Take the Fifth

Designated for publication

• Nathan v. Alamo Heights Independent School District, 25-50695, appeal from W.D. Tex.
  • Duncan, J. (joined by Elrod, Jones, Smith, Willett, Ho, Engelhardt, Oldham, Wilson; except Willett, Ho, Oldham do not join as to standing/justiciability); Ho, J., concurring; Oldham, J., concurring (joined by Willett); Ramirez, J., dissenting (joined by Stewart, Richman, Haynes, Graves, Higginson, Douglas); Southwick, J., dissenting (joined by Richman, Graves, Higginson, Douglas, Ramirez); Haynes, J., dissenting; Higginson, J., dissenting (joined by Richman, Graves, Douglas, Ramirez) (en banc oral argument in the first instance); First Amendment, Establishment Clause, Free Exercise Clause, standing, en banc
  • Reversing district court’s judgment that Texas’s 10-Commandments-in-classrooms law was unconstitutional, vacating preliminary injunction, and rendering judgment in favor of state defendants.
  • Texas Senate Bill 10 requires every public elementary and secondary school classroom to display a “durable poster or framed copy of the Ten Commandments” measuring at least 16 by 20 inches in a conspicuous place. Parents of various religious backgrounds sued several Texas school districts, alleging S.B. 10 facially violated the Establishment and Free Exercise Clauses. The district court denied defendants’ motion to dismiss, granted a preliminary injunction, and relied on the since-vacated Fifth Circuit panel decision in Roake v. Brumley and on Stone v. Graham to hold that the law lacked a secular purpose.
  • As to the Establishment Clause claim, the majority held that Stone v. Graham is “an empty vessel” because it rested entirely on Lemon‘s secular-purpose prong, which the Supreme Court “abandoned” in Kennedy. The court wrote: “Under the guise of applying Stone, [Plaintiffs] would have us exhume Lemon and parade its corpse around the Federal Reporter. That we cannot do.” Courts must now ask whether a challenged law bears the “hallmarks” of a founding-era religious establishment—government control of doctrine, compelled attendance, religious taxes, persecution of dissenters, and the like. The court concluded S.B. 10 “looks nothing like a historical religious establishment”: it “does not tell churches or synagogues or mosques what to believe,” “punishes no one who rejects the Ten Commandments,” and “levies no taxes to support any clergy.” The court also rejected arguments that S.B. 10 engages in unconstitutional “denominational discrimination” by adopting a particular version of the Commandments, reasoning that federal courts “are not competent to decide questions of ‘ecclesiastical law and religious faith'” and cannot “act as ‘arbiters of scriptural interpretation.'”
  • On the Free Exercise claim, the majority distinguished the Supreme Court’s 2025 decision in Mahmoud v. Taylor, in which a school district designed a compulsory curriculum to “disrupt” students’ thinking on LGBTQ+ issues, with teachers instructed to tell students their parents’ views, if contrary, were wrong and hurtful, with no opt-outs permitted. S.B. 10, by contrast, “authorizes no religious instruction and gives teachers no license to contradict children’s religious beliefs.” The court held that “merely exposing children to religious language” does not constitute coercive indoctrination, observing that “the curriculum in Mahmoud went far beyond books sitting silently on classroom shelves.” The court also noted that plaintiffs’ requested remedy—removing the displays altogether—went beyond Mahmoud and Barnette, which permitted opt-outs but did not authorize courts to “micromanage the public school curriculum.”
  • As to historical view of the Establishment and Free Exercise clauses, the court criticized the district court’s use of expert testimony on legal-historical questions, writing: “What the founding generation understood as an establishment of religion is a legal question to be decided by a court, not a ‘fact’ question to be decided by experts, no matter how credentialed.”
  • As to justiciability and standing, on which the companion Louisiana en banc decision in Roake turned, the majority found plaintiffs had standing and their challenge was ripe because, unlike Louisiana’s more open-ended law, S.B. 10 “establishes a uniform display requirement we can evaluate as a matter of law.”
  • Judge Ho concurred in all parts except the part regarding standing and justiciability, writing that “we can vacate the preliminary injunction on the merits—and uphold Ten Commandments displays in public schools under the Constitution—without addressing Plaintiffs’ theory of standing or requiring any factual context to affirm the displays. No challenge to either Texas or Louisiana law could possibly succeed[.]” Judge Ho wrote that the Founders “didn’t just permit religion in education—they presumed that there would be religion in education” and “firmly believed that our Constitution wouldn’t work without a religious people.” He quoted at length George Washington’s Farewell Address—”Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports”—and concluded: “I’m pleased that the court today upholds Texas law and delighted to concur in all but Part III.”
  • Judge Oldham, joined by Judge Willett, also concurred in all but the analysis on justiciability and standing, agreeing on the merits but writing separately to express “reservations about justiciability,” arguing that the plaintiffs lacked standing because “offended-observer standing” has “no basis in law” and “contravenes our constitutional structure, Supreme Court precedent, and common sense.” He characterized plaintiffs’ theory as a “textbook offended-observer case” in which individuals “invoke federal jurisdiction for protection from potential, hypothetical future offenses.” He also noted that plaintiffs brought the “hardest challenge to make out”—a facial, pre-enforcement challenge—likening it to “converting a 7–10 split” in bowling.
  • Judge Ramirez authored the principal dissent, contending that Stone v. Graham directly controls and remains binding because only the Supreme Court can overrule its own precedent. Judge Ramirez emphasized the Supreme Court’s “heightened concerns with protecting freedom of conscience from subtle coercive pressure” in public schools, asserting that S.B. 10—with “no ‘educational function'”—”will be to induce the schoolchildren to read, meditate upon, perhaps to venerate and obey, the Commandments.” On free exercise, Judge Ramirez contended that S.B. 10 “substantially burden[s] Plaintiffs’ religious exercise” because the displays “impose upon children a set of values and beliefs that are hostile to their parents'” and defendants failed strict scrutiny.
  • Judge Southwick also dissented (joined by Judges Richman, Graves, Higginson, Douglas, and Ramirez, in varying parts), agreeing that Lemon was abrogated but contending that the individual pre-Lemon principles that Lemon had “fused”—especially the secular-purpose requirement from the school-prayer cases—survived: “the test was disassembled, and one part discarded—but other parts of what had been fused remain usable.” He opened with a Stephen Crane poem, writing that “government promotion of religion in every classroom is simulated lightning and thunder, compulsorily seen and heard.” He concluded that, under Stone and the school-prayer precedents, S.B. 10’s “pre-eminent purpose” is “plainly religious in nature” and that “if a prayer heard but ignored can be coercive, then the posting of explicitly religious text in a place where it can be seen in every classroom is more coercive.”
  • Judge Haynes wrote a brief dissent agreeing with Judge Ramirez that Stone v. Graham “clearly makes S.B. 10 an unconstitutional statute” and that “we must follow the Supreme Court.”
  • Judge Higginson authored a dissent (joined by Judges Richman, Graves, Douglas, and Ramirez) contending that “Texas, like Louisiana, seeks to … legislat[e] that specific, politically chosen scripture be installed in every public-school classroom” in violation of the Framers’ intent against religious establishment. He warned that the majority “supplant[s] decades of Supreme Court precedent merely because of a single decision the majority deems outdated” and emphasized three constitutional priorities: “non-discrimination among religions, the Supreme Court’s constitutional solicitude for students, and, above all, the right of parents to control the faith guidance of their children.” He challenged the majority’s reasoning that government religious “language or symbolism” is constitutionally benign, writing: “on the majority’s theory, state legislatures may make their own theological decisions—commanding reverence to biblical scripture they select—without any guardrails.”

