Take the Fifth

Designated for publication

• Kincannon v. United Airlines, 24-10708, appeal from N.D. Tex.
  • Engelhardt, J. (Higginson, Willett, Engelhardt) (oral argument), Willett, J., concurring in part; class action, employment, Americans with Disabilities Act
  • Affirming district court’s rejection of two proposed classes and certification of one modified subclass of United Airlines employees who sought religious accommodations from COVID-19 vaccine mandate and who were accommodated with unpaid leave.
  • Workers could seek exemptions from United Airlines’ 2021 COVID-19 vaccine mandate for religious beliefs or medical conditions, but United initially planned to place all exempt employees on indefinite unpaid leave until the pandemic subsided. Employees who sought accommodations sued under Title VII and the ADA, alleging that forcing them to choose between vaccination and unpaid leave constituted unlawful discrimination and failure to provide reasonable accommodations. Earlier proceedings included a temporary restraining order and appellate rulings addressing preliminary-injunction issues, after which the litigation returned to the district court for class-certification proceedings.
  • Plaintiffs sought certification of three classes: (1) a broad Rule 23(b)(2) class seeking injunctive relief for all employees requesting religious or medical accommodations; (2) a Rule 23(b)(3) masking-and-testing subclass for workers allowed to keep working under strict masking and testing requirements; and (3) a Rule 23(b)(3) unpaid-leave subclass for employees placed on unpaid leave after receiving accommodations. The district court rejected the first two groups but certified a narrower version of the unpaid-leave subclass limited to employees asserting religious-accommodation claims (excluding ADA claimants). Both sides appealed under Rule 23(f).
  • Before reaching the merits, the court addressed whether the named plaintiffs—Kincannon and Sambrano—had standing to challenge the denial of the other proposed classes. United contended they were not “aggrieved” because they belonged only to the certified subclass. The Fifth Circuit rejected that argument, explaining that parties may appeal class-certification rulings when they have a personal stake in broader certification, such as spreading litigation costs or increasing potential recovery. Because the plaintiffs sought certification of larger classes that could expand damages and fee recovery, they were sufficiently aggrieved to appeal the district court’s partial denial of certification.
  • Turning to the merits, the court emphasized the deferential abuse-of-discretion standard applied to class-certification decisions. A party seeking certification must satisfy Rule 23(a)’s prerequisites—numerosity, commonality, typicality, and adequacy—and also meet one of Rule 23(b)’s categories. The opinion stresses that class actions are “an exception to the usual rule” of individual litigation and that plaintiffs must affirmatively demonstrate that the proposed class is cohesive and susceptible to common proof. These requirements become especially demanding for Rule 23(b)(3) classes, where common questions must predominate over individualized issues.
  • The Fifth Circuit upheld the district court’s refusal to certify the broad injunctive-relief class and the masking-and-testing subclass. The panel agreed that the putative members did not suffer a uniform injury from United’s policy: some employees took the vaccine, others accepted unpaid leave, and others left the company. Because damages—especially punitive damages—would require individualized determinations regarding each employee’s circumstances and harm, monetary relief would predominate rather than remain incidental to injunctive relief. Similarly, the masking-and-testing subclass lacked commonality because employees allegedly experienced different harms (communication difficulties, harassment, breathing issues, etc.), making the claims unsuitable for resolution through classwide proof.
  • Finally, the court affirmed the district court’s certification of the religious-accommodation unpaid-leave subclass under Rule 23(b)(3). Unlike the rejected classes, this group shared a common alleged injury: being placed on unpaid leave after requesting religious accommodation. The district court reasonably concluded that the legality of United’s policy toward these employees presented common questions that predominated over individualized issues. Because the district court’s careful tailoring of the class addressed concerns about variation among claimants—particularly by excluding medical-accommodation claims—the Fifth Circuit held that the certification decision fell within the court’s broad discretion.
  • Judge Willett agrees with the ultimate judgment affirming the district court’s class-certification decision but writes separately to caution against resolving more legal questions than necessary. He begins by reflecting on the dual nature of class actions: they are powerful tools that can vindicate small but legitimate claims and promote efficiency, yet they also carry risks such as unfair pressure on defendants and loss of control for absent class members. Because of those risks, Rule 23 imposes demanding certification requirements and entrusts district courts with broad discretion to apply them. Judge Willett stresses that appellate review must therefore be highly deferential: certification decisions belong primarily to trial judges “on the front lines,” not appellate courts “on the sidelines.” For that reason, he agrees that the district court did not abuse its discretion in rejecting some proposed classes and certifying the narrower unpaid-leave subclass.
  • Judge Willett parts ways with the majority, however, over its reasoning that religious sincerity is a common issue capable of classwide resolution. In his view, that question is unnecessary to the result and should have been left undecided. Determining whether someone sincerely holds a religious belief is inherently individualized and credibility-based, since “[t]he sincerity of a person’s religious belief is a question of fact unique to each case.” Evidence about one employee’s faith sheds little light on another’s, and a factfinder typically must assess each claimant’s credibility individually. Thus, Judge Willett doubts that sincerity can truly be resolved “in one stroke,” as Rule 23 commonality requires. Still, he concurs in the judgment because other common issues—such as the reasonableness of United’s unpaid-leave accommodation and whether alternative accommodations would impose undue hardship—were sufficient to support certification under the highly deferential abuse-of-discretion standard.

