Take the Fifth

Designated for publication

• Megatel Homes, L.L.C. v. City of Mansfield, 25-11006, appeal from N.D. Tex.
  • Higginson, J. (Haynes, Higginson, Ho) (no oral argument), antitrust
  • Reversing grant of state-action immunity on plaintiff’s Sherman Act claims against city.
  • Megatel Homes sought to develop roughly 517 acres (the “Cipriani Property”) located outside the City of Mansfield’s corporate boundaries but within its extraterritorial jurisdiction. To obtain water, Megatel needed service from the Johnson County Special Utility District (JCSUD), which holds the certificate of convenience and necessity (CCN) for the area. However, a 2022 agreement between JCSUD and Mansfield barred JCSUD from providing water in Mansfield’s extraterritorial jurisdiction without the City’s “prior written consent,” which could be “withheld in Mansfield’s sole discretion.” During two and a half years of negotiations, Mansfield demanded annexation of the property and payment of various development fees, telling Megatel: “[I]f you control the tap you kinda control the world.” Megatel sued under Sections 1 and 2 of the Sherman Act and asserted state-law claims. The district court dismissed the antitrust claims on state-action immunity grounds and declined supplemental jurisdiction over the state-law claims.
  • The central issue on appeal was whether the Texas Water Code “clearly articulate[s] and affirmatively express[es]” a state policy authorizing Mansfield—as opposed to JCSUD, the CCN holder—to act anticompetitively so as to confer state-action immunity on the City. The court emphasized that under the clear-articulation test, “the substate governmental entity must also show that it has been delegated authority to act or regulate anticompetitively.” The Texas Water Code grants exclusive monopoly rights only to the utility that receives a CCN from the Texas Public Utility Commission—here, JCSUD, not Mansfield. As the court put it, the statute specifies that “retail utilities are by definition monopolies in the areas they serve,” and Texas granted the CCN for the Cipriani Property to JCSUD; it “does not grant Mansfield the same power.” The court passed no judgment on the merits of the Sherman Act or state-law claims.

• Hagar v. Federal Bureau of Investigation, 25-40188, appeal from E.D. Tex.
  • Higginson, J. (Haynes, Higginson, Ho) (no oral argument), Freedom of Information Act
  • Affirming summary judgment dismissal of FOIA claims.
  • Michael Hagar, a federal prisoner convicted of cyberstalking, filed a pro se FOIA action against the FBI seeking production of an email pertinent to his criminal case, including unredacted “To” line information and complete email “header information” (metadata such as server paths, timestamps, and sender/recipient data). The FBI initially produced the email with the “To” line redacted under FOIA Exemptions 6 and 7(C) and declined to produce header information, asserting it would require the creation of a new record. While summary judgment was pending, the FBI sent Hagar an unredacted copy of the email. The district court granted summary judgment to the FBI on all claims, denied Hagar’s post-judgment motions, and Hagar timely appealed.
  • The two core issues on appeal were (1) whether the “To” line claim survived after the FBI produced the unredacted email and (2) whether copying email header metadata into a new document constituted the “creation of a new record” beyond FOIA’s requirements.
  • First, the court held the “To” line claim was moot because the FBI had already provided Hagar the unredacted email. Second, applying Rutila v. U.S. Department of Transportation, 72 F.4th 692 (5th Cir. 2023)—where taking screenshots of data not separately stored was deemed creation of a new record—the court found “no meaningful difference” between screenshots and the FBI’s need to copy-and-paste header metadata into a new text file or Word document. The court noted that although the FBI has access to the header information, it “does not maintain a record” of it, and producing it would “require the agency to create something new, which it would not have otherwise had before.” As the court concluded, quoting Rutila, FOIA “‘does not obligate agencies to satisfy such requests.'” Hagar’s judicial misconduct allegations were rejected as mere disagreement with adverse rulings, the court observing that “‘judicial rulings alone almost never constitute a valid basis for a bias or partiality motion.'”

