Take the Fifth

Designated for publication

• Students Engaged in Advancing Texas v. Paxton, No. 25-51073, c/w Computer & Communications Industry Association v. Paxton, 26-50001, appeal from W.D. Tex.
  • per curiam (Smith, Haynes, Oldham) (no oral argument at motion stage), Haynes, J., concurring in order only (w/o op.); First Amendment, vagueness, injunctions
  • Granting defendant Texas’s motion for stay of preliminary injunction pending appeal regarding SB 2420, which placed age and parental-guidance regulations on app stores and in-app purchases.
  • The Texas Legislature enacted SB 2420, the “App Store Accountability Act,” requiring age verification, parental consent, and age-rating/content disclosures for children’s app downloads and in-app purchases. The district court issued universal preliminary injunctions against SB 2420 after applying strict scrutiny. Texas moved to stay those injunctions pending appeal.
  • At issue in the motion for stay was whether the district court applied the correct level of First Amendment scrutiny; whether the law’s exceptions rendered it content-based; whether vagueness invalidated the statute; and whether universal injunctions were proper.
  • The court granted Texas’s motion to stay the preliminary injunctions pending appeal, finding Texas made a strong showing of likely success on the merits and satisfied the remaining Nken v. Holder factors.
  • The court held that SB 2420 at most regulates commercial speech—app store listings that “propose a commercial transaction”—subject to intermediate scrutiny under Central Hudson, not strict scrutiny. The court emphasized that “[t]he ‘payment’ for apps that are purportedly ‘free’ is access to user data and private information,” and that terms of service impose “arbitration pr[o]visions that no child can understand.” Under intermediate scrutiny, Texas need only show a “reasonable fit” rather than the least restrictive means.
  • The court found the two statutory exceptions (emergency services and standardized-testing apps) were likely content-neutral and, in any event, severable under SB 2420’s strong severability clause. It also rejected the vagueness challenge, reasoning that terms like “new opportunities to make a purchase” and “material[] changes” have plain, well-established meanings. The court further noted that the district court’s universal injunctions likely exceeded federal equitable authority under Trump v. CASA, Inc., 606 U.S. 831 (2025).
  • On the remaining stay factors, the court stressed that “[w]hen a statute is enjoined, the State necessarily suffers the irreparable harm of denying the public interest in the enforcement of its laws,” and that the balance of equities favored Texas given its “substantial, if not compelling, interest in protecting children” from app stores that “have violated existing consumer protection and child privacy laws for years.”

• Martinez v. Hinojosa, 24-40535, appeal from S.D. Tex.
  • Southwick, J. (Southwick, Higginson, Wilson) (oral argument), excessive force, qualified immunity, municipal liability
  • Affirming summary judgment dismissal of excessive force claim, arising from police shooting of innocent person based on mistaken identity, on qualified immunity grounds.
  • On November 26, 2019, Laredo police responded to a domestic disturbance; suspect Cesar Terrazas fired an AR-15 at officers, wounding one, then broke into a nearby home. Jorge Martinez and his sister disarmed Terrazas inside the home. Martinez then exited naked, holding the confiscated rifle, and shouted “I am not the shooter.” Officer Hinojosa, positioned approximately 60 yards away and unaware of the suspect’s identity, shot Martinez in the abdomen approximately 13 seconds after he exited, perceiving him as the gunman.
  • At issue on appeal were whether Officer Hinojosa’s use of deadly force against a misidentified person constituted an unreasonable seizure under the Fourth Amendment; whether the officer was entitled to qualified immunity; and whether the City of Laredo bore municipal liability.
  • The court acknowledged a Fourth Amendment seizure occurred because Martinez was “the object of” intentionally applied force, even though the officer mistakenly believed he was the shooter. However, a seizure based on mistaken identity “is not necessarily unreasonable.” The court found the misidentification objectively reasonable: an armed person emerged from the residence where an active shootout had occurred moments earlier, and even if the officer heard Martinez’s shouted denial, “it was reasonable for him not to accept it.”
  • On the use of deadly force, the court applied the Graham factors: the crime was severe (shooting at officers), the person appeared to pose an immediate threat (carrying an assault rifle), and it was reasonable for the officer to believe the armed person was not surrendering. The court noted that “police officers are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving.” It further found that the failure to issue a warning was reasonable given the 13-second timeframe, Martinez’s erratic movements, and the officer’s reasonable assumption that prior gunfire exchange served as sufficient warning.
  • On the question of audio evidence, the court broke new ground, observing: “We have been directed to no precedent treating audio recordings as definitive as to what a person would have heard from the same location as the device that was recording audio.” Even assuming a factual dispute about what the officer heard, the court deemed it immaterial because a reasonable officer could discount the shouted denial.

