Take the Fifth

Designated for publication

• La Union del Pueblo Entero v. Nelson, 22-50775, c/w Mi Familia Vota v. Abbott, 22-50777, c/w OCA-Greater Houston v. Nelson, 22-50778, appeal from W.D. Tex.
  • per curiam (en banc: Elrod, Stewart, Richman, Southwick, Haynes, Graves, Higginson, Douglas, Ramirez, JJ., voting against rehearing; Jones, Smith, Willett, Ho, Duncan, Engelhardt, Oldham, Wilson, JJ., voting for rehearing) (oral argument at panel stage); election law, standing, sovereign immunity, en banc
  • Denying rehearing en banc of December 31, 2025, panel opinion (Richman, Southwick, Oldham; Oldham, J., dissenting) affirming in part and reversing in part denial of defendants’ motions to dismiss sec. 1983 challenges to certain provisions of Texas’s Election Protection and Integrity Act of 2021.
  • Judge Oldham’s dissent, joined by Judges Jones, Smith, Willett, Ho, and Engelhardt, argues that the panel’s approach to Ex parte Young transforms what should be a narrow exception to state sovereign immunity into a sweeping “No Nexus Rule” that obliterates the doctrine’s limitations. Judge Oldham contends that under the correct understanding, Ex parte Young permits a plaintiff to sue only to enforce his own constitutional rights against a state officer, but the panel’s approach renders the plaintiff “irrelevant”—”[t]he plaintiff could be a rock or a potted plant” so long as the defendant state officer has “some connection” to the challenged law. Under this rule, he writes, “the only limit on the federal court’s injunctive power is the imagination of the federal district judge.” Judge Oldham insists this is “inconsistent with the judicial power” because the Framers “drafted Article III to deny federal judges the power to revise law,” and courts especially lack power to “revise a co-equal sovereign’s law.”
  • Second, Judge Oldham warns that the “No Nexus Rule inflicts irreparable damage on state sovereignty,” turning “state sovereign immunity into a fig leaf” and arrogating to federal courts “superpowers that have no place in our Constitution or our constitutional Republic.” He finds the rule “particularly pernicious when it comes to elections,” because any time a state passes an election-integrity law, “dozens of advocacy organizations file lawsuits seeking to facially enjoin the statutes in their entirety—often before the law goes into effect,” giving “district judges freewheeling license to rewrite state election law.” Judge Oldham concludes that through this “flawed approach to the Ex parte Young cause of action, we have invited” this abuse and “kneecapped States’ ability to prescribe election protocols and combat voter fraud.”

• United States v. Filline, 25-50049, appeal from W.D. Tex.
  • Willett, J. (Willett, Wilson, Douglas) (no oral argument), criminal, sufficiency of evidence
  • Affirming conviction of conspiracy to commit wire fraud.
  • Christopher Filline, then police chief of Castroville, Texas, was convicted of conspiracy to commit wire fraud after arranging for the destruction of his wife’s 2007 Lincoln Navigator so he could falsely report it stolen and collect roughly $14,000 in insurance proceeds from Farmers Insurance Group. Facing significant financial strain—including $30,000 in credit-card debt, unpaid medical bills, and delinquent mortgage and car payments—Filline repeatedly told coworkers he wanted to “get rid of” the Navigator, which he called a “piece of junk.” He recruited animal-control officer Ambrose Rymers, asking if he had any “piece of shit cousins” who would “take care of the vehicle.” Rymers enlisted his cousin Oscar Hernandez, who drove the Navigator from a staged location near the police station to a remote road and burned it. Filline then filed a false police report, submitted an insurance claim, and later threatened to kill Rymers if he ever spoke about the incident.
  • At issue in the appeal was whether the evidence was sufficient to prove the agreement element of conspiracy to commit wire fraud under 18 U.S.C. § 1349, where the Government’s case rested entirely on circumstantial evidence.
  • The court explained that the evidence “worked cumulatively” across three categories. First, Filline’s financial distress supplied motive, and Rymers’s testimony that he understood the request to involve criminal conduct “gave the jury a reason why Rymers joined the plan and what he understood the plan to be.” Second, the plan’s structure—recruitment of a known criminal relative, staged access to the Navigator with keys left inside, the coordinated nighttime burning, and Filline’s command that “we’re not going to talk about this ever again”—showed “concerted action from beginning to end: recruitment, coordination, execution, secrecy, and concealment.” The method of destruction itself was telling: “burning a vehicle provides no profit to thieves and is inconsistent with ordinary car theft,” and was the very method Filline had earlier suggested to his mechanic.
  • Third, the post-destruction conduct—including inconsistent accounts of when the Navigator went missing, contacting the insurance agent before filing a police report, missing surveillance video of Filline’s conversation with Hernandez after a later arrest, and a secretly recorded conversation in which Filline asked Rymers “what are we going to do about it?”—permitted the jury to view the burning “not as the scheme’s endpoint” but as “the opening act.” The court emphasized: “No single fact had to carry the verdict alone. . . . Sufficiency review asks whether the evidence as a whole—strand by strand, fact by fact, inference by inference—could support a rational verdict. Here, it could.”
  • The court also noted that “circumstantial evidence is not second-class evidence” and cautioned that its role is not “to retry the case or second-guess the jury’s common-sense inferences,” but only to decide “whether a rational jury could have returned this verdict.”

