Take the Fifth

Designated for publication

• Voice of the Experienced v. LeBlanc, 25-30478, appeal from M.D. La.
  • per curiam (voting for en banc rehearing: Jones, Smith, Ho, Duncan, Engelhardt, Oldham; voting against en banc rehearing: Elrod, Stewart, Richman, Southwick, Haynes, Graves, Higginson, Willett, Wilson, Douglas, Ramirez), Jones, J., dissenting from denial of en banc rehearing (joined by Smith, Ho, Duncan, Oldham), Higginson, J., concurring in denial of en banc rehearing (joined by Stewart, Graves, Douglas), Ho, J., dissenting from denial of en banc rehearing, Wilson, J., “respecting [concurring in? -ed.] the denial of rehearing en banc” (oral argument at panel stage); prisoner suit, injunction, mootness, en banc
  • Denying en banc rehearing of November 21 unpublished per curiam panel opinion (Davis, Stewart, Ramirez) dismissing as moot appeal from preliminary injunction against state, which injunction had expired under the Prison Reform Litigation Act, in plaintiff inmates and inmate organization challenge to conditions on Angola’s farm hard labor program.
  • Judge Jones dissented from the denial of en banc rehearing, contending that the full Fifth Circuit should have reviewed the case because the district court repeatedly flouted clear federal statutory requirements in the Prison Litigation Reform Act (PLRA)—specifically the mandate that preliminary injunctions in institutional prison cases automatically expire after 90 days absent required findings. She contended that the district court’s serial issuance of expiring injunctions without the PLRA’s mandated findings, and this court’s subsequent dismissals of appeals as moot, allowed a pattern of judicial evasion that effectively prevented meaningful appellate review and undermined the rule of law. Judge Jones warned that such “gamesmanship” threatens federalism and federal judicial authority, and she would have taken the case en banc to address the problem and ensure adherence to governing law.
  • Judge Higginson concurred with the denial of en banc rehearing, stressing judicial collegiality and restraint: he cautioned against appellate judges “rebuking” or “policing” the decisions of trial judges and urged respect for the trial court’s central role in administering justice. Citing the judicial philosophies of the late Judge Reavley and Judge Alvin Rubin, Judge Higginson’s concurrence emphasized that hyperbolic language and metaphor are often unhelpful in inter-court critiques, signaling a preference for a more measured tone in discussing disputes among judges even amid disagreement over procedural and statutory issues.
  • Judge Ho dissented from the denial of en banc rehearing, expressing regret that the full court will not reconsider the panel’s disposition, and emphasizing two main points: first, he wholeheartedly joined Judge Jones’s detailed critique of the district court’s repeated noncompliance with the Prison Litigation Reform Act (PLRA) and endorsed the broader principle that appellate courts must “police insubordination” in lower courts; and second, he stressed that the vote in favor of rehearing en banc in this case reaffirms key procedural norms—that neither the absence of a party’s en banc petition nor mere suggestions of mootness should prevent the court from granting rehearing and, when appropriate, from vacating mistaken panel precedent.
  • Judge Wilson authored a separate opinion “respecting the denial of rehearing en banc,” which essentially is a concurrence (as he, indeed, voted against en banc rehearing). He agreed that the serial preliminary injunctions the district court issued under the PLRA raised troubling questions about potential evasion of statutory limits—specifically, that repeatedly entering “new” preliminary injunctions every 90 days could effectively evade the PLRA’s expiration and appellate review framework. He acknowledged that, in this case involving Louisiana prisoners’ exposure to heat while working on a prison farm, the pattern of short-term injunctions that lapsed before this Court could review them was concerning and might not align with the PLRA’s requirements. However, he voted against en banc review because the specific mootness exception issue driving the dissent was not squarely presented to the panel, and he did not find the existing precedent (Smith v. Edwards) clearly irreconcilable with the panel decisions. He also observed that the underlying merits proceedings were advancing toward a permanent resolution, so he believed en banc resources were better conserved and that meaningful review could still occur within the PLRA’s procedural framework.