• The Lutheran Church—Missouri Synod v. Christian, 25-50130, appeal from W.D. Tex.
  • Jones, J. (Elrod, Jones, Graves) (oral argument), Elrod, C.J., concurring, Graves, J., dissenting; First Amendment, diversity jurisdiction
  • Reversing dismissal of suit challenging church’s takeover of university, which dismissal had been on diversity-jurisdiction grounds, on basis that district court’s interpretation of church’s governing documents to determine church’s citizenship violated the church autonomy doctrine.
  • The Lutheran Church—Missouri Synod (“the Synod”) is an ecclesiastical body that incorporated LCMS, a Missouri nonprofit, to handle its civil affairs under the Church’s “two kingdoms” doctrine. Concordia University Texas, an “agency” of the Church, unilaterally amended its governance documents to reject LCMS authority in 2022. The Church’s internal judicatory body declared the amendments “null and void,” and the Synod in convention elected replacement board regents, who Concordia refused to seat. LCMS sued Concordia on diversity grounds (Missouri corporation vs. Texas citizens). Concordia argued that the Synod—characterized as a Texas unincorporated association with nationwide membership—was the real party in interest, thereby defeating diversity. The district court agreed and dismissed.
  • At issue on appeal were whether the First Amendment’s church autonomy doctrine barred the district court from recharacterizing the Church’s governance structure; and whether LCMS was the real party to the controversy for diversity jurisdiction purposes.
  • Writing the majority opinion, Judge Jones began with a tying together of St. Paul’s first letter to the Corinthians with First Amendment doctrine: “In his first Epistle to the Corinthians, the Apostle Paul cautions believers against taking their disputes to the secular courts. 1 Corinthians 6:1. Unfortunately, litigation within a church is sometimes unavoidable. In such cases, however, the courts of this country are infused with a history of religious tolerance and are guided more specifically by the First Amendment to interfere as little as possible in the affairs that constitute governance of ecclesiastical bodies.
  • The court held that the district court committed the precise error condemned in Serbian Eastern Orthodox Diocese v. Milivojevich: it “replaced the Church’s description of its polity, rooted in doctrine, with the court’s secular reading of the Church’s constitution, bylaws, and policies.” The majority emphasized that “[c]ivil courts cannot adjudicate ecclesiastical matters” and that the Church’s “two kingdoms” structure—separating spiritual governance (Synod) from civil affairs (LCMS)—is doctrinally rooted and entitled to deference.
  • The court rejected Concordia’s argument that the “neutral principles” exception applied, finding this case “principally requires a determination of church hierarchy” rather than a mere property dispute. On diversity, the court concluded that LCMS is far from a nominal party: it shares a board of directors with the Synod, owns property, enters into contracts, and is the designated “legal owner” of Concordia under the Church’s bylaws. The court warned that the implications of denying church autonomy are “grave,” including coercing churches to restructure, presenting Establishment Clause issues, and excluding nationally organized churches from federal court.
  • In concurrence, Chief Judge Elrod agreed with reversal but on narrower grounds, finding the case resolvable through corporate-document interpretation alone. She wrote that the district court “errs when it gives dispositive weight to § 4.18.4 of LCMS’s Policy Manual without harmonizing it with the document as a whole or with the Church’s other corporate documents,” and emphasized that the documents, when read together, clearly show LCMS is the civil component handling all litigation.
  • Judge Graves dissented, reasoning that courts may apply “neutral principles of law” to determine proper parties without intruding on religious doctrine. He cautioned that the majority’s approach risks conferring “general immunity” on religious institutions: “General immunity—regardless of the underlying dispute—cannot be the rule.” He also warned of “disparate treatment among differently structured religious groups” and argued the district court “was thorough and considerate in its analysis and correctly found that the church autonomy doctrine was not implicated.”

