Take the Fifth

Designated for publication

• Cortez v. Rubio, 25-20339, appeal from S.D. Tex.
  • Smith, J. (Higginbotham, Smith, Oldham) (oral argument), immigration, Administrative Procedures Act, timeliness
  • Affirming dismissal of claims arising from denial of issuance of passport to plaintiff on basis of failure to prove citizenship.
  • Hector Cortez claims he was born in Laredo, Texas. About a decade ago, he used his U.S. passport to travel to Mexico, reported it stolen, then found it days later; when he returned to the United States, his passport was retained. He filed at least four passport applications, all denied. The Department of State noted that his birth attendant had been suspected of filing false birth records and that Cortez had a conflicting Mexican birth certificate, which he never adequately explained despite repeated requests. In 2025, Cortez sued, asserting claims under 8 U.S.C. § 1503(a), the APA, the Mandamus Act, the Full Faith and Credit Clause, and the Fifth, Tenth, and Fourteenth Amendments. The district court granted the motion to dismiss.
  • At issue on appeal were (1) whether Cortez’s § 1503(a) claim for a declaration of U.S. nationality was time-barred by the statute’s five-year limitations period; (2) whether equitable tolling applied; (3) whether the APA and Mandamus Act provided alternative avenues for relief; and (4) whether Cortez stated viable constitutional claims.
  • As to the § 1503(a) time bar, the court held that Cortez’s 2013 passport denial was the “first final administrative denial” triggering the five-year clock, joining sister circuits in interpreting passport denials for lack of identity as necessarily denials “upon the ground that [the applicant] is not a national of the United States.” Subsequent applications and denials did not reset the clock: “We express great skepticism that an enterprising plaintiff can successfully invoke the ‘qualitative differences’ test to circumvent the unambiguous textual command of the five-year time bar.” Equitable tolling was unavailable because DOS repeatedly outlined its reasons for denial, the legal standard, and the timeline for available remedies — “Neither the number of repeated applications nor corresponding denials can demonstrate that Cortez ‘pursu[ed] his rights diligently’ and ‘some extraordinary circumstance stood in his way.'”
  • As to the APA, Mandamus, and Constitutional Claims, the court held that the APA claim was jurisdictionally barred because § 1503(a) provides an adequate alternative remedy, even though Cortez failed to timely invoke it: “A legal remedy is not inadequate for purposes of the APA because it is procedurally inconvenient for a given plaintiff.” Mandamus relief was likewise unavailable because Cortez showed no clear right to relief, § 1503(a) provides an adequate remedy, and passport issuance is discretionary. On the constitutional claims, the court noted that “[t]hat Congress [] provided a cause of action under [Section] 1503 precludes finding an implied private right of action under the Constitution.” The Fifth Amendment due process claim failed because Cortez’s “application was denied for [] lack of documentation” required of all applicants—”Cortez cannot bootstrap a citizenship challenge into a due process one.” The Full Faith and Credit and Tenth Amendment arguments were forfeited for failure to develop them on appeal.

