Take the Fifth

Designated for publication

• Texas v. Bondi, 24-10386, appeal from N.D. Tex.
  • en banc (orally argued to merits panel), Quorum Clause, en banc
  • Ordering en banc rehearing of August 15, 2025, panel opinion (Graves, Higginson, Wilson [dissenting]) reversing district court’s judgment that the Quorum Clause of the Constitution requires physical presence by members of Congress to conduct votes, and vacating permanent injunction of portions of appropriations bill that had been challenged by Texas on the basis that it had been passed under COVID-19-related rules that allowed for votes by non-physically-present members.

• Allstate Indemnity Co. v. Bhagat, 25-20020, appeal from S.D. Tex.
  • Duncan, J. (Barksdale, Willett, Duncan) (oral argument), RICO, fraud
  • Reversing denial of insurer’s RICO and fraud claims against defendants who owned, managed, or operated a Houston medical center, and remanding for further proceedings.
  • Allstate sued several defendants connected with Memorial Heights Emergency Center in Houston, alleging they engaged in a fraudulent scheme to generate inflated emergency medical bills for car-accident patients referred by attorneys and to submit those bills indirectly to Allstate through settlement demands. The district court dismissed all of Allstate’s claims—including RICO (based on mail fraud), common-law fraud, conspiracy to defraud, unjust enrichment, and money-had-and-received—holding that Allstate failed to plead reliance, causation, and other elements, and even barred further amendment.
  • The Fifth Circuit reversed and remanded, concluding that the district court erred in multiple respects. The panel held that Allstate adequately pleaded its RICO claims by alleging mail fraud as the predicate act and showing proximate and but-for causation; that it pled fraud with the particularity required under Rule 9(b); and that its common-law fraud and conspiracy claims were sufficiently pled. The court also found that Allstate’s unjust enrichment and money-had-and-received claims should not have been dismissed. Accordingly, the court reversed the dismissal and remanded the case for further proceedings consistent with its opinion.

• Kewayfati v. Bondi, 25-20073, c/w de Maari v. Noem, 25-20101, appeal from S.D. Tex.
  • Willett, J. (Barksdale, Willett, Duncan) (oral argument), immigration, administrative law
  • Affirming dismissal for lack of jurisdiction appeal from nonfinal denials of two Venezuelan sisters’ affirmative-asylum applications.
  • In this consolidated appeal, two Venezuelan sisters with Temporary Protected Status (TPS) sought judicial review of denials of their affirmative asylum applications issued by U.S. Citizenship and Immigration Services (USCIS). They argued that because their TPS prevented immediate referral to removal proceedings, the denials were final agency actions subject to review under the Administrative Procedure Act (APA). The district courts dismissed their cases, concluding that the asylum denial letters did not constitute final agency action and thus there was no subject-matter jurisdiction for review.
  • The court applied the Supreme Court’s two-part test for final agency action from Bennett v. Spear, requiring (1) consummation of the agency’s decisionmaking process and (2) that the action determine rights or obligations or have legal consequences. It held that USCIS’s denials were preliminary and nonfinal because they did not complete the administrative process; asylum claims can still proceed later in removal proceedings where an Immigration Judge develops the record and issues a decision subject to Board of Immigration Appeals review. Thus, the denials did not mark the end of the executive branch’s decisionmaking and did not immediately affect the sisters’ legal rights.
  • The court further explained that TPS merely “freezes” an applicant’s immigration status and does not eliminate all future paths for asylum adjudication. A TPS beneficiary denied affirmative asylum can either seek asylum defensively in removal proceedings after relinquishing TPS or once TPS designation ends. Because USCIS’s letters did not foreclose those options, the denials were not final agency actions under the APA, and the Fifth Circuit lacked jurisdiction to review them at this stage.

• Rx Solutions, Inc. v. Caremark, LLC, 25-60084, appeal from S.D. Miss.
  • Wilson, J. (Southwick, Higginson, Wilson) (oral argument), antitrust law, jurisdiction
  • Affirming dismissal of federal antitrust claims, but reversing dismissal for lack of jurisdiction of state-law claims, and remanding for further proceedings.
  • Rx Solutions, a Mississippi retail pharmacy, alleged that Caremark and CVS colluded to use Caremark’s pharmacy benefit management (PBM) network to exclude Rx Solutions from the market in violation of Sections 1 and 2 of the Sherman Act and related Mississippi statutes. The Fifth Circuit agreed with the district court that the amended complaint failed to state viable federal antitrust claims because Rx Solutions did not plausibly define a relevant product or geographic market and failed to allege a cognizable antitrust injury—its alleged harm was only to a competitor, not to competition or consumers as required under antitrust law.
  • On jurisdiction and the state law claims, the Fifth Circuit reversed the district court’s conclusion that there was no diversity jurisdiction. The panel held that the record supported diversity of citizenship between the parties (Caremark’s LLC citizenship based on its members, and CVS as a Rhode Island corporation), meaning the district court should have retained jurisdiction over the state claims after dismissing the federal claims. The court thus affirmed dismissal of one of the Mississippi state claims for the same reasons as the antitrust claims, and remanded the remaining two state claims for further proceedings consistent with its opinion.

