Take the Fifth

Designated for publication

• Cuevas Machine Company v. Calgon Carbon Corporation, 25-60198, appeal from S.D. Miss.
  • Wilson, J. (Elrod, Smith, Wilson) (oral argument), liens, breach of contract, construction law, certification
  • Certifying question to Mississippi Supreme Court regarding statutory requirement for lien enforceability.
  • Cuevas Machine Company subcontracted with O’Neal Constructors to perform fabrication and machining services at a filtration plant owned by Calgon Carbon Corporation in Hancock County, Mississippi. After O’Neal stopped paying Cuevas in June 2023, Cuevas continued working and in October 2023 recorded two construction liens against the Calgon property totaling roughly $1.23 million. The liens themselves did not explicitly state the “last date” on which labor, services, or materials were supplied—a statutory prerequisite under Miss. Code Ann. § 85-7-405(1)(b)—but Cuevas attached dated invoices describing the work performed and amounts owed. The district court granted Calgon’s Rule 12(b)(6) motion and dismissed with prejudice, making an Erie guess that the liens were unenforceable because neither the lien documents nor the attached invoices adequately specified the required “last date.”
  • At issue on appeal was whether a lienor may satisfy the statutory requirement to “specify the date the claim was due, [i.e.,] the last date the labor, services or materials were supplied to the premises” under § 85-7-405(1)(b) by attaching invoices that do not plainly state such a date.
  • The Fifth Circuit certified the question to the Mississippi Supreme Court rather than making its own Erie guess, finding no clear controlling state precedent.
  • The court observed that the statute’s “in substance” language could indicate that content—rather than form—determines validity, meaning information supplied through attachments could bring a lien into substantial compliance. However, state caselaw was silent on whether an invoice containing an imprecise or ambiguous date adequately “specifies” the required last date, particularly because the current statutory requirements were added in a 2014 legislative overhaul with little subsequent precedent interpreting them.
  • The court acknowledged competing lines of Mississippi authority: older cases favor liberal construction of lien statutes “to effectuate [their] purposes” (Chancellor v. Melvin, 52 So. 2d 360, 364 (Miss. 1951)), while another line holds that “[s]tatutory prerequisites … must be strictly complied with for the lienor to gain the benefits offered by statute” (Jones Supply Co. v. Ishee, 163 So. 2d 470, 472 (Miss. 1964)). The court noted that “neither the plain text of the lien statute nor a thorough examination of Mississippi precedent” resolved the question.
  • Applying the Fifth Circuit’s three-factor certification test, the court found all factors favored certification: the question is narrow yet important and not readily answered by existing precedent; the answer will control this case and has “significant economic impact (including the seven-figure lien involved here)”; and the Mississippi Supreme Court’s “construction of its own law will allow us to conclude this case in a manner that is not at risk of inconsistency with any later determination by that court.” The court described an Erie guess under these circumstances as “a leap into the dark.”

Unpublished decisions

• Maldonado-Serrano v. Blanche, 25-60364, petition for review of BIA order
  • per curiam (Jones, Richman, Douglas) (no oral argument), immigration
  • Dismissing in part and denying in part Honduran citizen’s petition for review of BIA denial of his motion to reopen and rescind his in absentia removal order.
  • Selvin Eduardo Maldonado-Serrano, a native and citizen of Honduras, was ordered removed in absentia after failing to appear at a July 29, 2002 hearing. Although his notice to appear lacked a hearing date and time, a subsequent notice of hearing (NOH) was mailed to his address of record. The principal legal issues were (1) whether the BIA abused its discretion in relying on Campos-Chaves v. Garland, 602 U.S. 447 (2024), to find that proper notice had been provided; (2) whether Maldonado-Serrano rebutted the presumption of delivery of the NOH; and (3) whether the court had jurisdiction over his challenge to the BIA’s denial of sua sponte regulatory reopening.
  • The Fifth Circuit held that the BIA did not abuse its discretion because, under Campos-Chaves, an alien is ineligible for rescission of an in absentia removal order if notice of the hearing was provided in accordance with § 1229(a)(2), even if the original notice to appear omitted the hearing date and time. The court further held that Maldonado-Serrano failed to rebut the presumption of delivery of the NOH and that the court lacked jurisdiction over his challenge to the denial of sua sponte reopening under 8 C.F.R. § 1003.2(a).

