June 23, 2026, opinions

Posted on by tadbartlett

Designated for publication

  • Brenyah v. Columbia Hospital Corporation of Bay Area, 25-40200, appeal from S.D. Tex.
    • Elrod, C.J. (Elrod, Richman, Willett) (oral argument), Title VII, employment discrimination
    • Affirming summary judgment dismissal of race/national-origin discrimination and retaliation claims; ADA disability-discrimination, interference, and failure-to-accommodate claims; but reversing summary judgment dismissal of hostile-work-environment claims; and remanding for further proceedings.
    • Brenda Brenyah, a Black woman and naturalized U.S. citizen born in Ghana, worked as a registered nurse at Corpus Christi Medical Center’s Bay Area Hospital. She alleged that Hispanic nurses frequently mocked her African food and accent, made derogatory comments about Black employees, and expressed preferences for Filipino employees — sometimes nearly every shift. She reported the conduct to supervisors, who she alleged conducted an unsatisfactory investigation, allowed the behavior to continue, and then retaliated against her by extending her probation and issuing disciplinary actions. After a car accident during Hurricane Harvey, Brenyah went on medical leave and later resigned, claiming constructive discharge.
    • At issue on appeal was whether the district court properly granted summary judgment on Brenyah’s Title VII and § 1981 race/national-origin discrimination, hostile-work-environment, and retaliation claims; ADA disability-discrimination, interference, and failure-to-accommodate claims; and related evidentiary rulings.
    • Discrimination and retaliation claims: Brenyah’s only viable adverse employment action was the extension of her probation, which exposed her to at-will termination and affected seniority accrual. However, she failed to show pretext: CCMC produced evidence of her documented time-management problems (extending shifts by an hour on 44 of 55 shifts), and Brenyah’s proposed comparators extended their shifts far less frequently. Her retaliation claim also failed because she offered “no evidence creating a genuine dispute of material fact that, but for her complaints . . . her probation would not have been extended.”
    • ADA claims fail on timing and other grounds: The ADA discrimination claim failed because the probation extension predated her disability. The failure-to-accommodate claim failed because Brenyah never clearly indicated she needed accommodations upon returning to work, and her own doctor’s records suggested her restrictions ended by January 7, 2018.
    • Hostile-work-environment claims survive: Brenyah presented evidence of frequent harassment — “almost every shift” — including mockery of food and accents, comments that Black employees “play the race card,” and second-hand evidence of racial slurs directed at co-worker Oscar Dike. She also showed a genuine dispute as to whether CCMC’s remedial response was adequate, pointing to discrepancies in the investigation, missing interview notes, statements that “the cliques were not going anywhere,” and evidence the harassment continued. The court noted that although CCMC did not “completely fail[] to act,” Brenyah “pointed to evidence that CCMC’s investigation was insufficiently prompt and thorough” and that its actions were not “‘reasonably calculated’ to end the harassment.”
  • Starbucks Corporation v. National Labor Relations Board, 24-60651, petition for enforcement of NLRB order
    • Smith, J. (Smith, Wiener, Higginson) (oral argument), labor law
    • Granting in part and denying in part enforcement of NLRB order arising from attempted unionization of Starbucks store.
    • In 2022, employees at a Starbucks store in Sylmar, California sought to unionize. Managers Tiffany Fuller and Jennifer Tayarah had multiple conversations with employees about unionization, including telling employees that benefits would be “put on pause” during the election process and that the union “wouldn’t change the world.” Fuller also asked employee Jason Untaran “how he felt about unionization” and subsequently Starbucks fired Untaran, citing workplace violations including vaping in the store and tardiness. A majority of employees voted against unionization; the union filed objections, and the NLRB found multiple § 8(a)(1) violations and one § 8(a)(3) unlawful discharge.
    • At issue on appeal was whether substantial evidence supported the Board’s findings of (1) coercive threats against four employees, (2) coercive interrogation of Untaran, (3) unlawful termination of Untaran for union activity, and (4) whether the court had jurisdiction over the Board’s order for a new election.
