar
  • Reversing district court’s dismissal of plaintiffs’ constitutional challenge to ordinance banning head shops as Heck-barred, and remanding for further proceedings; also affirming the district court’s dismissal of plaintiffs’ standalone water termination claim only.
  • The Fifth Circuit reversed the district court’s dismissal of challenges to Cedar Park’s “head shop” ordinance because the plaintiffs did not have a final conviction that could trigger the Heck bar. Michael Kleinman and associated entities opened a Planet K store selling smoking paraphernalia, which the City alleged violated its zoning ban on “head shops.” After municipal fines were imposed, Kleinman and AusPro appealed for a trial de novo in county court under Texas law, which “deprive[d] the municipal court’s judgment of any finality.” Because those criminal proceedings remain ongoing and there is “no final conviction, and Heck cannot yet apply,” the court held that the district court erred in treating the federal constitutional and statutory claims as Heck-barred.
  • The panel also rejected Cedar Park’s jurisdictional objections, explaining that a Heck-based dismissal is reviewable when the appeal targets “whether Heck even applies.” The Fifth Circuit remanded the case for further proceedings on the plaintiffs’ ordinance challenges, while affirming only the district court’s dismissal of a separate utility termination equal protection claim that the plaintiffs had abandoned.

• LIA Network v. City of Kerrville, 24-50788, appeal from W.D. Tex.
  • Davis, J. (Davis, Stewart, Ramirez) (oral argument), First Amendment, preliminary injunction, standing
  • Affirming in part and reversing in part district court’s judgment granting plaintiffs a preliminary injunction as to one provision of a city ordinance regulating “canvassing” and “soliciting” and district court’s denial of four other provisions of the ordinance, and remanding for further proceedings.
  • A grassroots advocacy group, Liberty in Action Network (“LIA”), and two individual residents sued the City of Kerrville, Texas, under 42 U.S.C. § 1983, challenging five provisions of a municipal ordinance regulating “canvassing” and “soliciting.” The ordinance defined canvassers broadly to include persons who contact residents at their homes to discuss religion, politics, or ideology, and solicitors to include door-to-door marketing or requests for donations, with multiple restrictions—such as limiting activity between “8:00 p.m. and 8:00 a.m.,” banning approaches to homes displaying “No Solicitors” signs, prohibiting solicitation in streets and medians, and imposing a permit requirement with background checks and fingerprinting. Plaintiffs alleged that these rules chilled their First Amendment speech, including political advocacy, fundraising, and commercial solicitation.
  • The Fifth Circuit first addressed whether the plaintiffs had Article III standing to mount pre-enforcement challenges. The court reaffirmed that in the First Amendment context, a credible threat of enforcement that chills speech is a sufficient injury. The panel held that plaintiffs had standing to challenge the hours, signs, streets, and permitting provisions because they intended to engage in protected activities that were “arguably proscribed” by the ordinance and because the City refused to disavow enforcement, meaning “potential penalties hang over plaintiffs’ heads like Damocles’ sword.” The court excluded the minor permitting provision from standing because there were no minor plaintiffs who would be subject to that provision.
  • On the merits, the panel made key doctrinal holdings about how the challenged provisions should be evaluated. It agreed that provisions targeting canvassing based on who is speaking and what they intend to say are content-based and therefore subject to strict scrutiny—meaning the City must show that the restriction is narrowly tailored to serve a compelling interest. As the court put it, restrictions that single out speech like political or religious door-to-door advocacy cannot be simply “deemed reasonable” without satisfying the highest constitutional standard. This was critical because the district court below had applied intermediate scrutiny to some of the provisions.
  • Applying these principles, the Fifth Circuit affirmed in part, reversed in part, and remanded the preliminary injunction decision. It held that the City failed to justify the hours and signage restrictions under strict scrutiny and remanded for the district court to reconsider whether those provisions should be enjoined. It also found the streets provision unconstitutional even under intermediate scrutiny because the City did not show it was justified in its scope. Meanwhile, the court affirmed that plaintiffs could challenge the permitting regime and agreed with the district court’s decision to enjoin it—but vacated the injunction as too broad, directing that relief be limited to these plaintiffs rather than all potential speakers.
  • The Fifth Circuit’s ruling refined the scope of constitutional review for local speech regulations, emphasizing that when a law targets speech based on content or speaker identity, courts must apply the most exacting scrutiny. As the panel explained, “content-based restrictions … are presumptively unconstitutional unless narrowly tailored to serve compelling interests.” The case was remanded to the district court for further proceedings consistent with these standards, including a fresh injunction analysis as to whether the remaining provisions should be preliminarily enjoined pending final judgment.

Unpublished decisions

• Faulk v. Owens Corning Roofing and Asphalt, LLC, 25-10356, appeal from N.D. Tex.
  • per curiam (Smith, Stewart, Haynes) (oral argument), employment discrimination, Title VII
  • Affirming summary judgment dismissal of plaintiff’s racial discrimination claims against former employer.

• Kolobotos v. City of Dallas, 25-10512, appeal from N.D. Tex.
  • per curiam (Graves, Ho, Douglas) (no oral argument), sec. 1983
  • Dismissing as frivolous plaintiff’s appeal from dismissal of claims.

• U.S. v. Hall, 25-10726, appeal from N.D. Tex.
  • per curiam (Stewart, Graves, Oldham) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Rangel-Salazar, 25-10822, appeal from N.D. Tex.
  • per curiam (Jones, Duncan, Douglas) (no oral argument), criminal, sentencing
  • Affirming conviction and sentence for illegal reentry.

• Ellis v. Garza-Lopez, 25-11076, appeal from N.D. Tex.
  • per curiam (Davis, Jones, Ho) (no oral argument), qualified immunity
  • Affirming qualified immunity-based dismissal of plaintiff’s sec. 1983 claims against officers who searched his car for marijuana.

• Davis v. Texas Municipal Police Association, 25-20116, appeal from S.D. Tex.
  • per curiam (Haynes, Duncan, Ramirez) (no oral argument), employment discrimination, Title VII
  • Affirming summary judgment dismissal of plaintiff’s employment discrimination claims.

• U.S. v. Barbosa-Morales, 25-30146, appeal from W.D. La.
  • per curiam (Haynes, Duncan, Ramirez) (no oral argument), criminal, supervised release
  • Affirming revocation judgment.

• Tierra Caliente Music Group, S.A. de C.V. v. Ser-Ca Discos, Inc., 24-40816, appeal from S.D. Tex.
  • per curiam (Smith, Stewart, Haynes) (oral argument), breach of contract, Digital Millenium Copyright Act, attorneys’ fees
  • Affirming judgment in favor of defendant on claims arising from recording and distribution contract, and affirming district court’s judgment limiting attorneys’ fee recovery under the DMCA.

• Zirus v. Zuiker, 25-50094, appeal from W.D. Tex.
  • per curiam (Jones, Duncan, Douglas) (no oral argument), prisoner suit
  • Vacating district court’s order converting government defendants’ motion to dismiss into a motion for summary judgment that the district court had then denied, and remanding for further proceedings.

• U.S. v. Roberson, 25-50331, apply for W.D. Tex.
  • per curiam (Stewart, Graves, Oldham) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Martinez-Corral, 25-50379, appeal from W.D. Tex.
  • per curiam (Davis, Jones, Ho) (no oral argument), criminal, sentencing
  • Affirming 14-month sentence on conviction of illegal reentry.

• U.S. v. Lozoya, 25-50391, appeal from W.D. Tex.
  • per curiam (Davis, Jones, Ho) (no oral argument), criminal, sentence reduction
  • Affirming denial of motion for sentence reduction.