Take the Fifth

Designated for publication

• Hershey v. City of Bossier City, 21-30754, appeal from W.D. La.
  • per curiam (Richman, Ho; Dennis on panel but not participating in this order) (oral argument at the merits stage), Ho, J., dissenting from denial of panel rehearing; municipal liability, qualified immunity, First Amendment
  • Denying petition for panel rehearing of October 7, 2025, opinion that had affirmed qualified immunity dismissal of police officers for enforcement of leaflet-distribution prohibition, but reversed dismissal of municipal liability claim against city. Although issued as a “per curiam” decision, there were actually a series of three individual opinions by each of the panel members that were nevertheless issued as a “per curiam” result, with Judges Dennis and Ho had joined in reversing the dismissal of the Monell claim, and Judges Richman and Ho had joined in affirming the qualified immunity dismissal of the officer defendants.
  • Dissenting, Judge Ho wrote, “I would have granted panel rehearing, and taken the en banc dissental [ed.: no en banc denial or dissent from a denial of en banc rehearing appears in the record] at its word, regarding its sudden and profoundly surprising change of heart on qualified immunity. Panel rehearing would have given Richard Hershey the opportunity to brief the qualified immunity issues that the dissental purportedly welcomed him to present. But I’m now reminded that ‘dissents . . . carry no legal force.’ Georgia v. Public.Resource.Org, Inc., 590 U.S. 255, 273 (2020). So whatever assurances Hershey thought he was getting, it turns out that ‘comments in a dissenting opinion about legal principles and precedents are just that: comments in a dissenting opinion.’ Id. (cleaned up). I regret that things have come to this. The judiciary possesses neither the sword nor the purse. All we have is our word.”

• Endure Industries, Inc. v. Vizient Inc., 24-10995, appeal from N.D. Tex.
  • Smith, J. (Smith, Stewart, Ramirez) (oral argument), antitrust
  • Affirming summary judgment dismissal of plaintiff’s antitrust claims.
  • The appellant, Endure Industries, a supplier of disposable medical supplies, sued Vizient, Inc. and affiliated group purchasing organizations (“GPOs”) alleging antitrust violations based on alleged monopolization and exclusionary conduct in markets for disposable medical supplies sold to hospitals. At the district court level, Vizient moved for summary judgment on the ground that Endure failed to define a legally sufficient relevant market, a foundational requirement in antitrust cases. The district court agreed, holding that Endure’s two proposed market definitions did not encompass all commodities reasonably interchangeable by consumers and granted summary judgment in Vizient’s favor.
  • On appeal, the Fifth Circuit focused solely on the market-definition issue. The court reaffirmed that under established antitrust law, a relevant product market must include all reasonably interchangeable products or services from the demand side. Endure’s first proposed “GPO market” excluded significant non-GPO sales channels, despite evidence that many hospitals purchase disposable medical supplies outside GPO arrangements. Its second proposed submarket, limited to Vizient members, failed to show that members were “locked in” and could not buy outside Vizient’s contracts. The appellate court held that in both respects Endure did not raise a genuine dispute of material fact to defeat summary judgment.

• U.S. v. Dubois, 24-11046, appeal from N.D. Tex.
  • Southwick, J. (Southwick, Higginson, Douglas) (no oral argument), criminal, sentencing
  • Vacating sentence that contained supervised release provision giving probation officer discretion to choose between requiring inpatient and outpatient treatment, and remanding for resentencing.
  • Brent Dubois had violated supervised-release terms and was resentenced to ten months’ imprisonment followed by supervised release with a condition requiring substance-abuse treatment, leaving to his probation officer the choice between inpatient or outpatient placement. Dubois argued this delegated a core judicial function to the probation office. The panel concluded that imposing such discretion in the context of a relatively short sentence (ten months) violated Article III and established precedent because decisions about treatment modality can significantly affect liberty interests and are part of the court’s sentencing power.
  • Applying plain-error review, the Fifth Circuit held that the delegation was “clear or obvious” under existing case law and affected Dubois’s substantial rights because impermissible delegation undermines the defendant’s right to have sentencing terms set by an Article III judge. The court rejected the government’s arguments for leaving the condition in place—including that it could be modified later or that the probation officer likely wouldn’t mandate inpatient treatment—and exercised its discretion to correct the error.

