Take the Fifth

Designated for publication

• Devins v. Armstrong, 25-50713, appeal from W.D. Tex.
  • Wilson, J. (King, Higginson, Wilson) (no oral argument), immigration, Religious Freedom Restoration Act, res judicata
  • Withdrawing December 15, 2025, opinion and substituting new opinion affirming dismissal of challenge to denial of visa for foreign student plaintiff sought to sponsor under the Religious Freedom Restoration Act, but in change from original panel opinions finding that the dismissal as being with prejudice was an abuse of discretion and reversing and remanding.
  • In this case, pro se appellant James Devins sued the Assistant Secretary of State for Consular Affairs under the Religious Freedom Restoration Act (RFRA) after a U.S. consulate denied a student visa to a Nepali citizen he sought to sponsor as part of his religious practice. Devins’s third lawsuit stemmed from the same underlying facts as two earlier actions, both of which had been dismissed — once for lack of standing and once for lack of subject-matter jurisdiction under the consular non-reviewability doctrine. The district court dismissed the third complaint under Rule 12(b)(6) based on res judicata, concluding Devins could not relitigate claims already resolved against him, and dismissed the case with prejudice. The Fifth Circuit affirmed the dismissal on res judicata grounds, holding that all the elements were present: the same parties, same nucleus of operative facts, and prior final judgments as to Devins’s lack of standing and jurisdiction.
  • However, the appellate court reversed the district court’s decision to dismiss with prejudice. The Fifth Circuit explained that dismissals for lack of jurisdiction or standing ordinarily should be without prejudice, because a plaintiff could later demonstrate a change in circumstances that confers jurisdiction. Devins had alleged no new facts but the rule that dismissals for jurisdictional defects carry prejudice was an abuse of discretion, especially for a pro se litigant.

• La Union del Pueblo Entero v. Abbott, 24-50783, appeal from W.D. Tex.
  • Jones, J. (Jones, Engelhardt, Summerhays, by designation) (oral argument), election law, sovereign immunity
  • Reversing injunction against state officials from enforcing provision of Texas S.B. 1 to prevent professionally conducted ballot harvesting.
  • The appeal arises from several consolidated challenges to Section 276.015 of Texas’s election code—part of S.B. 1, a 2021 election-integrity statute designed to curb mail-ballot fraud. That provision criminalizes “vote harvesting services,” defined as in-person interactions with voters in the presence of ballots for the purpose of delivering votes for a specific candidate in exchange for compensation or other benefit. The plaintiffs, a coalition of civic and voter-engagement organizations, argued that the statute was unconstitutionally vague under the Due Process Clause and an impermissible content-based restriction on political speech under the First Amendment. The district court agreed, enjoining enforcement against state officials and county district attorneys, and the State appealed.
  • The Fifth Circuit reversed the district court’s judgment, starting with the fundamental principle that facial pre-enforcement challenges—especially to criminal statutes that have not yet been applied—are generally disfavored because they too often rest on speculation rather than concrete facts. The panel held the district court erred by invalidating the statute based on conjectural hypotheticals without a factual record showing how the law would be enforced. On vagueness, the court explained that a statute is only unconstitutionally vague if no standard of conduct is specified at all in all its applications. Here the text’s ordinary meaning, statutory definitions, and structure provided a “common-sense core of meaning” that juries can understand, and hypothetical questions about peripheral benefits (like water or bus fare for volunteers) did not demonstrate constitutional vagueness.
  • In rejecting the plaintiffs’ free-speech arguments, the panel reiterated that an overbreadth challenge requires showing that a substantial number of the statute’s applications are unconstitutional compared to its legitimate sweep. The court concluded that preventing paid operatives from harvesting votes in person advances compelling state interests in protecting ballot secrecy, preventing confusion or undue influence, and preserving election integrity. It held the statute is not overbroad simply because some hypothetical applications might affect speech; the provision’s core concerns legitimate regulation of potentially corrupt practices.
  • The Fifth Circuit also addressed procedural defects in the district court’s handling of sovereign-immunity issues. It found that the trial court erred in maintaining certain state officials as defendants and entering judgment against them, especially on identical issues then pending in another appeal. The panel clarified that county district attorneys—a factor with demonstrated willingness to enforce the challenged law—are appropriate defendants under the Ex parte Young exception to sovereign immunity. The court further recognized that intervenor Republican parties had standing to appeal based on alleged harm to their electoral interests.