• Davis v. Warren, 24-40599, appeal from E.D. Tex.
  • Willett, J. (Elrod, Willett, Wilson) (oral argument), § 1983, timeliness
  • Affirming in part and vacating in part plaintiff’s § 1983 claims arising from his arrest during a traffic stop on drug and evidence-tampering charges, and remanding for further proceedings.
  • Daryl Davis sued Smith County and City of Tyler officials under 42 U.S.C. § 1983 for $75 million after a February 2019 traffic stop in which Tyler Police officers accused him of swallowing crack cocaine, allegedly used excessive force, and arrested him for tampering with evidence and interfering with public duties. Davis was later indicted, and in May 2024 he pleaded nolo contendere to interfering with public duties while the evidence-tampering charge was dropped. He also alleged that city and county officials “turned a blind eye” to his complaints about a broader pattern of unconstitutional policing. The district court dismissed the complaint for failure to state a claim under § 1915(e)(2)(B)(ii).
  • At issue on appeal was whether Davis’s unlawful-arrest and excessive-force claims were time-barred under Texas’s two-year statute of limitations for § 1983 actions; whether he stated a malicious-prosecution claim when his criminal case ended in a nolo contendere plea; whether he preserved freestanding evidence-fabrication and post-indictment search-and-seizure claims; and whether his failure-to-act claims against officials who ignored his complaints were properly dismissed with prejudice.
  • On the statute of limitations and the dismissal of plaintiff’s malicious prosecution claims, the court held that Davis’s unlawful-arrest and excessive-force claims accrued at the moment of arrest in February 2019 and were therefore barred by the two-year limitations period, as his appellate counsel conceded. His malicious-prosecution claim failed on two independent grounds: (1) a nolo contendere plea is not a “favorable termination”—”Pete fails to state a claim for malicious prosecution because his prosecution ended with a plea of nolo contendere”—and (2) Davis’s own stipulation to the indictment confirmed probable cause for the charge, since he “confess[ed] that each and every allegation contained in the indictment” was “true and correct.”
  • The court declined to entertain Davis’s freestanding evidence-fabrication and post-indictment search-and-seizure theories for the first time on appeal, finding he never distinctly pleaded them below. As to the failure-to-act claims against officials who allegedly ignored his complaints, the court agreed the allegations were conclusory but held those claims should have been dismissed without prejudice, not with prejudice, because on this record the court was “not persuaded that Davis has pleaded his best case.” The court noted that “[w]ith the benefit of more specific allegations, [Davis] may be able to state a claim” and suggested that appointing counsel on remand “may be appropriate.”