• United States v. Wilson, 25-10889, appeal from N.D. Tex.
  • per curiam (Jones, Richman, Douglas) (no oral argument), criminal, sufficiency of evidence, Second Amendment
  • Affirming conviction of possession of an unregistered machinegun.
  • On appeal, the defendant raised two issues: (1) sufficiency of the evidence, arguing the Government failed to prove he knew the devices he possessed had the characteristics of machineguns under Staples v. United States, 511 U.S. 600 (1994); and (2) unconstitutional vagueness of the statutory definition of “machinegun.”
  • On sufficiency, the court found Wilson’s arguments merely suggested the district court should have weighed the evidence differently but did not establish that no rational trier of fact could have found the evidence sufficient. On vagueness, the court applied an as-applied analysis and concluded Wilson failed to show he “could not have known” his devices had characteristics of machineguns; indeed, the Government proved he did possess such knowledge. Because his conduct was clearly proscribed, he could not complain of the vagueness of the law as applied to others.

• Hargiss v. Princeton Excess & Surplus Lines Insurance Co., 24-30810, appeal from W.D. La.
  • per curiam (Jones, Stewart, Ramirez) (oral argument), insurance, certification
  • Certifying to Louisiana Supreme Court question regarding whether insured’s failure to cooperate with insurer cuts off liability to third party’s direct-action claim under Louisiana’s Direct Action statute.
  • Brian Patrick Hargiss sued Richland Parish Sheriff’s deputies for excessive force and obtained a jury verdict. He then brought a direct action under Louisiana’s Direct Action Statute, La. R.S. § 22:1269, against Princeton, the Sheriff’s excess insurer. Princeton argued that LSLEP (the insured risk-management agency) breached the policy’s cooperation clause by failing to share material information about the claim and by engaging in settlement negotiations without Princeton’s knowledge. The district court found a genuine factual dispute on the cooperation-clause breach but held Hargiss could recover regardless, because a breach of the cooperation clause does not preclude a third-party direct action.
  • The central legal question on appeal was whether an insured’s breach of a cooperation clause in a claims-made-and-reported policy precludes an injured third party from bringing a direct action against the insurer under Louisiana law. The court examined the Louisiana Supreme Court’s decisions in Futch v. Fidelity & Casualty Co. and King v. King (holding cooperation-clause breaches do not defeat direct actions absent fraud or collusion), the Fifth Circuit’s own decision in Cagle (following that rule), and the later Louisiana Supreme Court decision in Gorman v. City of Opelousas (holding an insured’s failure to make and report a claim within the policy period precludes a direct action). The court also considered the Louisiana appellate decision in United Home Care v. Simpson, which barred a direct action based on violations of both reporting and cooperation provisions.
  • Unable to make a reliable Erie guess, the Fifth Circuit certified the following question to the Louisiana Supreme Court: “Under a claims-made-and-reported policy, when the insured reports an insured event but breaches their duty to cooperate, does the insured’s lack of cooperation preclude the injured third party from bringing a direct action against the insurer?” The court found all three certification factors were satisfied: the question is close, comity interests favor Louisiana’s highest court resolving this important insurance-law issue, and no practical impediments to certification exist.

• Galindo-Borjas v. Blanche, 25-60390, 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 denying motion to reopen removal proceedings after dismissing appeal of IJ’s denial of motion for cancelation of removal.
  • Franklin David Galindo-Borjas, a native and citizen of Honduras, entered the United States without admission or parole and was charged as removable under 8 U.S.C. § 1182(a)(6)(A)(i). After an Immigration Judge denied his motion for cancellation of removal, the BIA dismissed his appeal as untimely and denied his motion to reconsider. Galindo-Borjas then filed a motion to reopen, which the BIA denied as untimely. On appeal, he argued (1) the BIA erred in declining to equitably toll the filing deadline because he exercised due diligence, and (2) his claims should be reviewed de novo rather than for abuse of discretion because the underlying challenge involves a due process violation.
  • The Fifth Circuit held that because nearly eight months elapsed between the denial of his motion to reconsider and the filing of his motion to reopen, Galindo-Borjas failed to demonstrate the BIA abused its discretion in declining to apply equitable tolling. The court also rejected his de novo review argument, citing Garcia Morin v. Bondi, 152 F.4th 626, 635 (5th Cir. 2025), for the proposition that due process considerations do not apply to motions to reopen proceedings.