Unpublished decisions

• Peters v. Banner Health, 26-20035, appeal from S.D. Tex.
  • per curiam (Jones, Duncan, Douglas) (no oral argument), Title VII, employment discrimination, AI hallucinations, sanctions
  • Affirming dismissal of employment discrimintion claims.
  • At issue on appeal was whether the district court abused its discretion by dismissing with prejudice under Federal Rules of Civil Procedure 37(b) and 41(b) a pro se plaintiff’s Title VII and § 1983 employment discrimination suit for repeated violations of court orders, including filing motions with AI-hallucinated legal citations, refusing to comply with filing restrictions, and refusing to sit for a court-ordered deposition. The plaintiff also challenged the district court’s de novo review of the magistrate judge’s recommendation under Rule 72(b)(3) and 28 U.S.C. § 636(b)(1).
  • The court held the record amply supported dismissal, finding Peters engaged in willful, contumacious conduct—including “a calculated campaign of obstruction” during her deposition—that prejudiced the defendant and caused delay. The court also found that lesser sanctions, including fines and repeated warnings about AI-generated fake citations, had proved futile before dismissal was ordered.

• Jenkins v. Inocencio, 25-20326, appeal from S.D. Tex.
  • per curiam (Wiener, Haynes, Graves) (no oral argument), qualified immunity, excessive force
  • Reversing denial of qualified immunity for officer defendant in excessive force claim arising from fatal shooting.
  • At issue on appeal was whether a police officer was entitled to qualified immunity on a § 1983 excessive-force claim arising from the fatal shooting of an armed robbery suspect who was fleeing while holding a handgun and running toward officers. The court considered whether the officer’s use of deadly force was reasonable under the Fourth Amendment, applying the Graham v. Connor factors and relying heavily on body-worn-camera video that was part of the pleadings.
  • The court held that the officer was entitled to qualified immunity because the plaintiff failed to plausibly allege a constitutional violation. The body-cam video showed the suspect had just committed an armed robbery, ignored commands, held a gun throughout his flight, ran toward the officer and at least one other officer, and came within feet of the defendant officer—all within roughly 11 seconds. The court rejected the plaintiff’s argument that the suspect posed no threat because he never pointed his weapon, citing Fifth Circuit precedent that “a fleeing, armed suspect could turn a gun on [an officer] at a moment’s notice.”

• United States v. Cipkin, 25-30518, appeal from W.D. La.
  • per curiam (Jones, Duncan, Douglas) (no oral argument), criminal, sentencing
  • Affirming sentence.
  • At issue on appeal was whether the district court committed plain error by allowing defense counsel to withdraw objections to the presentence report—thereby conceding a guidelines range of life imprisonment—without ensuring the defendant understood the consequences.
  • Because the Fifth Circuit had not previously addressed the specific admonishment the defendant sought, the district court’s failure to give it was not plainly erroneous.

• Storey Mountain, L.L.C. v. JPMorgan Chase Bank, N.A., 24-20535, appeal from S.D. Tex.
  • per curiam (Wiener, Englehardt, Oldham) (oral argument withdrawn), garnishment, diversity jurisdiction
  • Affirming district court’s grant of a Rule 59(e) motion vacating its prior order that had allowed garnishment of a spendthrift trust account.
  • The central question on appeal was whether the trust created under the decedent’s will merged—i.e., whether the trustee was also the sole beneficiary—such that the spendthrift protection was defeated. A preliminary jurisdictional issue required remand for diversity-jurisdiction discovery after the LLC failed to properly plead complete diversity.
  • The court found no reversible error in the district court’s determination that the trust did not merge because Katherine’s children were additional contingent beneficiaries, and therefore the spendthrift trust remained valid and could not be garnished.