    • The court enforced the Board’s findings as to coercive threats against Ramirez and Untaran, one of the two coercive-threat findings against Pichardo, and the coercive-interrogation finding against Untaran. Enforcement was DENIED as to Untaran’s unlawful-discharge claim and the threat claims regarding Sosa and Pichardo’s “futility” theory. The appeal of the new-election order was DISMISSED for want of jurisdiction.
    • Threat findings are mixed: The Board’s conclusion that Fuller threatened Sosa was not supported by substantial evidence because neither the Board nor the ALJ established that the announced pay increase was part of an “established wage or compensation system” under Dothan Eagle. By contrast, Fuller’s statements to Ramirez and Untaran about benefits being withheld during negotiations were supported by substantial evidence because a reasonable employee could perceive them as threats of “punitive bargaining.” The “futility” finding regarding Pichardo failed under Brown & Root, which requires an accompanying threat that the employer “will take some action to render union support futile,” but Tayarah’s statement that “there are other jobs” was upheld as a threat of economic reprisal.
    • Unlawful discharge not supported: The court held that “timing alone . . . is not substantial evidence” of anti-union animus, quoting Arkema. The ALJ’s comparator analysis was “faulty” because the two cited comparators (AP and NQ) had meaningfully different conduct histories from Untaran, meaning the “only difference” between them and Untaran was not limited to the “illegitimate criterion of union activity.” Without viable comparators, “the only portion of the analysis that remains” was timing, which is legally insufficient standing alone.
    • No jurisdiction over election order: The court held it lacked jurisdiction to review the Board’s order for a second election under Great Western Coca-Cola Bottling Co., because representation proceedings consolidated with unfair-labor-practice cases do not constitute reviewable “final orders.” The court noted Starbucks could seek review “if a future order of the NLRB compels it to bargain after the second election.”
  • Sanchez v. Nunemaker, 25-50596, appeal from W.D. Tex.
    • Southwick, J. (Clement, Southwick, Engelhardt) (oral argument withdrawn), qualified immunity
    • Affirming denial of qualified immunity at motion-to-dismiss stage.
    • In June 2023, Medina County Deputy Sheriff Jonathan Bates Nunemaker stopped a vehicle reported stolen during an aggravated robbery. He handcuffed the 17-year-old driver, Branden Sanchez, and placed him in the back of his cruiser. Over the next 50 minutes, Sanchez repeatedly kicked the cruiser doors and yelled. Nunemaker then opened the opposite door and fired a high-velocity pepper-spray device (a “Centurion Law Enforcement Deployment System”) into Sanchez’s face from approximately 3.6 feet — roughly half the manufacturer’s stated minimum safe distance of seven feet — permanently blinding Sanchez in his left eye.
    • At issue on appeal was whether the district court properly denied Nunemaker’s motion to dismiss based on qualified immunity, specifically (1) whether the complaint stated a plausible Fourth Amendment excessive-force violation, and (2) whether the right was clearly established.
    • Constitutional violation sufficiently pled: Although the underlying crimes were severe (suspected armed robbery, stolen car with weapons), at the time of the pepper-spraying Sanchez “did not pose a threat to the safety of the officers or others.” The court emphasized that “[t]he physically slight seventeen-year-old was handcuffed, seat-belted in the cruiser, and surrounded by five officers.” His resistance consisted only of kicking doors and refusing to sit properly — not attempting to flee or harm anyone. Therefore, discharging “high-velocity pepper spray directly into Sanchez’s eye from half the manufacturer-provided minimum safe distance constituted excessive force.”
    • Clearly established under Ramirez v. Martinez: The court found that Ramirez v. Martinez, 716 F.3d 369 (5th Cir. 2013) — where an officer twice tased a suspect who was handcuffed, on the ground, and surrounded by officers — was sufficiently analogous to put a reasonable officer on notice that it is unlawful “to discharge pepper spray directly into the eye of a handcuffed, restrained, outnumbered suspect not posing an immediate threat or attempting to flee.” The court distinguished Brothers v. Zoss (suspect in an elevated truck who might access a weapon) and Baldwin v. Stalder (19 inmates threatening escape near an armory) as involving materially more dangerous situations with lower levels of force.