• U.S. ex. rel. Ferguson v. Lockheed Martin Corp., 24-10713, appeal from N.D. Tex.
  • Graves, J. (Jones, Graves, Rodriguez, by designation) (oral argument), Jones, J., dissenting; Rodriguez, J., concurring; False Claims Act
  • Reversing dismissal of FCA qui tam action on lack of jurisdiction due to FCA’s first-to-file bar.
  • Judge Graves’s majority opinion addresses whether a later-filed qui tam action under the False Claims Act (FCA) is barred by the statute’s “first-to-file” rule, which prevents relators from bringing a related action based on the same underlying facts as an earlier pending suit. The case involves relator Ferguson, who alleged that a government contractor (Lockheed) violated the Truth in Negotiations Act (TINA) by submitting inaccurate cost-or-pricing data in defense contracts. The district court dismissed Ferguson’s complaint for lack of jurisdiction, reasoning that a prior FCA suit filed by another relator, Girard, already alleged substantially the same fraud and therefore triggered the first-to-file bar. Judge Graves begins by explaining the FCA’s structure and purpose: it encourages whistleblowers to expose fraud against the government but limits duplicative suits to prevent “parasitic” litigation that merely builds on earlier allegations. Under Fifth Circuit precedent—especially Branch Consultants v. Allstate—courts determine whether the bar applies by comparing the complaints and asking whether the later action alleges the same “material elements” or “essential facts” of fraud.
  • Applying that framework, Judge Graves concludes that the district court interpreted the first-to-file bar too broadly. While both lawsuits accuse Lockheed of violating TINA, the majority stresses that the inquiry focuses on the underlying factual scheme, not merely the statutory violation. Comparing the complaints side-by-side, the court finds that Ferguson’s allegations involve different mechanisms of fraud and different evidentiary proof, rather than simply adding details or geographic scope to Girard’s allegations. Fifth Circuit precedent bars copycat suits that merely expand an existing scheme, but it does not preclude claims describing distinct fraudulent schemes that the earlier complaint would not have alerted the government to investigate. Because Ferguson alleged materially different fraudulent conduct—even though it arose in the same industry and involved the same statute—the government would not necessarily have discovered her allegations from the earlier suit alone.
  • Judge Rodriguez concurred, writing separately to clarify how the False Claims Act’s first-to-file rule should be applied and to explain why, in his view, the earlier relator’s lawsuit did not bar Ferguson’s action. He agrees with the majority that the earlier Girard complaint did not foreclose Ferguson’s claims, but he approaches the analysis more narrowly. Judge Rodriguez emphasizes that the first-to-file rule bars only “related actions based on the same material facts of fraud.” The key inquiry is whether the earlier complaint would have put the government on notice of the specific fraudulent scheme later alleged. In his reading, Girard’s complaint described one particular theory of how Lockheed allegedly violated the Truth in Negotiations Act during contract negotiations, while Ferguson’s complaint alleged a different scheme involving different cost-or-pricing misrepresentations and different contractual circumstances. Because the earlier complaint would not necessarily have led investigators to uncover Ferguson’s allegations, Judge Rodriguez concludes that the later suit is not the sort of duplicative or “parasitic” litigation the statute seeks to prevent.
  • Judge Rodriguez also writes at length about the purpose and limits of the FCA’s first-to-file bar, cautioning against interpretations that sweep too broadly and discourage legitimate whistleblowers. He explains that the statute aims to strike a balance: it prevents copycat suits that merely echo existing allegations, but it should not shut the courthouse doors to relators who uncover distinct fraud that the government has not yet been alerted to investigate. Applying that principle, he underscores that courts must focus on the substance of the alleged fraudulent scheme, not simply the identity of the defendant, the statutory violation, or the general industry involved. Because Ferguson’s allegations present a meaningfully different factual theory of fraud, Judge Rodriguez concludes that the first-to-file rule does not apply and therefore agrees that the case should be reversed and remanded for further proceedings, while clarifying the analytical framework future courts should use when evaluating FCA first-to-file disputes.
  • Judge Jones dissented, contending that the majority misapplies the Fifth Circuit’s controlling precedent in U.S. ex rel. Branch Consultants v. Allstate and that the False Claims Act’s first-to-file bar should preclude Ferguson’s suit. In her view, the earlier Girard qui tam action already alleged the same essential fraud against Lockheed Martin involving aircraft contracts and violations of the Truth in Negotiations Act (TINA), particularly in connection with the F-35 Joint Strike Fighter program during roughly 2008–2018. Judge Jones emphasizes that the Fifth Circuit’s “essential facts” or “material elements” test bars later suits that rely on the same core fraudulent conduct even if the relator frames the scheme differently or provides additional detail. Because both complaints accuse Lockheed of overcharging the government through improper cost-or-pricing data in defense contracts, she contends the later complaint merely repackages an already-alleged fraud and would not have meaningfully expanded the government’s knowledge of the misconduct. Accordingly, Judge Jones concludes that the district court correctly dismissed the case under § 3730(b)(5) and that the majority improperly narrows the first-to-file rule designed to prevent duplicative or opportunistic FCA litigation.