• United States v. Garcia-Zamora, 25-11307, appeal from N.D. Tex.
  • per curiam (King, Haynes, Ho) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• United States v. Nobbie, 25-40022, appeal from S.D. Tex.
  • per curiam (Richman, Southwick, Willett) (no oral argument), criminal, search and seizure
  • Affirming conviction, upholding denial of motion to suppress.
  • At issue on appeal was whether the district court should have suppressed evidence of three undocumented aliens found in the defendant’s car during a roving Border Patrol stop, on the ground that the agent lacked reasonable suspicion.
  • The court held that the totality of the circumstances supported the agent’s reasonable suspicion that the defendant was engaged in illegal conduct, and therefore the motion to suppress was properly denied.

• United States v. Ramos-Lerma, 25-40580, appeal from S.D. Tex.
  • per curiam (Stewart, Graves, Oldham) (no oral argument), criminal, guilty plea
  • Dismissing appeal from guilty-plea conviction of assaulting, resisting, or impeding federal officers, based on appeal-waiver in plea agreement.

• Hadnot v. Lufkin Independent School District, 25-40196, appeal from E.D. Tex.
  • per curiam (King, Higginson, Duncan) (oral argument withdrawn), § 1983, timeliness
  • Affirming dismissal of § 1983 claims as time-barred.
  • At issue on appeal was whether the district court erred in dismissing as time-barred a plaintiff’s § 1983 claims for First Amendment retaliation, Fourteenth Amendment due process and equal protection violations, conspiracy, and bill of attainder, all arising from a school district’s 2019 decision not to hire him. The plaintiff argued his claims did not accrue until 2023, when he allegedly first learned of the retaliatory motive behind the hiring decision. The court also addressed whether equitable tolling (fraudulent concealment and the discovery rule) or the continuing-violation doctrine saved the claims.
  • The court held the plaintiff’s claims accrued in 2019 under Texas’s two-year statute of limitations because he knew or should have known of his injury and a possible causal connection to his 2015 grievance filing at that time—he had already filed an EEOC charge and a state-court suit in 2019. Fraudulent concealment did not apply because no confidential or fiduciary relationship existed between the plaintiff and defendants. The discovery-rule argument was forfeited because the plaintiff never argued his injury was inherently undiscoverable. The continuing-violation doctrine did not apply because the failure to hire was a discrete act and the plaintiff did not allege the school district reopened the position or took any new adverse action in 2023.

• Cal-Tex Compression Services, L.L.C. v. LTM Consulting, L.L.C., 25-50854, appeal from W.D. Tex.
  • per curiam (Smith, Willett, Ramirez) (no oral argument), abstention, appellate jurisdiction
  • Dismissing for lack of appellate jurisdiction the grant of abstention under 28 U.S.C. § 1334(d).
  • At issue on appeal was whether the Fifth Circuit had appellate jurisdiction to review a district court’s order granting mandatory abstention under 28 U.S.C. § 1334(c)(2) and remanding a bankruptcy-related case to state court. The appellant attempted to recast its challenge as a due-process objection to allegedly defective service of the abstention motion, arguing the review bar of § 1334(d) did not apply.
  • The court held that § 1334(d) bars appellate review of a district court’s decision to abstain, whether under permissive § 1334(c)(1) or mandatory § 1334(c)(2), and that the narrow exception—permitting review only when a court refuses to abstain under § 1334(c)(2)—did not apply because the district court granted abstention. The court rejected the appellant’s attempt to “manufacture appellate jurisdiction by recasting an unreviewable abstention order as a due-process challenge,” warning that such an approach would render § 1334(d) a dead letter.