Unpublished decisions

• Green v. HCTec Partners, L.L.C., 24-20554, appeal from S.D. Tex.
  • per curiam (Wiener, Engelhardt, Oldham) (oral argument), Oldham, J., concurring; employment discrimination, Title VII
  • Affirming summary judgment dismissal of disparate treatment, hostile work environment, and retaliation claims.
  • Karen Green, an African American woman, was promoted to Tier 2 Applications Manager at HCTec in January 2021 and worked under the supervision of Bernard Rush, an African American male. On February 3, 2021, Green reported to Human Resources and to Rush’s supervisor that Rush was treating her differently than her white male counterpart, Ryan Noland, based on her race and sex. On May 13, 2021—roughly two and a half months later—Rush abruptly fired Green, citing inappropriate and insubordinate communications she had sent that same day, without any prior warning or opportunity for remediation despite HCTec’s general progressive-discipline policy. Green sued under Title VII and 42 U.S.C. § 1981, asserting race and sex discrimination (disparate treatment), hostile work environment, and retaliation.
  • The issues on appeal were (1) whether the district court correctly granted summary judgment on Green’s disparate-treatment discrimination and retaliation claims under the McDonnell Douglas burden-shifting framework—specifically, whether Green raised a genuine issue of material fact that HCTec’s stated reasons for her termination were pretextual. (2) Whether the district court correctly dismissed Green’s hostile work environment claim, which was based on allegations that Rush ignored her and gave her a heavier workload than Noland.
  • On the disparate-treatment claims, the court found that Green “at best shows that reasonable minds can disagree with HCTec’s rationale, not that the rationale was pretextual or false.” Green failed to rebut several of HCTec’s legitimate, business-related reasons for firing her, including Rush’s unrebutted assertion that Green made inappropriate comments about a subordinate’s culture and ethnicity and her arguably insubordinate emails to a client during sensitive contract negotiations. The court emphasized that the inquiry is “whether [Rush’s] perception of [Green’s] performance, accurate or not, was the real reason for her termination.”
  • On the retaliation claim, the court acknowledged it was “a harder call” given the relatively close temporal proximity between the February 2021 protected activity and the May 2021 termination, but ultimately concluded Green did not satisfy her evidentiary burden. The court observed: “Employers are entitled to be unreasonable as long as they are not unreasonable in a manner that is racist or sexist, and the employee’s legally ‘protected activity’ is not the but-for cause of that unreasonableness.”
  • On the hostile work environment claim, the court agreed with the district court that the conduct Green alleged—being ignored and given a heavier workload—is generally not sufficiently severe or pervasive to create an actionable hostile work environment absent sufficient evidence of race- or sex-based animus, which Green did not provide. Green also failed to show that Rush was aware of any workload disparity or that the alleged conduct occurred after her February 2021 HR report.
  • Judge Oldham concurred, writing separately to raise two points. First, he questioned whether the McDonnell Douglas burden-shifting framework should apply at the summary judgment stage at all, noting the original case arose from a bench trial, not summary judgment, and that the “substantial evidence” standard courts apply under that framework “is certainly higher than the summary judgment rule that a plaintiff need only create a genuine dispute of material fact.” He cited a growing chorus of skeptics, including Justice Thomas’s recent dissent from denial of certiorari in Hittle v. City of Stockton, 145 S. Ct. 759 (2025), as well as opinions by then-Judge Gorsuch (calling the framework of “limited value”) and then-Judge Kavanaugh (calling it “a largely unnecessary sideshow”).
  • Second, Judge Oldham argued that Green’s “intersectional” discrimination theory—combining race and sex into a single claim—”should fail.” He contended that § 1981 “does not cognize intersectional claims, since it applies only to racial discrimination.” As to Title VII, he argued the statute prohibits discrimination based on “race, color, religion, sex, or national origin” and “does not grant a separate cause of action to people suing because (1) the employer did not discriminate on the basis of sex, (2) did not discriminate on the basis of race, but (3) somehow did discriminate on the basis of a mix of those traits.” He noted that intersectionality theorist Kimberlé Crenshaw herself “criticized the prevailing interpretation of Title VII for failing to accommodate so-called intersectional discrimination,” and stated: “It’s thus too late in the day to pretend that intersectionality’s founders were wrong to say the theory cannot be squared with Title VII.” He also flagged a practical problem: under an intersectional theory, employers would face a “Catch-22” of either being sued or violating Title VII by seeking a replacement who matches the fired employee’s “exact intersectional combo.”

