Take the Fifth

Designated for publication

• National Horsemen’s Benevolent & Protective Association v. Black, 23-10520, appeal from N.D. Tex.
  • Duncan, J. (King, Duncan, Engelhardt) (oral argument before original panel decision), nondelegation doctrine, appointments clause, due process, standing
  • On remand from the U.S. Supreme Court, for reconsideration of the panel’s original July 5, 2024, decision in light of FCC v. Consumers’ Research, reissuing the original panel decision, with a new section explaining how FCC does not change the court’s analysis of the private nondelegation doctrine; affirming in part and reversing in part district court’s judgment that the Horseracing Integrity and Safety Authority, a private corporation empowered by the Horseracing Integrity and Safety Act of 2020 to create and enforce nationwide rules for thoroughbred racing, survived constitutional challenges to its authority.
  • Congress enacted the Horseracing Integrity and Safety Act of 2020 (“HISA”), empowering a private nonprofit corporation—the Horseracing Integrity and Safety Authority (“Authority”)—to create and enforce nationwide rules for thoroughbred horseracing, subject to Federal Trade Commission (“FTC”) oversight. After the Fifth Circuit’s prior decision in Horsemen’s I struck down the Authority’s rulemaking power as an unconstitutional private delegation, Congress amended HISA to give the FTC power to “abrogate, add to, and modify” the Authority’s rules. The Supreme Court vacated the panel’s prior decision in Horsemen’s II and remanded for further consideration in light of FCC v. Consumers’ Research, 606 U.S. 656 (2025).
  • At issue on appeal were (1) whether Congress’s amendment cured the private nondelegation defect in the Authority’s rulemaking power; (2) whether the Authority’s enforcement powers separately violate the private nondelegation doctrine; (3) whether HISA violates due process by permitting self-interested industry participants to regulate competitors; (4) whether the Authority’s directors are subject to the Appointments Clause; and (5) whether HISA violates the Tenth Amendment’s anti-commandeering rule.
  • The court held that Congress’s amendment cured the nondelegation problem with the Authority’s rulemaking; HISA does not violate due process; the Authority is not a government entity subject to the Appointments Clause under Lebron; and Gulf Coast lacks standing on its anti-commandeering claim. However, the court declared that HISA’s enforcement provisions are facially unconstitutional because the Authority exercises quintessential executive power—investigating, subpoenaing, searching, sanctioning, and suing—without FTC supervision or approval.
  • On rulemaking, the court agreed with both the district court and the Sixth Circuit that the FTC’s new power to “abrogate, add to, and modify” the Authority’s rules makes the Authority’s rulemaking subordinate to the FTC—giving the amendment “new bite” because the FTC now has “ultimate say on what the rules are.” The court also concluded that Consumers’ Research did not alter the private nondelegation doctrine, which it described as “identical” to its own prior formulation: a private entity may wield government power “only if it functions subordinately to an agency with authority and surveillance over it.”
  • On enforcement, the court found that HISA’s “plain terms permit only one conclusion: HISA is enforced by a private entity, the Authority,” which “decides whether to investigate a covered entity,” “subpoena [its] records,” “sanction it,” and “sue the entity for an injunction”—all without the FTC’s involvement. The court rejected the argument that back-end FTC review of sanctions suffices, using a memorable analogy: “As far as enforcement goes, the horse was already out of the barn. (You knew that was coming.)” The court also parted ways with the Sixth Circuit’s Oklahoma I and Oklahoma II decisions, holding that the FTC’s general rulemaking power cannot “amend the plain division of enforcement power laid out in HISA’s text” because “even ‘statutory permission to modify does not authorize basic and fundamental changes in the scheme designed by Congress.'”
  • On the Appointments Clause, the court applied Lebron v. National Railroad Passenger Corp. and concluded the Authority is not a federal instrumentality because it was not created by special law, was not created to further governmental objectives, and the government does not control its operations or appoint its directors—distinguishing it from Amtrak in each respect. On due process, the court found that HISA’s conflict-of-interest provisions facially protect against self-dealing and that plaintiffs failed to adduce evidence of actual adverse financial interests at trial. On anti-commandeering, Gulf Coast lacked standing because “merely being subject to regulations, in the abstract, does not create an injury.”

Unpublished decisions

• United States v. Ignont, 25-30557, appeal from W.D. La.
  • per curiam (Jones, Duncan, Douglas) (no oral argument), criminal, sentencing
  • Affirming 360-month sentence for frug conspiracy and violation of firearms law.
  • On appeal were whether the district court adequately explained its sentence in light of the defendant’s arguments for a downward variance, and whether the within-guidelines sentence was substantively unreasonable.
  • Reviewing the forfeited sentencing-explanation claim for plain error, the court held Ignont failed to show an effect on his substantial rights. The court was also unpersuaded that the 360-month within-guidelines sentence (300 months for drug conspiracy plus 60 consecutive months for a firearm offense) constituted a clear error in judgment in balancing the sentencing factors.