• Barber v. Rounds, 25-20125, appeal from S.D. Tex.
  • Wilson, J. (Elrod, Smith, Wilson) (oral argument), First Amendment, qualified immunity, equal protection
  • Affirming in part and reversing in part denial of qualified immunity to school principal sued in his individual capacity for violating a teacher’s First Amendment free-speech and free-exercise rights and Fourteenth Amendment equal protection rights when principal forbade her from praying whn in view of other students.
  • The Fifth Circuit addressed whether a school official was entitled to qualified immunity in a lawsuit brought by a public-school teacher who alleged that she was prohibited from engaging in visible religious prayer. The teacher claimed that the principal instructed her that she could not pray where students might see her, including during a student-led “See You at the Pole” prayer event. She asserted violations of the First Amendment (free speech and free exercise) and the Fourteenth Amendment. The district court dismissed her due-process claim but allowed the First Amendment and equal-protection claims to proceed and denied the principal’s qualified-immunity defense.
  • The Fifth Circuit affirmed in part and reversed in part. Accepting the complaint’s allegations as true at the motion-to-dismiss stage, the court held that the principal was not entitled to qualified immunity on the teacher’s First Amendment claims because the complaint plausibly alleged a categorical prohibition on private religious expression whenever students might observe it. Relying on Kennedy v. Bremerton School District, the panel concluded that existing precedent clearly established that school officials cannot impose visibility-based bans on a teacher’s personal religious exercise outside official duties. However, the court ruled that the teacher failed to plausibly allege that the principal personally engaged in differential treatment sufficient to support an equal-protection claim, so the principal was entitled to qualified immunity on that claim.

• Savage v. LaSalle Management Co., 25-30259, appeal from W.D. La.
  • Higginson, J. (Smith, Wiener, Higginson) (no oral argument), employment discrimination, sanctions
  • Affirming order excluding plaintiffs’ evidence as a discovery sanction, and granting motion to dismiss employment discrimination claim.
  • The Fifth Circuit affirmed the district court’s dismissal with prejudice of a plaintiff’s employment discrimination and retaliation suit after years of failure to prosecute the case. The plaintiff filed suit in 2021, but over the next four years his counsel repeatedly failed to participate in discovery, ignored court orders, and missed deadlines despite multiple continuances and monetary sanctions. As trial approached with virtually no discovery completed, the district court granted the defendants’ motion to exclude all of the plaintiff’s evidence as a discovery sanction under the standard articulated in Hamburger v. State Farm, concluding that the delays prejudiced the defendants and that further continuances would be futile. With no admissible evidence remaining, the court then dismissed the case with prejudice for failure to prosecute. The Fifth Circuit held that the district court did not abuse its discretion in either excluding the evidence or dismissing the case, emphasizing the “clear record of delay,” the ineffectiveness of lesser sanctions already imposed, and the prejudice to defendants caused by the plaintiff’s prolonged failure to develop or disclose his claims.

