Take the Fifth

Designated for publication

• Hill v. Jackson Offshore Holdings, L.L.C., 24-30554, appeal from E.D. La.
  • Richman, J. (Richman, Willett, Douglas) (oral argument), Willett, J., concurring; Douglas, J., concurring; maritime law, arbitration
  • Vacating denial of arbitration, and remanding with instructions to issue order compelling arbitration of seaman’s claims from severe leg injuries.
  • Jeremiah Hill, an able-bodied seaman, suffered severe leg injuries when unsecured cargo crushed his leg aboard the M/V BLIZZARD, an offshore supply vessel owned and operated by Jackson Offshore. His injuries required at least eight surgical procedures and extended hospitalization and in-patient rehabilitation. Jackson Offshore provided maintenance and cure plus more than $100,000 in supplemental benefits, including full net wages, a furnished apartment, and transportation. Hill alleges that Jackson Offshore’s CEO, Lee Jackson, repeatedly warned him that if he retained an attorney, the company’s financial assistance “would necessarily end” and he would be “cut off.”
  • Approximately six months after the injury, Lee and the company’s CFO visited Hill at his apartment and presented him with an “Advance Wage and Benefits Agreement” under which Jackson Offshore would extend supplemental benefits in exchange for Hill’s agreement to arbitrate any claims against the company. The Agreement contained a delegation clause providing that “any dispute relating to the validity, interpretation, or application of this Agreement shall be submitted to the arbitrator for resolution.” Hill signed, alleging he was denied time to review the Agreement and feared becoming homeless if he refused.
  • Hill later sued in district court alleging negligence and unseaworthiness, and sought a declaratory judgment that the Agreement was null and void due to fraud, fraudulent inducement, economic duress, and vitiated consent from medication. Jackson Offshore moved to compel arbitration; the district court denied the motion without prejudice and permitted limited discovery on enforceability.
  • At issue on appeal was (1) whether the Fifth Circuit had appellate jurisdiction under 9 U.S.C. § 16(a) where the district court denied the motion to compel arbitration without prejudice; and (2) whether Hill’s challenges to the Agreement (fraud and economic duress) specifically targeted the delegation clause or merely the Agreement as a whole, such that the severability principle required referring those challenges to the arbitrator.
  • As to its appellate jurisdiction, the court held that § 16(a) “does not draw a distinction between orders entered with prejudice and orders entered without prejudice,” joining the Third, Fourth, Seventh, Eighth, and Eleventh Circuits in exercising jurisdiction over such denials. It quoted the Third Circuit: “We have jurisdiction over orders refusing to compel arbitration ‘irrespective of the fact that the [motion] was denied without prejudice.'”
  • As to severability and specificity, applying Rent–A–Center, West, Inc. v. Jackson, 561 U.S. 63 (2010), the court explained that when a party seeking arbitration invokes a delegation clause, the opposing party must “directly challenge the arbitration or delegation clause, not just the contract as a whole.” Hill’s arguments about fraud and duress were directed at the entire Agreement; he “never explained how he was fraudulently induced into agreeing to the delegation clause specifically or how economic duress compelled him to agree to that clause specifically.” As the court noted, when asked at oral argument what Hill specifically discussed with Lee and Harkness about the delegation clause, Hill stated: “[T]hey did not have any in-depth discussion about any of the Agreement.”
  • The court also rejected reliance on Coinbase, Inc. v. Suski (2024), noting that decision “did not undermine the Court’s instructions in Rent–A–Center” and that the party in Coinbase had directed its challenge “‘specifically to’ the delegation provision”—something Hill did not do here.
  • Judge Willett concurred but wrote separately to contend that the Fifth Circuit’s decision in Kubala v. Supreme Production Services, Inc., 830 F.3d 199 (5th Cir. 2016), “blurred” Rent–A–Center‘s “bright line” by adding a preliminary “contract formation” inquiry before reaching the delegation clause. He wrote: “What should be a straight path to arbitration has become a doctrinal detour.” His view: “Kubala‘s extra step ‘is irreconcilable, and thus inoperative, and has been since it was decided.'” He cautioned: “Small deviations have a way of hardening into well-worn paths.” He also stated: “Hierarchy controls. Habit cannot.”
  • Judge Douglas concurred in the result but disagreed with Judge Willett’s criticism of Kubala, defending the Fifth Circuit’s two-step framework as “fall[ing] cleanly within [Rent–A–Center‘s] margins.” She contended the court should confirm that “the parties had entered into the Agreement at all” before compelling arbitration—a formation inquiry distinct from the validity inquiry Rent–A–Center reserves for the arbitrator. Applying Louisiana law, she concluded that Hill’s fraud and duress arguments constitute “vices of consent” creating only a “relative nullity”—the contract “is deemed never to have existed only when it ‘has been declared null by the court'”—and because no court had so declared, the Agreement exists, and the unchallenged delegation clause controls. She concluded: “Absent clear guidance from the Supreme Court, our court is duty-bound to follow its own interpretation of Rent-A-Center pursuant to the rule of orderliness.”

