Take the Fifth

Designated for publication

• State of Louisiana v. Food & Drug Administration, 26-30203, appeal from W.D. La.
  • Duncan, J. (Southwick, Duncan, Engelhardt) (no oral argument), abortion law, standing, administrative law
  • Granting Louisiana’s motion to stay the FDA’s 2023 REMS (order allowing mifepristone to be prescribed online and dispensed through the mail without any in-person doctor visit) pending appeal under 5 U.S.C. § 705.
  • After Dobbs v. Jackson Women’s Health Organization (2022) returned abortion regulation to the states, the Biden Administration directed federal agencies to “expand access to . . . medication abortion.” In 2023, the FDA formally altered its safety guidelines with the 2023 REMS. Louisiana challenged the 2023 REMS under the Administrative Procedure Act, arguing the FDA’s justifications were based on flawed or nonexistent data and that the regulation facilitated nearly 1,000 illegal abortions per month in Louisiana, costing the state thousands in Medicaid expenses for women harmed by the drug. The FDA conceded it had failed to adequately study whether remotely prescribing mifepristone is safe, and acknowledged “procedural deficits” and a “lack of adequate consideration underlying the prior REMS approvals.” The district court found Louisiana likely to succeed and suffering irreparable harm, but declined to stay the regulation on equities and public-interest grounds, instead staying the entire case to allow the FDA to complete its review.
  • At issue on appeal was: (1) whether Louisiana had standing (sovereign injury and financial injury) to challenge the 2023 REMS; (2) whether the FDA’s removal of the in-person dispensing requirement was arbitrary and capricious under the APA; and (3) whether a stay of the 2023 REMS was warranted under 5 U.S.C. § 705, applying the four-factor test (likelihood of success, irreparable harm, balance of equities, public interest)
  • Regarding standing and threshold issues, the court rejected the FDA’s argument that Louisiana should have first sought a stay from the district court, finding it would have been “pointless” given the district court had already denied the § 705 motion and stayed the case. It also rejected Danco’s administrative-exhaustion argument, citing prior Fifth Circuit reasoning in Alliance I and II. On standing, the court found Louisiana demonstrated both sovereign injury—the 2023 REMS “sanctions and facilitates conduct with the express purpose of undermining Louisiana’s legal restrictions on abortion”—and financial injury through $92,000 in documented Medicaid costs and foreseeable ongoing costs.
  • Regarding likelihood of success and irreparable harm, the court concluded Louisiana made a strong showing that the 2023 REMS was arbitrary and capricious, noting the FDA gave “dispositive weight” to the absence of adverse-event data in a reporting system after it had eliminated the requirement to report such data—reasoning it is “unreasonable for an agency to eliminate a reporting requirement for a thing and then use the resulting absence of data to support its decision.” The FDA also relied on literature it admitted “did not affirmatively support its position.” Irreparable harm was found because “[e]very abortion facilitated by FDA’s action cancels Louisiana’s ban on medical abortions” and financial harms are irremediable due to sovereign immunity.
  • Regarding the balance of equities and public interest, the court held that “[n]either the FDA nor the public has any interest in enforcing a regulation that violates federal law.” It noted the public interest “is not served by perpetuating a medical practice whose safety the agency admits was inadequately studied.” Addressing the district court’s concern about nationwide effects and parallel litigation, the panel stated: “If disagreement emerges, we have a Supreme Court.” It further reasoned that allowing the agency to forestall judicial review merely by promising a future review “makes no sense”—particularly when “FDA cannot even say when its review will conclude.”
  • UPDATE (May 4): On May 4, in two orders issued by Justice Alito (Danco order) (Genbiopro order), the Supreme Court administratively stayed the Fifth Circuit’s opinion for a week, and ordered a response to the stay applications by two pharmaceutical company defendants.