Unpublished decisions

• United States v. Sonia Suzanne Mata, 25-50474, appeal from W.D. Tex.
  • per curiam (Smith, Higginson, Wilson) (no oral argument), criminal, guilty plea
  • Dismissing appeal of sentence, under plea agreement’s appeal-waiver.

• United States v. Sandra Iribhogbe Popnen, 25-40372, appeal from E.D. Tex.
  • per curiam (Elrod, Smith, Stewart) (no oral argument), criminal, sentencing
  • Affirming 325-month within-Guidelines sentence for conspiracy to commit wire fraud and conspiracy to commit money laundering.
  • On appeal, the defendant raised three challenges: (1) that the district court erroneously attributed to her loss amounts from fraudulent unemployment-insurance claims submitted by co-conspirators to the State of California; (2) that loss amounts for victims of “online romance” schemes lacked evidentiary support in the presentence report; and (3) that the district court improperly refused a reduction for acceptance of responsibility under U.S.S.G. § 3E1.1. She also argued that her total sentence was substantively unreasonable due to unwarranted sentencing disparities with her co-defendants.
  • The court found no clear error in the loss-amount calculations, noting that relevant conduct includes “all reasonably foreseeable acts and omissions of others in furtherance of jointly undertaken criminal activity.” It held the PSR had sufficient indicia of reliability regarding the romance-scheme losses and that Popnen failed to rebut that evidence below. The denial of the acceptance-of-responsibility reduction was not an abuse of discretion.

• United States v. Rando Saavedra-Ramirez, 25-20012, appeal from S.D. Tex.
  • per curiam (Smith, Higginson, Wilson) (no oral argument), criminal, sentence reduction
  • Affirming denial of motion for sentence reduction.
  • Saavedra-Ramirez, a federal prisoner, appealed the denial of a sentence reduction under 18 U.S.C. § 3582(c)(2) from his 210-month sentence for possession with intent to distribute methamphetamine. He argued he was eligible for relief based on changes to status points under Part A of Amendment 821 of the Sentencing Guidelines, that the district court failed to give adequate reasons, that the § 3553(a) factors favored relief, and that the court misapplied the law.
  • The court held Saavedra-Ramirez was not entitled to relief under Part A of Amendment 821 because no status points were assessed at his original sentencing. His argument under Part B of Amendment 821 (zero-point offender) was abandoned because he raised it below but did not pursue it on appeal.

• United States v. Gerardo Perez-Checa, 25-11003, appeal from N.D. Tex.
  • per curiam (Smith, Higginson, Wilson) (no oral argument), criminal, sentencing
  • Affirming 21-month, within-Guidelines sentence imposed after a guilty-plea conviction for illegal reentry.

• Gleibys Segura v. Todd Wallace Blanche, 25-60470, petition for review of BIA order
  • per curiam (Smith, Higginson, Wilson) (no oral argument), immigration
  • Dismissing in part and denying in part Guatemalan citizen’s petition for review of BIA order reversing an immigration judge’s grant of a waiver of inadmissibility and adjustment of status. The BIA found Segura’s criminal history outweighed her positive equities and denied relief as a matter of discretion. Segura argued the BIA erred by not properly weighing favorable considerations; in reply, she raised for the first time that the BIA applied an incorrect standard of review and that the decision was arbitrary and capricious under the APA.
  • The court held that the jurisdiction-stripping provision of 8 U.S.C. § 1252(a)(2)(B) barred review of the BIA’s discretionary denial, as Segura’s challenge was to a discretionary decision, not a legal or constitutional argument. Even considering the late-raised arguments, the court found them meritless: the BIA applied the correct standard from Matter of Arai, and the APA does not apply to BIA individual proceedings under the INA per Ardestani v. INS.

• United States v. Joseph Gray, Jr., 25-40528, appeal from S.D. Tex.
  • per curiam (Smith, Higginson, Wilson) (no oral argument), criminal, compassionate release
  • Affirming denial of motion for compassionate release.
  • Gray argued that a change in the law regarding the importance of methamphetamine purity levels in determining culpability warranted a sentence reduction, and he renewed a challenge to a leadership-role sentencing enhancement, contending he would not receive it today.
  • Reviewing for abuse of discretion, the court held that Gray failed to establish a nonretroactive change in law that would affect his sentence, because the cases he cited were all decided before his 2023 sentencing. He also did not meet the criteria of U.S.S.G. § 1B1.13(b)(6) because he had not yet served at least 10 years of his 360-month term. The court noted that his challenge ultimately pertained to his original sentence, which is not appropriate in a § 3582(c) proceeding.

• United States v. Manfredi Diaz-Cuellar, 25-11159, appeal from N.D. Tex.
  • per curiam (Elrod, Higginson, Ramirez) (no oral argument), criminal, sentencing
  • Affirming sentence on conviction of illegal reentry.