• U.S. v. Ponce, 24-40632, appeal from S.D. Tex.
  • Higginson, J. (Southwick, Higginson, Douglas) (oral argument), criminal, search and seizure
  • Affirming denial of motion suppress arising from search of defendant’s vehicle by border patrol agent.
  • The Fifth Circuit affirmed the denial of a motion to suppress evidence obtained during a search at a Border Patrol checkpoint in Sarita, Texas. Border Patrol Agent Carlos Garcia asked defendant Juan Jose Ponce for permission to open the rear hatch of his SUV during a routine immigration stop, and Ponce consented. When the hatch was opened, the agent noticed suspicious circumstances—including a ladder stored inside despite a roof rack, clutter in the cargo area, and a partially unscrewed speaker box that agents knew was sometimes used to conceal people. Based on these observations and his experience, the agent opened the speaker box and discovered a woman unlawfully present in the United States, leading to Ponce’s prosecution for transporting an undocumented person. The Fifth Circuit held that although Ponce consented only to opening the hatch and looking inside, the agent’s observations during that consensual inspection created probable cause to search the vehicle and containers within it. Considering the totality of the circumstances and the agent’s experience, the court concluded the search was consistent with the Fourth Amendment.

• Ayestas v. Harris County District Attorney’s Office, 25-70014, appeal from S.D. Tex.
  • Smith, J. (Smith, Southwick, Ho) (oral argument), Southwick, J., dissenting; habeas corpus
  • Vacating district court’s order of discovery of thirty years of DA office’s charging documents in habeas petitioner’s selective-prosecution claim that DA factored his non-citizen status into its decision to seek the death penalty, and dismissing petitioner’s selective-prosecution claim for lack of jurisdiction.
  • Judge Smith first determined that the Harris County District Attorney’s Office (HCDA)—a nonparty subject to a discovery subpoena—could immediately appeal under the collateral-order doctrine, because the discovery order conclusively required disclosure of privileged prosecutorial materials and would otherwise evade meaningful review. The panel also concluded that HCDA had standing to appeal even though it had not objected to the magistrate judge’s order in the district court, explaining that the rule requiring objections to magistrate orders applies to parties, not nonparties, and that HCDA had participated in the proceedings and faced a direct stake in whether it would be forced to disclose decades of internal prosecutorial files.
  • Turning to the merits, the majority held that the district court lacked jurisdiction over the petitioner’s selective-prosecution claims because they constituted a second or successive habeas application barred by 28 U.S.C. § 2244(b). The claims—based on a prosecutor’s memorandum allegedly referencing race and citizenship—were first raised in a 2015 motion to amend filed while a Rule 59(e) motion was pending and later reasserted through a Rule 60(b) motion. Judge Smith concluded that neither filing avoided AEDPA’s restrictions: the amendment sought to introduce new constitutional claims that “could have been but were not raised” before judgment, and the later Rule 60(b) motion likewise attempted to add new grounds for relief rather than merely attack a procedural defect. Because those claims were successive and failed to meet the statutory exceptions for new constitutional rules or previously undiscoverable facts, the district court had no authority to reopen the case or order discovery.
  • Judge Southwick dissented on the ground that the Fifth Circuit lacked appellate jurisdiction to review the district court’s discovery order. In his view, the order compelling the Harris County District Attorney’s Office to produce prosecutorial materials did not qualify for immediate review under the collateral-order doctrine, because discovery rulings—even those directed at nonparties—ordinarily must await final judgment before appellate review. Southwick emphasized that the Supreme Court has repeatedly warned against expanding collateral-order jurisdiction and has treated discovery orders as paradigmatically non-appealable interlocutory rulings. He reasoned that any claimed privilege or burden from the subpoena could be addressed through the normal post-judgment process or through other established mechanisms for resisting discovery, and therefore the order did not present the kind of irreparable harm necessary to justify immediate appeal. Because he believed the court lacked jurisdiction to hear the appeal at all, Southwick would have dismissed the appeal and left the discovery order in place, declining to reach the majority’s analysis of the successive-habeas issue.

Unpublished decisions

• U.S. v. Leyva-Arranaga, 25-10674, appeal from N.D. Tex.
  • per curiam (Higginbotham, Higginson, Engelhardt) (no oral argument), criminal, sentencing
  • Affirming conviction and sentence for illegal reentry.

• U.S. v. Barrientos, 25-10912, appeal from N.D. Tex.
  • per curiam (Wiener, Willett, Wilson) (no oral argument), criminal, guilty plea
  • Affirming conviction of production of child pornography and possession of a machine gun, holding appeal issues barred by appeal-waiver in plea agreement.

• U.S. v. Nino, 25-10918, 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. Lopez-Aguirre, 24-10963, 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. Hill, 25-20438, appeal from S.D. Tex.
  • per curiam (Stewart, Willett, Wilson) (no oral argument, habeas corpus
  • Dismissing for lack of jurisdiction appeal from denial of motion requesting unsealing of transcripts and wire-tap evidence.