• United States v. Abron, 25-10705, 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. Nichols, 25-11104, 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. Torres, 25-11355, appeal from N.D. Tex.
  • per curiam (Jones, Duncan, Douglas) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• United States v. Pena, 25-11218, appeal from N.D. Tex.
  • per curiam (Clement, Southwick, Oldham) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Tropskii v. Blanche, 24-60548, petition for review of BIA order
  • per curiam (King, Southwick, Haynes) (oral argument withdrawn), immigration
  • Denying Russian citizen’s petition for review of BIA order upholding denial of asylum, withholding of removal, and CAT protection.
  • At issue on petition was whether substantial evidence supported the agency’s denial of asylum, withholding of removal, and Convention Against Torture (CAT) protection to a Russian citizen who claimed fear of persecution based on his anti-government political activities and his refusal to comply with a military conscription notice.
  • Asylum (political activities): Substantial evidence supported the conclusion that Tropskii lacked an objectively reasonable fear of persecution. Key facts included that Russian authorities issued him a passport, he returned to Russia multiple times without incident, and there was no evidence authorities searched for him or contacted his family after his departure. The BIA correctly found his pattern-or-practice claim was forfeited for not being raised before the IJ.
  • Asylum (conscription): Under Milat v. Holder, punishment for evasion of generally applicable conscription laws does not itself constitute persecution on account of political opinion. Substantial evidence supported the agency’s finding that up to two years’ imprisonment was not disproportionately severe, and that Tropskii’s unequivocal refusal to serve meant he could not show he would be “required to engage in inhumane conduct” in military service.
  • Withholding of removal: Because the evidence did not compel a finding of a well-founded fear under the lower asylum standard, it necessarily could not meet the higher “clear probability” standard for withholding.
  • CAT: The agency permissibly found the prospect of torture speculative, given no past physical harm, generalized country-conditions evidence, and Tropskii’s repeated incident-free returns to Russia.

• United States v. Rodriguez, 25-40474, appeal from E.D. Tex.
  • per curiam (Wiener, Willett, Wilson) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• United States v. Builes-Molina, 25-20139, appeal from S.D. Tex.
  • per curiam (Wiener, Willett, Wilson) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Bondarev v. Blanche, 25-60380, petition for review of BIA order
  • per curiam (Wiener, Willett, Wilson) (no oral argument), immigration
  • Denying Russian citizen’s petition for review of BIA order denying relief.
  • At issue on appeal were whether substantial evidence supported the agency’s finding that a Russian citizen failed to show a nexus between his political opinion and the harm he suffered; and whether prior counsel’s citation errors before the BIA warranted relief.
  • The petitioner failed to demonstrate the evidence compelled a conclusion contrary to the agency’s no-nexus finding. The court also found no realistic possibility that the BIA would have reached a different result absent counsel’s citation errors.

• United States v. Aguilar Robles, 25-20541, appeal from S.D. Tex.
  • per curiam (Richman, Southwick, Willett) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• United States v. Salguero-Sanchez, 25-50577, appeal from W.D. Tex.
  • per curiam (Clement, Southwick, Oldham) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• United States v. Gomez, 25-50545, appeal from W.D. Tex.
  • per curiam (Richman, Southwick, Willett), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• United States v. Bustos, 25-50428, appeal from W.D. Tex.
  • per curiam (Wiener, Willett, Wilson) (no oral argument), criminal, forfeiture
  • Affirming dismissal of petition asserting interest in property subject to forfeiture.
  • At issue on appeal was whether the district court erred in dismissing a third-party petition under 21 U.S.C. § 853(n) asserting a bona fide purchaser interest in property subject to a criminal forfeiture order.
  • Reviewing de novo, the court held that Bustos’s petition failed to allege sufficient facts concerning the time and circumstances of her acquisition or that she was a bona fide purchaser for value, as required by § 853(n)(3) and (6)(B).

• United States v. Lopez Tinoco, 25-10837, appeal from N.D. Tex.
  • per curiam (Stewart, Graves, Oldham) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• United States v. Young, 25-10234, appeal from N.D. Tex.
  • Jones, J. (Davis, Jones, Stewart) (oral argument), criminal, sufficiency of evidence, venue, witness testimony, sentencing
  • Affirming conviction and sentence for conspiracy to commit health care fraud (18 U.S.C. § 1349) and three counts of making false statements relating to health care matters (18 U.S.C. § 1035(a)).
  • At issue on appeal were: (1) the sufficiency of the evidence for both the conspiracy and false-statement counts, (2) venue, (3) admission of testimony from other physicians about red flags of fraud, (4) refusal to give a multiple-conspiracies jury instruction, and (5) the loss amount used in sentencing.
  • Sufficiency — conspiracy: Ample circumstantial evidence supported the jury’s finding of an agreement and knowledge, including the extraordinary volume of prescriptions signed (making Dr. Young one of the top prescribers nationwide), sharing login credentials with non-medical staff who pre-filled prescriptions, contravention of standard medical practice, encouragement of Sunrise to expand into fraudulent genetic testing, large payments for minimal work, and continued participation despite red flags.
  • Sufficiency — false statements: The prescriptions themselves contained attestations that Dr. Young had discussed conditions and compliance with patients he admittedly never spoke with. The jury was entitled to reject Dr. Young’s claim that the software auto-generated the language.
  • Venue: Waived. Dr. Young knew the relevant facts before trial yet failed to raise a venue objection pretrial, at the close of evidence, or in his Rule 29 motion; merely proposing a jury instruction on venue does not preserve the issue.
  • Evidentiary objections: Testimony of Dr. Craig and Dr. Haas about red flags at Sunrise was permissible; even if erroneously admitted, any error was harmless given the substantial other evidence of guilt.
  • Multiple conspiracies instruction: No abuse of discretion. The jury could find a single conspiracy with a common goal of defrauding Medicare, with Dr. Young as the essential hub. Even if error, it was harmless because Dr. Young was the sole defendant.
  • Sentencing/loss amount: The district court did not clearly err in using the amounts billed to Medicare ($34.5M for DME, $37.2M for genetic tests) as the intended loss. A defendant’s personal unawareness of the billed amounts does not preclude attribution of reasonably foreseeable co-conspirator losses.

• United States v. Tardieff, 25-30609, appeal from M.D. La.
  • per curiam (Elrod, Smith, Stewart) (no oral argument), criminal, Second Amendment
  • Affirming conviction of possession of a firearm by a felon, rejecting Second Amendmen unconstitutionality arguments as foreclosed by circuit precedent (United States v. Schnur and United States v. Diaz).