• South Texas Environmental Justice Network v. Texas Commission on Environmental Quality, 24-60580, petition for review of order of Civil Aeronautics Board Agency
  • Higginbotham, J. (Higginbotham, Ho, Douglas) (oral argument), Clean Air Act, standing
  • Denying petition for review of Texas Commission on Environmental Quality’s grant of a third extension of the construction deadline for a liquid natural gas terminal project.
  • The court framed its review within the applicable statutory and regulatory framework of the Clean Air Act’s delegation of authority to the EPA and states like Texas to enforce National Ambient Air Quality Standards (NAAQS) through state implementation plans (SIPs). Under Texas law, TCEQ may grant up to three extensions of a permit’s construction deadline, and the executive director had properly granted the contested third extension after reviewing Texas LNG’s expenditures and litigation delays in accordance with regulatory requirements.
  • The Fifth Circuit first addressed and rejected arguments that STEJN lacked Article III standing. The court found the organization and its members showed a concrete and particularized injury: threatened harm to their recreational, aesthetic, and religious interests from projected air pollution due to the extended construction timeline. The panel concluded that this threatened injury was fairly traceable to TCEQ’s decision and that a favorable judicial remedy—reconsideration on remand—could at least possibly redress STEJN’s claimed harms.
  • On the merits, the court applied substantial-evidence and arbitrary-and-capricious standards of review under Texas’s Administrative Procedure Act as incorporated by state law. After carefully reviewing the administrative record, the Fifth Circuit determined TCEQ’s approval of the extension was supported by substantial evidence and did not reflect a failure to engage in reasoned decision-making. Accordingly, the petition was denied and the agency’s extension allowance stands, leaving the Texas LNG project’s extended construction deadline intact.

• Fuentes-Pineda v. Bondi, 24-60592, petition for review of BIA order
  • Ho, J. (Clement, Graves, Ho) (oral argument), immigration
  • Denying Salvadoran citizen’s petition for review of BIA order r denying him deferral of removal under the Convention Against Torture.
  • The Fifth Circuit denied Jose Fuentes-Pineda’s petition for review of the BIA decision rejecting his request for deferral of removal under the Convention Against Torture (CAT), holding that substantial evidence supports the BIA and Immigration Judge’s determinations that (1) extreme prison conditions in El Salvador, while harsh, are not shown to be specifically intended by the government to inflict torture, and (2) although Fuentes-Pineda had been tortured in the past by Salvadoran authorities, his future risk of torture is too speculative to meet the CAT’s requirement that torture is “more likely than not.”

Unpublished decisions

• U.S. v. Munoz, 25-10626, appeal from N.D. Tex.
  • per curiam (Elrod, Stewart, Higginson) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Watts v. Thomas, 25-10783, c/w Watts v. Ortega, 25-10788, appeal from N.D. Tex.
  • per curiam (Higginbotham, Engelhardt, Ramirez) (no oral argument), prisoner suit
  • Vacating in part and affirming in part dismissal of Texas pre-trial detainee’s claims against jail staff, and remanding for further proceedings.

• U.S. v. Zavala-Garcia, 25-10895, appeal from N.D. Tex.
  • per curiam (Higginbotham, Engelhardt, Ramirez) (no oral argument), criminal, sentencing
  • Affirming conviction and sentence for illegal reentry.

• U.S. v. Hawkins, 25-40320, appeal from E.D. Tex.
  • per curiam (Elrod, Higginson, Ramirez) (no oral argument), criminal, sentence reduction
  • Affirming denial of motion for sentence reduction.

• Carmon v. Clean Harbors Deer Park, L.L.C., 24-40706, appeal from S.D. Tex.
  • per curiam (Richman, Higginson, Oldham) (no oral argument), employment discrimination
  • Affirming dismissal of employment discrimination claims.

• Kocak v. Harmony Public Schools, 25-50426, appeal from W.D. Tex.
  • per curiam (Davis, Wilson, Douglas) (no oral argument), employment discrimination
  • Affirming dismissal of employment discrimination claims.

• U.S. v. Chavez, 24-50548, appeal from W.D. Tex.
  • per curiam (Davis, Wilson, Douglas) (no oral argument), criminal
  • Dismissing appeal from sentence on conviction for conspiracy to commit healthcare fraud, on basis of appeal waiver in plea agreement.

• Cruz v. Bondi, 25-60231, petition for review of BIA order
  • per curiam (Davis, Wilson, Douglas) (no oral argument), immigration
  • Denying Honduran citizen’s petition for review of BIA order dismissing his appeal from an order of an immigration judge (IJ) denying asylum, withholding of removal, and protection under the Convention Against Torture.