• U.S. v. Hernandez-Lopez, 25-20509, appeal from S.D. Tex.
  • per curiam (Clement, Richman, Willett) (no oral argument), criminal, pretrial detention
  • Dismissing as moot appeal from order denying release from pretrial detention pending trial for illegal reentry.

• Rodriquez v. Meta Platforms, Inc., 25-30297, appeal from E.D. La.
  • per curiam (Clement, Richman, Willett) (no oral argument), civil
  • Affirming judgment for defendant, with no description of claims or issues on appeal.

• U.S. v. Lawrence, 25-30354, appeal from W.D. La.
  • per curiam (Higginbotham, Engelhardt, Ramirez) (no oral argument), criminal, sentencing
  • Affirming 140-month sentence on conviction of a drug conspiracy offense.

• U.S. v. Parker, 25-30361, appeal from W.D. La.
  • per curiam (Wiener, Willett, Wilson) (no oral argument), criminal, sentencing
  • Affirming 82-month sentence on conviction of possession of a firearm by a felon.

• U.S. v. Zeno, 25-30367, appeal from W.D. La.
  • per curiam (Richman, Southwick, Willett) (no oral argument), criminal, sentencing
  • Affirming 282-month sentence on conviction of conspiracy to distribute methamphetamine.

• Molitor v. City of Sulphur, 25-30432, appeal from W.D. La.
  • per curiam (Elrod, Higginbotham, Graves) (oral argument), employment discrimination
  • Affirming summary judgment dismissal of claims that police department was retaliating and discriminating in demotion and discipline actions against police officer.

• U.S. v. Raudales-Cantor, 25-50365, appeal from W.D. Tex.
  • per curiam (Richman, Southwick, Ramirez) (no oral argument), criminal, sentencing
  • Affirming conviction and 16-month sentence for illegal reentry.

• U.S. v. Villafana-Cardenas, 25-50397, appeal from W.D. Tex.
  • per curiam (Richman, Southwick, Willett) (no oral argument), criminal, sentencing
  • Affirming conviction and 24-month sentence for illegal reentry.

• Raiz Federal Credit Union v. Rize Federal Credit Union, 25-50406, appeal from W.D. Tex.
  • per curiam (Jones, Duncan, Douglas) (no oral argument), trademark infringement, personal jurisdiction
  • Vacating dismissal of trademark infringement case for lack of personal jurisdiction, and remanding for further proceedings.

• U.S. v. Drost, 25-50421, appeal from W.D. Tex.
  • per curiam (Wiener, Willett, Wilson) (no oral argument), criminal, sentencing
  • Affirming 48-month sentence on conviction of conspiracy to transport illegal aliens.

• Chavez v. Bondi, 25-60230, petition for review of BIA order
  • per curiam (Jones, Barksdale, Stewart) (no oral argument); Jones, J., dissenting w/o opinion; immigration
  • Granting Honduran citizen’s petition for review of BIA order denying motion for termination or, in the alternative, administration closure, vacating order and remanding.

• Jones v. Greenville Police Department, 25-60372, appeal from N.D. Miss.
  • per curiam (Smith, Higginson, Wilson) (no oral argument), prisoner suit
  • Affirming dismissal as frivolous the plaintiff’s complaint that “included allegations that he had been raped and killed and that only medicine from specific plants could revive and cure him.”

• Obando-Loaisiga v. Bondi, 25-60373, petition for review of BIA order
  • per curiam (Davis, Jones, Ho) (no oral argument); immigration
  • Denying Nicaraguan citizen’s petition for review of BIA order dismissing his appeal from an order of an Immigration Judge (IJ) denying his application for asylum, withholding of removal, and protection under the Convention Against Torture.

• U.S. v. Ivy, 24-60619, appeal from N.D. Miss.
  • per curiam (Smith, Higginson, Wilson) (no oral argument), criminal
  • Affirming conviction of conspiracy to commit wire fraud and of aiding and abetting the commission of wire fraud.

• Young v. U.S. District Court for the Northern District of Mississippi, 25-60651, appeal from N.D. Miss.
  • per curiam (Jones, Smith, Higginson) (no oral argument), § 1983
  • Dismissing as frivolous appeal from dismissal of suit against court.

• Delacruz v. Guerrero, 25-70011, appeal from N.D. Tex.
  • per curiam (Southwick, Willett, Oldham) (no oral argument), habeas corpus
  • Reversing order that death-row inmate be unshackled and unpartitioned from a mental-health evaluator during an evaluation, and remanding for further proceedings.