Take the Fifth

Designated for publication

• Spectrum WT v. Wendler, 26-10127, appeal from N.D. Tex.; Texas A&M Queer Empowerment Council v. Mahomes, 25-20108, appeal from S.D. Tex.
  • per curiam (en banc), First Amendment, en banc
  • Ordering en banc hearing in the first instance, and consolidating for purposes of argument only, of two district court injunction decisions regarding the Texas A&M system’s dragshows policy–one from the Northern District of Texas (Spectrum WT) denying a preliminary injunction against a university ban of a student group’s drag show at West Texas A&M, and one from the Southern District of Texas (Texas A&M Queer Empowerment Council) granting a preliminary injunction against a university ban of a student group’s drag show at Texas A&M’s flagship university in College Station.

Unpublished decisions

• Merchant v. Merchant, 25-60197, appeal from S.D. Miss.
  • per curiam (Stewart, Graves, Oldham) (no oral argument), attorneys’ fees
  • Affirming in part and vacating in part award of attorneys’ fees in real estate dispute.
  • Frank and Dorothy Merchant deeded their farmland to Frank’s twin brother Billy to evade creditors, then sued when Billy refused to return it. They advanced inconsistent and false justifications, lied under oath, and refused to negotiate in good faith. After losing at a bench trial on unclean-hands grounds, the district court awarded Billy $172,118.75 in attorney fees.
  • At issue on appeal were (1) whether the district court abused its discretion in awarding attorney fees under the Mississippi Litigation Accountability Act (MLAA) after finding the plaintiffs’ lawsuit frivolous; (2) whether a lawsuit that survived summary judgment can still be deemed frivolous; and (3) whether appellate attorney fees were properly awarded when the prevailing party’s request was untimely under Federal Rule of Civil Procedure 54(d)(2)(B).
  • The court affirmed in part, holding that the district court did not abuse its discretion in finding the lawsuit frivolous and awarding fees—even though the case survived summary judgment—because the plaintiffs’ misrepresentations created the factual disputes that allowed them to survive that stage. However, the court vacated the $25,000 appellate-fee component because Billy’s first request for appellate fees came nearly a year after judgment, well beyond Rule 54’s 14-day deadline, and no court order varied that deadline.

• Nwachan v. Blanche, 25-60495, petition for review of BIA order
  • per curiam (Higginbotham, Engelhardt, Ramirez) (no oral argument), immigration
  • Denying Cameroonian citizen’s petition for review of BIA order affirming denial of asylum, withholding of removal, and CAT protection.
  • Ernestine Endam Nwachan, a Cameroonian national, sought asylum, withholding of removal, and CAT protection. The IJ denied relief, and the BIA dismissed her appeal, finding that she failed to provide reasonably available corroborating evidence. The BIA also upheld the denial of a continuance, finding Nwachan did not establish good cause.
  • At issue on the petition for review was whether the BIA erred in (1) affirming the denial of asylum, withholding of removal, and CAT protection based solely on lack of corroborating evidence without reaching credibility; and (2) affirming the IJ’s denial of a continuance to obtain additional corroborating evidence.
  • The court held that the BIA was not required to reach the credibility issue once it determined that lack of corroboration was both correct and dispositive. On the continuance, the BIA applied the correct de novo standard of review and rationally weighed the relevant factors—including Nwachan’s failure to gather evidence or document attempts to obtain it—so no abuse of discretion occurred. The court noted but did not resolve the open jurisdictional question of whether it may review continuance determinations in asylum proceedings under Ikome v. Bondi.

• United States v. Tepaz-Perez, 25-50927, appeal from W.D. Tex.
  • per curiam (Richman, Southwick, Willett) (no oral argument), criminal, sentencing
  • Affirming a 12-month revocation sentence for a supervised-release violation, ordered to run consecutively to a 21-month sentence for a new illegal-reentry offense.
  • The defendant failed to rebut the presumption of reasonableness that attaches to his within-guidelines revocation sentence or show that the district court committed a clear or obvious error.

• Joseph v. Vandergriff Chevrolet, 25-11388, appeal from N.D. Tex.
  • per curiam (Wiener, Willett, Wilson) (no oral argument), civil, amendment
  • Affirming dismissal of pro se breach of contract, Truth in Lending Act, and other claims, and denial of second motion to amend, and finding that arguments were forfeited through failure to adequately brief.

• Quesada-Ladron De Guevara v. Blanche, 25-60531, petition for review of BIA order
  • per curiam (Stewart, Graves, Oldham) (no oral argument), immigration
  • Denying Cuban citizen’s petition for review of BIA order denying motion to reopen immigration proceedings to rescind an in absentia removal order.
  • The petitioner forfeited review of the BIA’s dispositive finding that her motion to reopen was untimely by arguing only extraordinary circumstances and not addressing the timeliness requirement. Her due process claim was unexhausted, and in any event a denial of a motion to reopen does not implicate due process because it is purely discretionary. She also failed to demonstrate due diligence for equitable tolling: she had court contact information, knew she missed her hearing, yet waited more than two years to contact a lawyer and filed her motion five years after the 180-day limitations period expired.

• Thibodeaux v. Bernhard, 25-30420, appeal from W.D. La.
  • per curiam (Jones, Clement, Richman) (oral argument withdrawn), admiralty jurisdiction, trespass, Rule 60
  • Affirming denial of Rule 60(b)(1) motion filed by prevailing party that sought judgment on jurisdictional grounds rather than on the merits.
  • Fishermen sued landowners after being cited for trespassing while attempting to crawfish on Lost Lake. The district court found admiralty jurisdiction based on navigability, and the Fifth Circuit previously affirmed. On remand, the district court granted summary judgment for the landowners on the merits but declined to revisit the jurisdictional finding. The landowners then filed a Rule 60(b)(1) motion arguing the court erred by not reconsidering jurisdiction; it was summarily denied.
  • At issue on appeal was whether the district court abused its discretion in denying a Rule 60(b)(1) motion seeking to revisit the court’s earlier finding of admiralty jurisdiction over a tort dispute concerning Lost Lake, a small inland body of water in Louisiana’s Atchafalaya Basin that seasonally connects to the Atchafalaya River.
  • Applying the Seven Elves factors, the court found most weighed against relief: the Bernhards used Rule 60(b) as an improper substitute for appeal, filed after the appeal deadline expired, essentially repackaged arguments already rejected on the merits, and sought relief from a judgment they actually won—merely because it rested on grounds they disfavored. The court noted that Rule 60(b)(1) is not a vehicle to relitigate facts and arguments that could have been raised earlier.