Unpublished decisions

• United States v. Luis Manuel Banuelos, 23-50731, appeal from W.D. Tex.
  • per curiam (Elrod, Ho, Ramirez) (no oral argument), criminal, Second Amendment
  • Reversing denial of motion to dismiss indictment of possession of a firearm by a felon, and vacating conviction and sentence.
  • Banuelos was charged with being a felon in possession of a firearm under 18 U.S.C. § 922(g)(1), based on a 2005 Texas felony conviction for possession of between 50 and 2,000 pounds of marijuana. He moved to dismiss the indictment, arguing that § 922(g)(1) violates the Second Amendment as applied to a conviction for simple drug possession. The district court denied the motion and convicted him after a stipulated bench trial. On appeal, the court considered whether intervening circuit precedent in United States v. Hembree, 165 F.4th 909 (5th Cir. 2026), which held that “the government did not meet its burden to prove that history and tradition support simple possession as a valid felony predicate under § 922(g)(1),” required reversal. The government argued (1) that the facts underlying Banuelos’s conviction showed drug trafficking rather than simple possession, and (2) that colonial-era tobacco statutes provided a new historical analogue supporting disarmament for possession offenses.
  • The Fifth Circuit reversed the denial of the motion to dismiss and vacated Banuelos’s conviction and sentence. The court held that Hembree was binding and foreclosed both government arguments: the panel could not look beyond the predicate conviction to the underlying conduct, and the colonial tobacco laws the government cited criminalized acts like “embezzling,” “delivering,” “altering,” “forging,” and “smuggling”—not possession.

• United States v. John W. Mouton, 24-40541, appeal from E.D. Tex.
  • per curiam (Smith, Higginson, Wilson) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• United States v. Kenric W. Young, 25-30187, appeal from W.D. La.
  • per curiam (Elrod, Ho, Ramirez) (no oral argument), criminal, search and seizure, sentencing
  • Affirming conviction and sentence on federal drug and firearm offenses.
  • Young conditionally pleaded guilty and challenged the district court on two grounds, both unpreserved and reviewed for plain error. First, he argued that officers lacked reasonable suspicion to conduct a pat-down search during a nighttime traffic stop; the court assessed the totality of the circumstances, including the high-crime area, Young’s failure to stop immediately, his unprompted exit from the vehicle, the presence of a passenger, and a large bulge in his sweatshirt pocket. Second, Young contended that one of his two Louisiana cocaine distribution convictions could not serve as a career-offender predicate under U.S.S.G. § 4B1.1(a) because Louisiana’s definition of cocaine was broader than the federal Controlled Substances Act’s definition, encompassing the radioactive diagnostic agent Ioflupane.
  • On the suppression issue, the court found no plain error, concluding the officers’ “commonsense judgments and inferences about human behavior” supported reasonable suspicion for the pat-down. On the career-offender issue, the court held that Young failed to demonstrate a “realistic probability” that Louisiana would prosecute someone for distributing Ioflupane, as required by United States v. Castillo-Rivera, and thus any error was not clear or obvious. The court noted in a footnote that district courts have disagreed about whether Castillo-Rivera survived the Supreme Court’s decision in United States v. Taylor, 596 U.S. 845 (2022), but Young did not raise that argument, and the disagreement itself showed any error would not be plain.

• Carson v. Guerrero, 26-10117, appeal from N.D. Tex.
  • per curiam (Smith, Haynes, Oldham) (no oral argument), habeas corpus
  • Vacating denial of Rule 60(b) motion and remanding with instructions to dismiss for lack of jurisdiction as an unauthorized successive habeas petition.
  • Texas prisoner Michael James Carson sought a certificate of appealability (COA) to challenge the district court’s denial of his Federal Rule of Civil Procedure 60(b) motion. That motion sought relief from a 2024 judgment denying his 28 U.S.C. § 2254 habeas application and raised claims of prosecutorial misconduct (evidence suppression, falsification, perjured testimony) and ineffective assistance of counsel.
  • The Fifth Circuit determined that because Carson’s claims were either previously raised in his § 2254 proceeding or constituted new habeas claims—rather than attacking a defect in the integrity of the prior § 2254 proceedings—the Rule 60(b) motion was in substance an unauthorized successive habeas application under Gonzalez v. Crosby, 545 U.S. 524 (2005).