• Perez v. City of San Antonio, 23-50746, appeal from W.D. Tex.
  • per curiam (voting for en banc rehearing: Elrod, Smith, Higginson, Willett, Ho, Oldham; voting against en banc rehearing: Jones, Stewart, Richman, Southwick, Haynes, Graves, Duncan, Engelhardt, Wilson, Douglas, Ramirez) (oral argument at panel stage), Ho, J., dissenting from denial of en banc rehearing, Oldham, J., dissenting from denial of en banc rehearing (joined by Elrod, Smith, Higginson, Willett, Ho); First Amendment, mootness, en banc
  • Denying en banc rehearing of August 13, 2025, panel opinion (Stewart, Richman, Higginson; Higginson, J., dissenting in part) affirming district court’s preliminary injunction allowing plaintiffs access to park for religious ceremonies but declining to enjoin planned tree removal and cormorant rookery management measures.
  • Judge Ho dissented from the denial of en banc rehearing, explaining that he believes the panel decision reflects a flawed application of the Religious Freedom Restoration Act’s substantial-burden standard and fails to “apply[] the same standard to people of all faiths.” He stressed that governmental actions that destroy or severely alter a sincerely held sacred site impose a real and significant burden on the religious exercise of its practitioners, and that the majority’s reasoning—that plaintiffs still have general access to the park or that certain religious elements aren’t always present—misses the point of how their faith is practiced.
  • Judge Oldham dissented from the denial of en banc rehearing, expressing that he believes the panel majority egregiously mishandled the plaintiffs’ religious-freedom claim. Judge Oldham emphasized that the City’s plan to uproot trees and use lasers, pyrotechnics, and other measures to drive off cormorants at a site that Native American Church members hold sacred plainly imposes a substantial burden on their religious practices—burdening worship that depends on that specific “spiritual ecology.” According to Judge Oldham, the panel’s conclusion that there was no substantial burden rested on non sequiturs and a flawed understanding of both the statutory standard and the reality of Indigenous religious practices, improperly inviting comparisons to trivial or irrelevant burdens. He explained that treating Indigenous sacred sites differently than other forms of religious exercise undermines equal treatment and that the panel’s reasoning cannot be squared with how courts assess substantial burdens across faiths.

• Battieste v. U.S., 25-60111, appeal from S.D. Miss.
  • Graves, J. (Clement, Graves, Ho) (oral argument withdrawn), medical malpractice, timeliness
  • Affirming dismissal of medical malpractice suit against VA hospital as untimely.
  • The Fifth Circuit affirmed the district court’s dismissal of a Federal Tort Claims Act (FTCA) medical-negligence suit brought by the administratrix of Gene Battieste’s estate, holding that Mississippi’s medical-malpractice statute’s seven-year time limit is a statute of repose that absolutely bars claims filed more than seven years after the negligent act. The panel explained that under Mississippi law, the seven-year provision in Miss. Code Ann. § 15-1-36(2) operates as an outer limit on the right to sue, measured from the date of the alleged negligent act, and, because the estate filed suit eighteen years after the surgery, the claim was time-barred and dismissal was proper.

Unpublished decisions

• U.S. v. Gonzalez, 25-10615, appeal from N.D. Tex.
  • per curiam (Jones, Duncan, Douglas) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Torres, 25-10888, appeal from N.D. Tex.
  • per curiam (Wiener, Willett, Wilson) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Matthews, 25-11014, appeal from N.D. Tex.
  • per curiam (Jones, Duncan, Douglas) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Madrigal, 25-11040, appeal from N.D. Tex.
  • per curiam (Richman, Southwick, Willett) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Pietsch v. FMC Technologies, Inc., 24-20514, appeal from S.D. Tex.
  • per curiam (Barksdale, Willett, Duncan) (no oral argument), disability discrimination, Americans with Disabilities Act
  • Affirming summary judgment dismissal of ADA disability discrimination claim.

• U.S. v. Hamilton, 25-30136, appeal from W.D. La.
  • per curiam (Jones, Duncan, Douglas) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Venious v. Murrill, 25-30501, appeal from W.D. La.
  • per curiam (Wiener, Willett, Wilson) (no oral argument), prisoner suit, service of process
  • Affirming dismissal of prisoner’s challenge to sex offender registration law for failure to effect service of process and failure of prosecution of the claim.

• U.S. v. Rojas-Hernandez, 25-50270, appeal from W.D. Tex.
  • per curiam (Jones, Duncan, Douglas) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Moreno, 25-50731, c/w 25-50733, appeal from W.D. Tex.
  • per curiam (Higginbotham, Engelhardt, Ramirez) (no oral argument), criminal
  • Affirming conviction of possession of a firearm by a felon and revocation of supervised release.

• Polozkov v. Bondi, 25-60370, petition for review of BIA order
  • per curiam (Richman, Southwick, Willett) (no oral argument), immigration
  • Denying Russian citizen’s petition for review of BIA order dismissing his appeal from the denial of asylum, withholding of removal, and protection under the Convention Against Torture.

• Hernandez-Ramirez v. Bondi, 25-60536, petition for review of BIA order
  • per curiam (Higginbotham, Engelhardt, Ramirez) (no oral argument), immigration
  • Denying petition for review of BIA order affirming the immigration judge’s (IJ) denial of asylum, withholding of removal, and protection under the Convention Against Torture.