• Foster v. Jesel, 25-20122, appeal from S.D. Tex.
  • per curiam (Elrod, Smith, Wilson) (oral argument withdrawn), breach of contract, labor law, timeliness
  • Affirming dismissal as not timely filed a former employee’s claims against former employer, labor union, union president, and union representative on breach of contract and misrepresentation claims for failure to pursue grievances after she was terminated following an injury.
  • The Fifth Circuit held that Foster’s claims—premised on the union’s failure to pursue her grievance under the Railway Labor Act (RLA)—were barred by the six-month statute of limitations applicable to duty-of-fair-representation claims under the RLA because she filed more than two years after learning the union would not pursue arbitration. The Fifth Circuit also confirmed that her state-law breach of contract and misrepresentation claims were preempted by the RLA, and that the district court did not abuse its discretion in dismissing her complaint with prejudice since any amendment would have been futile.

Unpublished decisions

• U.S. v. Hensley, 24-10509, appeal from N.D. Tex.
  • per curiam (Southwick, Higginson, Wilson) (no oral argument), Higginson, J., concurring; criminal, Second Amendment, Commerce Clause
  • Affirming conviction of possession of a firearm by a felon.
  • Judge Higginson concurred separately, noting that the defendant’s appeal-waiver had been signed before the Court’s opinion in U.S. v. Diaz, “which charted a course unlike any other circuit’s § 922(g)(1) authority.” He concluded, “I am hopeful that when the Supreme Court considers our appeal waiver jurisprudence in United States v. Hunter, our waiver stringencies will be re-examined. See United States v. West, 138 F.4th 357, 360 (5th Cir. 2025) (Higginson, J., concurring in denial of rehearing en banc) (arguing that application of appeal waivers ‘should not cement more non-reviewability into our criminal justice system’); see also United States v. Hunter, No. 24-1063, 2025 WL 2885281 (U.S. Oct. 10, 2025) (granting certiorari to consider, inter alia, permissible exceptions to appeal waivers). Furthermore, the Criminal Rules Committee might consider a minimal revision to Federal Rule of Criminal Procedure 11. Requiring that a defendant be advised of not just ‘the terms of any plea-agreement provision waiving the right to appeal,’ Fed. R. Crim. P. 11(b)(1)(N) (emphasis added), but ‘the terms and consequences” of such a provision would be corrective of circuits, like ours, which countenance application of unforeseeable, post-plea developments that we might otherwise find to be reversible error.”

• Jones v. Torres, 25-10576, appeal from N.D. Tex.
  • per curiam (Stewart, Willett, Wilson) (no oral argument), civil
  • Dismissing appeal as frivolous.

• U.S. ex rel. Texas ex rel. Torres v. Abbott, 25-10671, appeal from N.D. Tex.
  • per curiam (Richman, Duncan, Douglas) (no oral argument), sec. 1983
  • Affirming dismissal of suit “alleging that the defendants used state agencies, Texas’s judicial system, and state and municipal government funds and resources to conceal a conspiracy and to retaliate against her.”

• Royal American Construction, Inc. v. Roofing Designs by JR, L.L.C., 25-20048, appeal from S.D. Tex.
  • per curiam (Smith, Stewart, Haynes) (oral argument withdrawn), construction law, judicial estoppel
  • Affirming dismissal of defendant’s counterclaims as barred by judicial estoppel due to representations made in separate bankruptcy proceedings.

• Imran v. Harper, 25-30370, appeal from W.D. La.
  • per curiam (Haynes, Duncan, Ramirez) (no oral argument), habeas corpus
  • Affirming dismissal of habeas claims challenging his immigration detention and imminent removal under the APA, the Suspension Clause, the Eighth Amendment, and the INA for lack of jurisdiction, dismissing request for attorneys’ fees; and remanding for consideration under § 2241 of his continued detention.

• U.S. v. Villarreal, 25-50273, appeal from W.D. Tex.
  • per curiam (King, Haynes, Ho) (no oral argument), criminal, sentencing
  • Affirming 27-month sentence on conviction of wire fraud and theft concerning programs receiving federal funds.

• U.S. v. Murphy, 25-50437, appeal from W.D. Tex.
  • per curiam (Smith, Higginson, Wilson) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.