• Morris v. United States, 24-40576, appeal from E.D. Tex.
  • Southwick, J. (Higginbotham, Jones, Southwick) (oral argument); Federal Tort Claims Act
  • Reversing dismissal of plaintiff’s FTCA claim arising from alleged negligence of federal probation officer arising from attack of plaintiff by federal supervised releasee, and remanding for further proceedings.
  • Rondell Malveaux, while on federal supervised release, left a residential reentry facility without permission and threatened his ex-girlfriend, Brittany Morris. Morris warned Malveaux’s probation officer, Beverly Matt, who petitioned for a warrant but did not mention the threat to Morris or indicate urgency. On August 4, Malveaux burglarized Morris’s home, attacked her friend, and began threatening to kill Morris. Officer Matt then promised Morris she would obtain an arrest warrant “immediately,” “make sure Morris was not in danger,” and “ensure that Morris was safe to stay in her home.” Over the next two days, Officer Matt did not inform the court or the U.S. Attorney’s office of the threats, did not expedite the warrant, and did not notify local law enforcement. Malveaux then broke into Morris’s home, repeatedly stabbed her—breaking the blade off in her body—and severed her spinal cord, leaving her a quadriplegic. Morris sued under the Federal Tort Claims Act (FTCA), asserting negligence and negligent undertaking. The district court dismissed for lack of jurisdiction, holding the FTCA’s misrepresentation exception applied.
  • At issue on appeal were (1) whether the FTCA’s misrepresentation exception (28 U.S.C. § 2680(h)) bars Morris’s claims; and (2) whether the discretionary function exception (28 U.S.C. § 2680(a)) applies to Officer Matt’s failure to act.
  • Regarding the misrepresentation exception, the court applied its two-step framework, asking whether “the focal point of the claim is negligence in the communication of (or failure to communicate) information or negligence in the performance of an operational task, with misrepresentation being merely collateral.” Following the Supreme Court’s decision in Block v. Neal, the court held that Officer Matt’s duty to supervise Malveaux with due care and pursue a warrant expeditiously was distinct from any duty to communicate accurate information to Morris. The court wrote: “Officer Matt’s misrepresentation punctuates the injury; the injury does not spring from it.” The presence of reliance in Morris’s complaint did not transform the claim into one for misrepresentation, because “Officer Matt, under the facts alleged, would have failed to discharge her duty to act swiftly to Morris, even if Officer Matt had never communicated to Morris that she should stay home.”
  • Regarding the discretionary function exception, even assuming Officer Matt’s actions were discretionary under the first prong of the Berkovitz/Gaubert test, the court held Morris pled sufficient facts to defeat the second prong—that the challenged conduct was “susceptible to policy analysis.” The court emphasized that Officer Matt had already made the policy-laden decision to seek an expedited warrant; the alleged tort was her negligent failure to carry out that decision: “the tort is the allegedly negligent performance by Officer Matt after her discretionary decision to secure a warrant posthaste.” The court analogized to the lighthouse in Indian Towing, distinguishing “the decision to undertake and maintain [a] lighthouse” (steeped in policy) from “the failure to maintain the lighthouse in good condition” (no policy judgment). It cautioned: “We do not today create liability every time a federal employee negligently implements a policy,” but held that Officer Matt’s multi-day inaction—after deciding on an expedited course—was “not susceptible to policy analysis, in context of this case’s larger factual tapestry.”
  • The court noted the distinction between when the government makes a policy decision and the later implementation of that decision: “‘[M]ere association of a decision with regulatory concerns is not enough; exempt decisions are those fraught with . . . public policy considerations.'” Even though probation officers routinely balance sensitive policy factors, the failure to take any action for several days—after already having decided to pursue a warrant on an expedited basis because the probationer posed a significant safety threat—is not conduct grounded in the policy of the regulatory regime.

Unpublished decisions

• United States v. Jarae Demarcus Morgan, 25-11169, appeal from N.D. Tex.
  • per curiam (Davis, Jones, Ho) (no oral argument), criminal, Second Amendment, Commerce Clause
  • Affirming conviction of possession of a firearm by a felon.
  • The court granted the government’s unopposed motion for summary affirmance, holding that Morgan’s Second Amendment challenges are foreclosed by United States v. Diaz, 116 F.4th 458 (5th Cir. 2024), and United States v. Schnur, 132 F.4th 863 (5th Cir. 2025), and his Commerce Clause challenges are foreclosed by United States v. Jones, 88 F.4th 571 (5th Cir. 2023).

• Gabriel Olivier v. City of Brandon, Mississippi; William A. Thompson, 22-60566, appeal from S.D. Miss.
  • per curiam (Wiener, Graves, Douglas) (no oral argument), § 1983
  • On remand from the U.S. Supreme Court, remanding § 1983 claim to district court for further proceedings.
  • Following the Supreme Court’s reversal in Olivier v. City of Brandon, Miss., 607 U.S. —-, 146 S. Ct. 916, 926 (2026), which held Heck does not bar a § 1983 suit seeking purely prospective relief when the plaintiff has a prior conviction for violating the challenged ordinance, the Fifth Circuit remanded the case to the district court for further proceedings consistent with the Supreme Court’s opinion.

• John Poullard v. Anya Guillory, 25-30715, appeal from W.D. La.
  • per curiam (Davis, Jones, Ho) (no oral argument), prisoner suit, appellate jurisdiction
  • Affirming in part and dismissing appeal in part of dismissal of § 1915 suit.
  • The court held that none of Poullard’s post-judgment motions extended the appellate window to December 1, 2025, meaning jurisdiction existed only over the November 6 denial of reconsideration. The court recharacterized that motion as a Rule 60(b) motion and found no abuse of discretion in its denial. The appeal was affirmed in part, dismissed in part for want of jurisdiction, and Poullard was warned that future frivolous filings will result in sanctions.