• United States v. Till, 25-40339, appeal from E.D. Tex.
  • per curiam (Smith, Higginson, Wilson) (no oral argument), criminal, sentencing
  • Affirming sentence on conviction of attempted production of child pornography.
  • The court found no significant procedural error, noting the district court stated multiple times that it had considered the 18 U.S.C. § 3553(a) factors. On substantive reasonableness, the court concluded that the district court carefully weighed the sentencing factors but was also concerned about Till’s failure to appreciate the gravity of his offense and the need to protect the public; Till’s arguments amounted to a mere disagreement with the district court’s weighing of those factors and failed to rebut the presumption of reasonableness afforded within-guidelines sentences. The court also found the prosecutor’s comments were based on reasonable inferences from the record and made in response to testimony and defense arguments.

• Singh v. Bondi, 25-60306, petition for review of BIA order
  • per curiam (Barksdale, Graves, Duncan) (no oral argument), immigration
  • Denying Indian citizen’s petition for review of BIA order upholding an Immigration Judge’s denial of asylum and protection under the Convention Against Torture.
  • On the asylum claim, the court held that Singh failed to show the past harm he suffered from the Bharatiya Janata Party (BJP) rose to an extreme level of conduct or that the Indian government was unwilling or unable to protect him, and he did not demonstrate that the record compelled a conclusion contrary to the BIA’s finding that he lacked a well-founded fear of future persecution. On the CAT claim, the court found he abandoned the challenge by failing to address the BIA’s reasoning. On the due-process claim, the court declined to consider it because Singh failed to exhaust that argument before the BIA and the Government raised exhaustion.

• United States v. Pena, 23-50717, appeal from W.D. Tex.
  • per curiam (Jones, Barksdale, Stewart) (oral argument withdrawn), criminal, guilty plea
  • Affirming guilty-plea conviction.
  • The court held the appeal waiver in the defendant’s plea agreement was knowing and voluntary: Pena read, discussed, and agreed to the plea agreement, which contained an explicit, unambiguous waiver, and the district court’s erroneous advice at sentencing did not invalidate a waiver already executed months earlier. The ineffective-assistance-of-counsel argument was deemed waived because Pena first raised it in his response to the government’s motion to dismiss rather than in his opening brief, and was in any event unripe for direct-appeal review. The breach-of-plea-agreement argument failed under plain-error review because the plea agreement’s acceptance-of-responsibility provision referred to conduct “prior to sentencing,” not merely prior to the guilty plea, and the issue was at minimum subject to reasonable dispute. The court therefore declined to reach Pena’s Second Amendment challenge.

• Archer Western Contractors, L.L.C. v. McDonnel Group, L.L.C., 25-30321, c/w 25-30479, appeal from E.D. La.
  • per curiam (King, Southwick, Haynes) (oral argument), party joinder, breach of contract, attorneys’ fees
  • Affirming ruling denying Rule 19 failure-to-join argument, affirming summary judgment and attorneys’ fees award for plaintiff on breach-of-contract claim.
  • The case arose from a construction joint venture between Archer Western Contractors (“AWC,” 70% share) and The McDonnel Group (“TMG,” 30% share). TMG independently settled with the project owner for $2.7 million for TMG’s share of JV work but kept the funds rather than depositing them in the JV bank account as required by the JV Agreement. Three issues were raised on appeal: (1) whether the district court abused its discretion in declining to dismiss the case for failure to join the JV as a necessary and indispensable party under Rule 19; (2) whether summary judgment for AWC on its breach-of-contract claim was proper; and (3) whether the attorneys’ fee award should be vacated.
  • The Fifth Circuit held that the district court did not abuse its discretion on the Rule 19 issue. Under Moss v. Princip, a partnership (or joint venture) is not necessarily indispensable when all constituent members are already parties and relief can be tailored to reduce prejudice. The district court properly analyzed the Rule 19(b) factors and concluded they weighed in favor of proceeding without the JV.
  • The court affirmed summary judgment for AWC on the merits of the breach of contract claim. Article 8(a) of the JV Agreement required all funds received on behalf of the JV in connection with the contract to be deposited in the JV’s bank account; the $2.7 million settlement was compensation for JV work and therefore fell within this provision, and TMG’s retention of those funds constituted a breach. AWC, as a JV member, was necessarily damaged by TMG’s wrongful retention of the funds.
  • Because the court affirmed the underlying breach-of-contract judgment, and TMG challenged the fee award only on the theory that it should be vacated if the merits ruling were reversed, the court declined to vacate the fee award.