• Bravo v. Dallas Independent School District, 25-10982, appeal from N.D. Tex.
  • Graves, J. (Wiener, Haynes, Graves) (no oral argument), Title VII, employment discrimination
  • Affirming summary judgment dismissal of employment discrimination claim.
  • Joe Bravo, a Mexican-American teacher, was fired by the Dallas Independent School District after six students complained that he made racially insensitive remarks in the classroom. Bravo sued the District under Title VII of the Civil Rights Act, alleging discrimination based on his Mexican-American ancestry. The district court granted summary judgment to the District, finding that Bravo “fail[ed] to offer any evidence of a similarly situated comparator” under the fourth prong of the McDonnell Douglas framework.
  • At issue on appeal was whether the Supreme Court’s recent decision in Ames v. Ohio Department of Youth Services, 605 U.S. 303 (2025), implicitly overruled Fifth Circuit precedent requiring a Title VII plaintiff to identify a similarly situated comparator to establish a prima facie case under McDonnell Douglas.
  • The panel applied the Fifth Circuit’s rule of orderliness, which binds panels to prior precedent “absent an intervening change in the law,” and held that a Supreme Court decision qualifies only if it “must unequivocally overrule prior precedent.” In Ames, the Supreme Court rejected the Sixth Circuit’s rule requiring “majority-group plaintiffs . . . to produce certain types of evidence . . . that would not otherwise be required to make out a prima facie case” and cautioned against “inflexible formulations of the prima facie standard.” But the court found that Ames‘s “clarification of the Title VII analysis does not clearly apply here” because Fifth Circuit McDonnell Douglas authority “is flexible enough to survive Ames,” noting that the circuit has “already cautioned that our review of whether a comparator employee is similarly situated ‘cannot be too rigid.'”
  • Notably, the panel’s footnotes flagged growing intra-circuit tension over whether the comparator requirement is too demanding. The court cited the Eleventh Circuit’s approach in Tynes v. Florida Department of Juvenile Justice, which allows plaintiffs to survive summary judgment without comparator evidence because the McDonnell Douglas prima facie case is “an ‘evidentiary tool’ not ‘a substantive standard of liability.'” The court also cited concurrences from Chief Judge Elrod (calling the Fifth Circuit’s reading of McDonnell Douglas “‘foreign to both Title VII and Rule 56′”), Judge Costa, and Judge Oldham, each questioning the rigidity of the current framework. The panel did not reach Bravo’s other arguments because the claim failed at this “threshold inquiry.”

Unpublished decisions

• United States v. Cruz, 25-40637, appeal from E.D. Tex.
  • per curiam (Richman, Southwick, Willett) (no oral argument), criminal, guilty plea
  • Affirming guilty plea conviction of unlawful possession of a machinegun, where defendant challenged whether plea was knowing and voluntary where the district court allegedly failed to comply with Federal Rule of Criminal Procedure 11 by not adequately informing him of the nature of the offense, applicable forfeiture, and the mandatory special assessment
  • Reviewing for plain error because Cruz did not object below, the court found that the rearraignment colloquy was sufficient for a reasonable person to understand the charge. As to the forfeiture and special assessment omissions, Cruz failed to show that the errors affected his substantial rights—i.e., a reasonable probability he would not have pleaded guilty but for the errors.