Unpublished decisions

• United States v. Serna Buentello, 25-20402, appeal from S.D. Tex.
  • per curiam (Higginbotham, Engelhardt, Ramirez) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• United States v. White, 25-11063, appeal from N.D. Tex.
  • per curiam (King, Haynes, Ho) (no oral argument), criminal, Second Amendment, Commerce Clause
  • White challenged his guilty plea conviction for felon-in-possession under 18 U.S.C. § 922(g)(1), arguing: (1) the statute requires more than a firearm’s past movement in commerce to satisfy the interstate nexus element; (2) if not so interpreted, Congress exceeded its Commerce Clause authority; and (3) § 922(g)(1) violates the Second Amendment.
  • The court held that the interstate commerce element is satisfied where the firearm previously traveled in interstate commerce, and that both the Commerce Clause and Second Amendment challenges are foreclosed by binding precedent. The government’s motion for summary affirmance was granted, and the conviction was affirmed.

• Yong v. Bondi, 25-60568, petition for review of BIA order
  • per curiam (Higginbotham, Engelhardt, Ramirez) (no oral argument), immigration
  • Dismissing Cameroonian citizen’s petition for review of BIA’s denial of her motion to reopen under 8 C.F.R. § 1003.2(a), holding it lacked jurisdiction to review the BIA’s discretionary denial of sua sponte regulatory reopening because there is no legal standard by which to judge that discretionary decision. The court also found that Yong waived any challenge to the BIA’s untimeliness determination by failing to brief it.

• United States v. Hernandez-Salazar, 25-40760, appeal from S.D. Tex.
  • per curiam (Higginbotham, Engelhardt, Ramirez) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• United States v. Castro, 25-50191, appeal from W.D. Tex.
  • per curiam (Higginbotham, Engelhardt, Ramirez) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• United States v. Ortiz-Reyes, 25-60547, appeal from S.D. Miss.
  • per curiam (Higginbotham, Engelhardt, Ramirez) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• United States v. Bengston, 25-20417, appeal from S.D. Tex.
  • per curiam (Higginbotham, Engelhardt, Ramirez) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• United States v. Garcia, 25-20399, appeal from S.D. Tex.
  • per curiam (Clement, Southwick, Oldham) (no oral argument), criminal, sentencing
  • Affirming 24-month revocation sentence.
  • Garcia appealed his 24-month revocation sentence, arguing that the district court improperly considered the need to promote his “respect for the law” under 18 U.S.C. § 3553(a)(2)(A)—a retributive factor that Esteras v. United States, 606 U.S. 185 (2025), holds may not be considered when revoking supervised release. The issue was unpreserved, so review was for plain error.
  • The court concluded that the district court’s reference to Garcia’s “lack of respect for the law” was, read in context, a permissible comment on his criminal history and risk of recidivism—not an impermissible reliance on § 3553(a)(2)(A). The court noted the sentence was fashioned to deter future criminal conduct and protect the public, which are permissible considerations under §§ 3553(a)(1) and (a)(2)(B)–(C).

• United States v. Taylor, 25-10943, appeal from N.D. Tex.
  • per curiam (Stewart, Graves, Oldham) (no oral argument), criminal
  • Affirming conviction of possession of a firearm by a felon.
  • Taylor appealed his guilty plea conviction and sentence for possession of a firearm by a convicted felon, raising three arguments: (1) the district court erroneously applied the two-level enhancement under U.S.S.G. § 2K2.1(b)(1)(A) because the evidence did not establish he possessed at least three firearms; (2) 18 U.S.C. § 922(g)(1) violates the Second Amendment on its face; and (3) § 922(g)(1) exceeds Congress’s Commerce Clause authority.
  • The court found that the evidence supported a plausible inference of constructive possession of at least two additional firearms, and Taylor failed to show clear or obvious error. The Second Amendment and Commerce Clause challenges were foreclosed by circuit precedent.

• Brandt v. Mullin, 25-50973, appeal from W.D. Tex.
  • per curiam (Davis, Wilson, Douglas) (no oral argument), employment
  • Dismissing appeal from magistrate judge’s report and recommendations to dismiss employment claims.
  • After being discharged from DHS/ICE, pro se plaintiff Brandt sued and was granted IFP status. A magistrate judge recommended dismissal for failure to state a claim. Brandt filed a document titled “Notice of Appeal and Objection to Magistrate Judge’s Order,” which was construed as a notice of appeal. The court considered whether the filing was actually objections to the magistrate’s report and recommendation under 28 U.S.C. § 636(b)(1).
  • The court concluded that Brandt’s filing was better understood as objections to the R&R for the district judge to decide. It dismissed the appeal and remanded with instructions to construe the filing as objections, expressing no opinion on the merits.

• United States v. Baeza-Trejo, 25-40656, appeal from S.D. Tex.
  • per curiam (Higginbotham, Engelhardt, Ramirez) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Noble v. Texas Board of Pardons and Paroles, 25-50809, appeal from W.D. Tex.
  • per curiam (Clement, Southwick, Oldham) (no oral argument), prisoner suit
  • Affirming dismissal of Texas state prisoner’s sec. 1983 claim.
  • Noble, a Texas state prisoner convicted of stalking, brought § 1983 claims challenging the Texas Board of Pardons and Paroles’ denial of his release to mandatory supervision. He alleged violations of due process. The district court dismissed his complaint under 28 U.S.C. § 1915A for lack of jurisdiction and failure to state a claim.
  • The court held that Noble’s complaint reflected the TBPP satisfied all procedural due process requirements (advance notice, opportunity to be heard, and a statement of reasons). Additionally, his allegations failed to show the TBPP acted in an arbitrary manner in the constitutional sense, and allowing amendment would have been futile.