• Kentdrick D. Ratliff v. Hammond City; Louisiana State, 25-30404, appeal from E.D. La.
  • per curiam (Davis, Jones, Ho) (no oral argument), § 1983
  • Affirming dismissal of pro se complaint alleging excessive force, kidnapping, and false arrest against the State of Louisiana (for lack of subject-matter jurisdiction) and against Hammond City (as time-barred).
  • The court held that the district court did not err in dismissing claims against Louisiana for lack of subject-matter jurisdiction under La. Stat. § 13:5106, or in dismissing claims against Hammond City as prescribed under Louisiana’s one-year prescriptive period. The court also found no abuse of discretion in declining to compel discovery and noted Ratliff abandoned remaining claims by failing to brief them.

• United States v. Lazaro Javier Ruiz-Arauz, 25-50417, appeal from W.D. Tex.
  • per curiam (Stewart, Graves, Oldham) (no oral argument), criminal, supervised release
  • Affirming revocation of supervised release when the revocation hearing occurred after the supervised release term expired.
  • The court held that supervised release commenced upon release from BOP custody per 18 U.S.C. § 3624(e) and United States v. Johnson, 529 U.S. 53 (2000), and that the district court’s jurisdiction was preserved because the revocation petition and arrest warrant issued before the term expired, per 18 U.S.C. § 3583(i).

• United States v. Eduardo Ramiro Gonzalez-Leal, 25-20517, appeal from S.D. Tex.
  • per curiam (Davis, Wilson, Douglas) (no oral argument), criminal, sentencing
  • Affirming sentence and remanding for the limited purpose of correcting a clerical error in the written judgment under Fed. R. Crim. P. 36, so that it reflects the oral pronouncement of concurrent sentences.

• United States v. Agustin Ruiz-Vazquez, 25-50930, appeal from W.D. Tex.
  • per curiam (Stewart, Graves, Oldham) (no oral argument), criminal, sentencing
  • Affirming sentence on conviction of illegal reentry, holding the challenge to the sentence foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998), and United States v. Pervis, 937 F.3d 546 (5th Cir. 2019).

• Securities and Exchange Commission v. Timothy Barton, 25-10871, appeal from N.D. Tex.
  • per curiam (Richman, Southwick, Willett) (no oral argument), receivership, appellate jurisdiction
  • Dismissing for lack of appellate jurisdiction a midstream administrative order in an ongoing receivership.
  • The court held the order was not a final decision, not an injunction, and not an appealable receivership order under the narrow scope of § 1292(a)(2). The court directed Barton to show cause by May 29, 2026, why sanctions should not be imposed, noting his thirteen receivership-related appeals in three years and this court’s prior warning in SEC v. Barton, 170 F.4th 938 (5th Cir. 2026).

• United States v. Samuel Perez-Avalos, 25-11259, appeal from N.D. Tex.
  • per curiam (Elrod, Smith, Stewart) (no oral argument), criminal, sentencing
  • Affirming sentencing enhancement in 8 U.S.C. § 1326(b) for illegal reentry, holding the argument foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998), and United States v. Pervis, 937 F.3d 546 (5th Cir. 2019).

• Linda Hill v. Geico General Insurance Company, 25-30497, appeal from M.D. La.
  • per curiam (Davis, Jones, Ho) (no oral argument), insurance
  • Affirming summary judgment dismissal of UM claim.
  • The court held that, under Louisiana law, a plaintiff must prove that both the owner and the driver of the at-fault vehicle were uninsured or underinsured. Hill offered evidence that the vehicle owner was underinsured but presented no evidence that the driver, Sarmiento, lacked insurance of his own. A police report showing Sarmiento lacked a valid license and was from Honduras was likely forfeited and, in any event, insufficient to raise an inference of uninsured status.

• Joseph Anthony Reyna v. Block, Inc. d/b/a Cash App; Sutton Bank, 25-50966, appeal from W.D. Tex.
  • per curiam (Davis, Jones, Ho) (no oral argument), Electronic Funds Transfer Act, amendment
  • Affirming dismissal of EFTA claim and denial of leave to amend.
  • At issue on appeal were (1) whether the pro se plaintiff adequately alleged statutory notice under the Electronic Funds Transfer Act (EFTA), 15 U.S.C. § 1693f; (2) whether the district court erred in dismissing without leave to amend; and (3) whether a prefiling injunction was warranted.
  • The court held that the complaint’s bare reference to “a Litigation Preservation Notice (June 6, 2025)” failed to allege that the notice met the EFTA’s content requirements (account identification, error amount, basis for belief). The court found no abuse of discretion in dismissing without leave to amend because Reyna had already pleaded his best case and never elaborated on the notice despite multiple opportunities. The prefiling injunction was also upheld, and Reyna was warned that future frivolous filings will result in sanctions.

• United States v. Carlos Suarez-Pineda, 25-50557, appeal from W.D. Tex.
  • per curiam (Richman, Southwick, Willett) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.