• Simmons v. Brotherhood Mutual Insurance Co., 25-30463, appeal from W.D. La.
  • per curiam (Elrod, Willett, Wilson) (oral argument), insurance
  • Affirming summary judgment for insurer on claim arising from fatal car accident.
  • At issue on appeal was whether a private school’s commercial auto insurance policy covered a fatal car accident that occurred while a student’s family member drove the student home from a basketball game. The key question was whether anyone in the vehicle was an “authorized operator” using a “nonowned vehicle” at the school’s “request” under the policy terms.
  • Applying Louisiana contract interpretation principles, the court held that the school’s email to parents organizing carpools did not constitute a “request” for parents to drive their own children to the game. The email merely asked parents to inform the school of travel plans and offered the option for pre-approved parents to transport other players. Because no school request for the family’s vehicle use was made, the “authorized operator” coverage provision was not triggered.

• United States v. Cuevas-Aranda, 25-50735, appeal from W.D. Tex.
  • per curiam (Davis, Wilson, Douglas) (no oral argument), criminal, sentencing
  • Affirming enhanced sentence for illegal reentry.

• United States v. Honore, 25-30516, appeal from E.D. La.
  • per curiam (Clement, Richman, Willett) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Hall v. TJX Companies, Inc., 25-10930, appeal from N.D. Tex.
  • Higginson, J. (Smith, Higginson, Wilson) (no oral argument), personal tort
  • Vacating dismissal with prejudice and remanding to dismiss without prejudice.
  • At issue on appeal was whether the district court erred by dismissing a pro se plaintiff’s personal injury claims with prejudice when the magistrate judge had recommended dismissal without prejudice—for failure to prosecute (as to TJX) and for lack of standing under Texas’s “no direct action” rule (as to Zurich).
  • The court held that dismissal with prejudice for failure to prosecute requires either a clear record of delay or contumacious conduct, neither of which the magistrate judge found. It further held that dismissals for lack of subject-matter jurisdiction are inherently without prejudice, and that a plaintiff should ordinarily be afforded at least one opportunity to amend before claims are dismissed with prejudice under Rule 12(b)(6).

• United States v. Hill, 25-11121, appeal from N.D. Tex.
  • per curiam (Richman, Southwick, Willett) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• United States v. Vazquez-Rodriguez, 25-50929, appeal from W.D. Tex.
  • per curiam (Higginbotham, Engelhardt, Ramirez) (no oral argument), criminal, sentencing
  • Affirming enhanced sentence on conviction of illegal reentry.

• United States v. Roy, 24-60639, appeal from N.D. Miss.
  • per curiam (Davis, Jones, Ho) (no oral argument), criminal, compassionate release
  • Affirming denial of motions for compassionate release and sentence reduction, where defendant argued inadequate medical care, COVID-19 risk, and rehabilitation.
  • The sentence-reduction issue was waived for failure to brief. On the compassionate-release motion, the district court acknowledged Roy’s medical conditions as extraordinary and compelling but permissibly denied relief based on the § 3553(a) sentencing factors, particularly the seriousness of her criminal conduct (masterminding criminal activity) and the need to protect the public.

• Ibrahim v. Blanche, 25-60463, petition for review of BIA order
  • per curiam (Davis, Jones, Ho) (no oral argument), immigration
  • Denying Bangladeshi citizen’s petition for review of BIA order affirming the IJ’s adverse credibility finding and denying claims for asylum, withholding of removal, and CAT protection.
  • The credible fear interview document was not shown to be unreliable and was properly considered. The adverse credibility determination was supported by specific and cogent reasons, and the petitioner failed to show the evidence compelled a contrary conclusion. The adverse credibility finding was dispositive of asylum and withholding; the petitioner also failed to establish eligibility for CAT protection.

• United States v. Gates, 25-60512, appeal from N.D. Miss.
  • per curiam (Jones, Duncan, Douglas) (no oral argument), criminal, sentencing
  • Affirming a 24-month, within-guidelines sentence upon supervised release revocation without providing an adequate explanation.
  • The defendant could not show plain error in the district court’s explanation of its sentence.