• Neumann’s Pharmacy, L.L.C. v. Drug Enforcement Administration, 25-60068, petition for review of DEA order
  • Willett, J. (Elrod, Richman, Willett) (oral argument), administrative law
  • Vacating DEA order deregistering a Louisiana pharmacy on basis that deregistration decision is not supported by the Controlled Substances Act, and remanding for further proceedings.
  • Neumann’s Pharmacy, a Louisiana retail pharmacy, held a Controlled Substances Act (CSA) registration that the Drug Enforcement Administration (DEA) revoked after an administrative proceeding. The DEA alleged that Neumann’s repeatedly filled controlled-substance prescriptions flagged as problematic—“drug cocktails,” cash payments, therapeutic duplication, and prescriptions written by the pharmacist’s physician father in violation of Louisiana law—and that these practices violated federal regulations and state law. An Administrative Law Judge (ALJ) found Neumann’s violated several provisions and recommended deregistration, which the DEA Administrator adopted, revoking the pharmacy’s registration and denying any pending renewal or new registrations.
  • The Fifth Circuit explained that while the CSA gives the Attorney General—and by delegation the DEA Administrator—broad discretion to revoke registrations, that discretion is bounded by the agency’s own regulations and the Administrative Procedure Act (APA). Courts defer to agency policy judgments but will set aside agency action that is arbitrary, capricious, unsupported by law, or that misapplies its own regulations. The panel emphasized that if the DEA says it is applying a regulation, it must actually adhere to the text and structure of that regulation.
  • The court agreed with Neumann’s that the DEA misinterpreted key regulatory provisions. First, under 21 C.F.R. § 1306.04(a), liability attaches when a pharmacist fills an invalid prescription “not issued in the usual course” and does so “knowingly.” The DEA, however, treated any dispensing outside typical pharmacy practice as rendering a prescription invalid and treated knowledge of invalidity as unnecessary. The Fifth Circuit held that the regulation’s plain text requires that the prescription itself be invalid when issued and that the pharmacist knowingly filled such an invalid prescription—interpretations the DEA’s reasoning could not be squared with the regulation’s grammar and structure.
  • Because the DEA misapplied its own regulations and relied on readings that the governing texts would not bear, the Fifth Circuit concluded the deregistration order was arbitrary and capricious. It did not reach every alternative argument but held that the agency’s core analytical errors required vacating the agency’s order.

• Cooper v. State Farm Fire & Casualty Co., 24-60466, appeal from S.D. Miss.
  • Southwick, J. (Jones, Southwick, Oldham) (no oral argument), Oldham, J., dissenting; insurance
  • Affirming summary judgment for insurer on coverage dispute regarding policy exclusion for damage caused by off-premises sewage.
  • Judge Southwick, writing for the panel, affirmed the district court’s grant of summary judgment for the insurer. The Coopers’ home suffered a catastrophic sewage backup in 2022, and they filed a claim under their homeowners policy with State Farm. The policy’s Coverage A insured against physical loss to the dwelling but unambiguously excluded damage from off-premises sewage, while an extra “Back-Up of Sewer or Drain” (BUSD) endorsement provided capped coverage for such off-premises events. The district court found—and Southwick agreed—that there was no genuine dispute of material fact about the sewage’s source: expert evidence showed the sewage came from the subdivision’s pressurized sewer system off the Coopers’ property, triggering only the BUSD endorsement. The majority applied Mississippi law to hold that summary judgment was proper because the plain language of the policy and endorsement controlled and barred broader Coverage A recovery.
  • The Court likewise rejected the Coopers’ argument that State Farm’s adjuster, Dilley, had represented that coverage would apply generally and thus bound the insurer. Under Mississippi law, an adjuster’s statements can bind an insurer only if made with actual or apparent authority; but the Coopers offered no evidence of actual authority, and any apparent authority could not overcome the unambiguous contract language. Because insureds are charged with constructive knowledge of their policy’s terms and reliance on statements that contradict clear exclusions is unreasonable, the Coopers failed to show a triable issue on detrimental reliance.
  • Judge Oldham dissented. He framed the case as one where the Coopers purchased homeowners insurance precisely to protect against catastrophic events like a raw-sewage backup, reported the loss promptly, and were told by the insurer’s adjuster—Adam Dilley—what would and would not be covered. Judge Oldham emphasized that Dilley, sent by State Farm to inspect and make coverage decisions, reviewed the policy, walked the Cooper home, and gave explicit instructions on costly repairs the Coopers should undertake, including telling them that certain replacements would be covered. Under Mississippi law, he explained, State Farm bore the burden to prove that its sewage exclusion applied, and any ambiguity in exclusionary clauses must be interpreted in favor of coverage. Judge Oldham concluded that genuine disputes of material fact existed, including (1) whether Dilley’s interpretation of the exclusion and coverage decisions reflected uncertainty about the exclusion’s application and (2) whether the Coopers reasonably relied on Dilley’s statements to their detriment, precluding summary judgment.
  • Judge Oldham also explicitly rebuffed the majority’s two principal rationales. First, he disagreed that Dilley lacked authority to bind State Farm; the majority’s view misassigned burdens and overlooked that State Farm sent Dilley with authority to make coverage decisions. He stressed that the Coopers’ reliance on Dilley’s statements was reasonable because Dilley had no evidence about the sewage’s source when he made coverage decisions, and any uncertainty in his actions should benefit the insureds. Second, he rejected the majority’s reliance on Leonard v. Nationwide (and similar rules that statements conflicting with clear policy language are unreasonable) as inapposite to an adjuster’s on-site coverage decisions. In Judge Oldham’s view, the Coopers had a right to have these factual disputes resolved by a jury, not decided against them summarily, and State Farm should have to justify its post-inspection reversal rather than win as a matter of law.

Unpublished decisions

• U.S. v. Randall, 25-10841, appeal from N.D. Tex.
  • per curiam (King, Haynes, Ho) (no oral argument), criminal, sentencing
  • Affirming conviction and sentence for possession of a firearm by a felon, including that prior Texas convictions for burglary are violent felonies under the Armed Career Criminal Act.

• Fountaine v. U.S. Bank National Association, 25-20085, appeal from S.D. Tex.
  • per curiam (Jones, Duncan, Douglas) (oral argument), foreclosure
  • Affirming judgment in favor of plaintiff on declaratory judgment action that deed of trust securing mortgage had been released by payment of lower payoff amount than sought by defendant.

• Tatum v. Gardner, 25-20260, appeal from S.D. Tex.
  • per curiam (Richman, Southwick, Willett) (no oral argument), Title VII, employment discrimination
  • Affirming dismissal of Title VII claims against individual defendants who were officials with the plaintiff’s employer.

• U.S. v. Aycock, 25-20321, appeal from S.D. Tex.
  • per curiam (Jones, Duncan, Douglas) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Vahora, 24-20538, appeal from S.D. Tex.
  • per curiam (Richman, Southwick, Willett) (no oral argument), criminal, sentencing
  • Affirming 188-month sentence on conviction of conspiracy to commit mail fraud.

• U.S. v. Williams, 25-30347, appeal from W.D. La.
  • per curiam (Richman, Southwick, Willett) (no oral argument), criminal, sentencing
  • Affirming 240-month sentence on conviction of possession with intent to distribute 50 grams or more of methamphetamine.

• U.S. v. Gonzales, 25-40166, appeal from S.D. Tex.
  • per curiam (Jones, Duncan, Douglas) (no oral argument), criminal, sentencing
  • Vacating in part and remanding with instructions to amend the written judgment to conform with the orally pronounced conditions of supervised release by removing unpronounced standard conditions.

• Kerns v. Dickson, 25-40349, appeal from E.D. Tex.
  • per curiam (Richman, Engelhardt, Wilson) (no oral argument), § 1983, timeliness
  • Affirming dismissal of § 1983 claims arising from investigation and arrest of plaintiff by Texas Southwestern Cattle Raisers Association Special Ranger.

• Young v. College, 25-40433, appeal from E.D. Tex.
  • per curiam (Graves, Ho, Douglas) (no oral argument), appellate jurisdiction
  • Dismissing for lack of appellate jurisdiction appeal from interlocutory order dismissing motion for summary judgment without prejudice as premature.

• U.S. v. Chavez-Sanchez, 25-40515, appeal from S.D. Tex.
  • per curiam (Jones, Duncan, Douglas) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Smith, 25-60120, appeal from N.D. Miss.
  • per curiam (Barksdale, Graves, Duncan) (no oral argument), criminal, sufficiency of evidence
  • Affirming conviction of aiding and abetting wire fraud and conspiracy to commit wire fraud.

• Santos-Aguiriano v. Bondi, 25-60363, petition for review of BIA order
  • per curiam (Barksdale, Graves, Duncan) (no oral argument), immigration
  • Denying in part and dismissing in part Honduran citizen’s petition for review of BIA order affirming an Immigration Judge’s (IJ) denying her application for asylum, withholding of removal, protection under the Convention Against Torture (CAT), and her motion for continuance.

• Wogan v. Rose, 25-60439, appeal from S.D. Miss.
  • per curiam (Jones, Duncan, Douglas) (no oral argument), qualified immunity
  • Reversing denial of qualified immunity to officer defendants on claims arising from search and detention of plaintiffs upon officers finding them sleeping in their car in a mall parking lot in the middle of the night, and rendering judgment dismissing claims.

• Faris v. Bondi, 24-60640, petition for review of BIA order
  • per curiam (Jones, Engelhardt, Summerhays, by designation) (no oral argument), immigration
  • Denying Palestinian resident’s petition for review of BIA order dismissing appeal from IJ’s denial of application for asylum, withholding of removal, and protection under the Convention Against Torture.