• Chavez v. Blanche, 25-60647, petition for review of BIA order
  • per curiam (Jones, Duncan, Douglas) (no oral argument), immigration
  • Denying Salvadoran citizen’s petition for review of BIA order affirming IJ’s denial of asylum and denying administrative closure pending a U-visa petition.
  • The court found that the petitioner failed to demonstrate persecution on account of a protected ground, as gangs targeted her family for criminal rather than protected reasons. Objections to defective NTAs were forfeited under Sustaita-Cordova v. Garland because they were not raised before the close of pleadings. The BIA did not abuse its discretion in denying administrative closure where petitioner failed to provide a copy of the U-visa petition, analyze its likelihood of success, or address the anticipated duration of closure.

• United States v. Olivares-Calderon, 25-20213, appeal from S.D. Tex.
  • per curiam (Clement, Richman, Willett) (no oral argument), criminal, sentencing
  • Affirming application of a two-level sentencing enhancement under U.S.S.G. § 3B1.1(c) for the defendant’s aggravating role as an organizer, leader, manager, or supervisor in a robbery conspiracy
  • Trial testimony from confidential informants and a detective established that the defendant organized the robbery, recruited accomplices, and claimed a larger share of the proceeds. Sworn testimony observed by the district court bore sufficient indicia of reliability, and the finding was plausible based on the record as a whole.

• Dumas v. Transfinancial Companies, L.L.C., 25-30473, appeal from W.D. La.
  • per curiam (Clement, Southwick, Engelhardt) (no oral argument), Fair Debt Collection Practices Act
  • Affirming dismissal of FDCPA claim.
  • At issue on appeal was whether a debt collector violated the Fair Debt Collection Practices Act (FDCPA) by sending verification letters after the consumer directed it to cease communications but then separately disputed the debts. The case raised a potential conflict between 15 U.S.C. § 1692c(c) (cease-communications requirement) and § 1692g(b) (debt verification obligation).
  • The court noted the unresolved circuit question but declined to reach it because Dumas forfeited his only live claim (under § 1692c(c)) by briefing only arguments under § 1692g(b), which was not pled in his complaint.

• United States v. Anderson, 26-10006, appeal from N.D. Tex.
  • per curiam (Richman, Southwick, Willett) (no oral argument), criminal, sentencing
  • Affirming 180-month, within-guidelines sentence for possession with intent to distribute methamphetamine, rejecting argument that sentence is substantively unreasonable based on the alleged disparity between actual methamphetamine and methamphetamine mixtures.
  • The district court considered and rejected the request for a downward variance, and the defendant’s disagreement with the sentence is insufficient to rebut the presumption of reasonableness afforded to within-guidelines sentences.

• Isibor v. Blanche, 25-60579, petition for review of BIA order
  • per curiam (Richman, Southwick, Willett) (no oral argument), immigration
  • Dismissing in part and denying in part Nigerian citizen’s petition for review of BIA order upholding IJ’s denial of asylum, withholding of removal, and CAT protection.
  • Because Isibor failed to raise any question of law or constitutional claim regarding asylum and withholding, the jurisdictional bar of § 1252(a)(2)(C) applied. His CAT claim was abandoned for failure to brief. His detention challenges were moot because he had already been removed from the United States.

• Reyes v. Blanche, 25-60648, petition for review of BIA order
  • per curiam (Richman, Southwick, Willett) (no oral argument), immigration
  • Denying in part and dismissing in part petitioner’s review of BIA order dismissing an appeal from an IJ’s denial of a motion to reopen proceedings and rescind an in absentia removal order. The petitioner argued defective NTA jurisdiction, inadequate notice, and due process violations.
  • The NTA-jurisdiction argument fails under Maniar v. Garland; the notice argument fails under Campos-Chaves v. Garland; the due process argument is unavailing because there is no liberty interest in connection with reopening proceedings; and the court lacks jurisdiction to review the BIA’s refusal to exercise sua sponte reopening authority.

• United States v. Mata, 25-50626, appeal from W.D. Tex.
  • per curiam (Richman, Southwick, Willett) (no oral argument), criminal, sentencing
  • Affirming application of a sentencing enhancement under U.S.S.G. § 2A6.1(b)(4) (substantial disruption of public functions or substantial expenditure of funds) following a conviction for conveying false information about an explosive.
  • Because the defendant merely forfeited (rather than waived) the objection, review was for plain error. Because the Fifth Circuit has not previously addressed what constitutes “substantial disruption” or “substantial expenditure” under § 2A6.1(b)(4), the defendant could not show a clear or obvious error.

• United States v. Garcia-Canales, 25-40564, appeal from S.D. Tex.
  • per curiam (Richman, Southwick, Willett) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.