Unpublished decisions

  • United States v. Derrick Long, 25-30241, appeal from W.D. La.
    • per curiam (Stewart, Engelhardt, Douglas) (oral argument), criminal, Brady violation
    • Affirming conviction and rejecting Brady claim.
    • At issue on appeal were (1) whether the government violated Brady v. Maryland by failing to disclose that its confidential informant, Jerome White, had given false testimony in a separate federal case (United States v. Manning); and (2) whether the district court erred in denying the defendant’s motion for a new trial under Federal Rule of Criminal Procedure 33.
    • Although the suppressed Manning evidence was not merely cumulative of other impeachment evidence (because it implicated a distinct form of impeachment—character for untruthfulness), the court held it was not material because White’s testimony was strongly corroborated by testimony from co-defendants Ard and Wright, law enforcement witnesses, wiretap audio recordings, and video evidence. The court found no reasonable probability that the outcome would have been different had the evidence been disclosed, particularly given the breadth of corroborating evidence and the district court’s cautionary instruction regarding paid-informant testimony.
  • United States v. Jason Arriaga Diaz, 25-50967, appeal from W.D. Tex.
    • per curiam (Higginbotham, Engelhardt, Ramirez) (no oral argument), criminal, compassionate release
    • Affirming denial of motion for compassionate release, rejecting challenges that the court failed to address changes in the law regarding career offender status, failed to use individualized reasoning, and improperly denied relief without government briefing.
    • The court held that the district court’s balancing of the § 3553(a) factors was not an abuse of discretion. The court presumed the district court considered the arguments and documentary evidence presented in Diaz’s motion, and noted that the government was not required to file a response.
  • United States v. Amanda Louise White, 25-11373, appeal from N.D. Tex.
    • per curiam (Wiener, Willett, Wilson) (no oral argument), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • United States v. Michael Chase Watson, 25-40440, appeal from S.D. Tex.
    • per curiam (Davis, Wilson, Douglas) (no oral argument), Douglas, J., concurring; criminal, sentencing
    • Affirming sentence on conviction of possession of child pornography.
    • At issue on appeal was whether the district court erred by not expressly inquiring whether the defendant reviewed the presentence report and its appendix with counsel before sentencing, after Watson pleaded guilty to receipt and possession of child pornography.
    • The court held that the record supports that Watson had an opportunity to review the presentence report with counsel and a reasonable inference that he did so, consistent with United States v. Villafana-Mondragon.
    • Judge Douglas concurred in the judgment but wrote separately, stating that “for the same reasons espoused when I dissented in Villafana-Mondragon, the district court should have first confirmed that Watson reviewed the PSR.” She noted: “As our en banc precedent states, the district court should confirm the defendant reviewed the PSR before sentencing can proceed. United States v. Diggles, 957 F.3d 551, 560 (5th Cir. 2020) (en banc).”
  • United States v. Humberto Yosvany Arriola-Rivero, 25-50248, appeal from W.D. Tex.
    • per curiam (Stewart, Graves, Oldham) (no oral argument), criminal, sentencing
    • Affirming upward variance to 111 months (above a guidelines range of 30–37 months) for conspiracy to transport and harbor illegally present aliens, where the variance was partly based on the defendant’s sexual assault of a victim
    • Also at issue was whether the court erred in denying an evidentiary hearing; and whether the record should be expanded with newly discovered exculpatory DNA evidence.
    • The district court’s factual findings regarding the sexual assault were plausible and not clearly erroneous given the evidence (victim and witness statements plus a hospital discharge summary). The court declined to enlarge the record on appeal and noted that the proper vehicle for a collateral attack based on newly discovered evidence is a § 2255 motion.
  • Davis v. Faubion, 25-51024, appeal from W.D. Tex.
    • per curiam (Higginbotham, Engelhardt, Ramirez) (no oral argument), habeas corpus
    • Dismissing as moot appeal from sec. 2241 petition regarding pretrial detention.
    • Because Davis had already been convicted and sentenced to 155 months of imprisonment, his challenge regarding pretrial services was no longer a live controversy. His motion for appointment of counsel was also denied.
  • Comichi v. Pethel, 25-10954, appeal from N.D. Tex.
    • per curiam (Elrod, Higginbotham, Graves) (oral argument), qualified immunity
    • Affirming qualified-immunity dismissal of unlawful search claim and unlawful-seizure-of-truck claim; but reversing qualified-immunity dismissal of false-arrest claim and vacating dismissal of failure-to-intervene and malicious-prosecution claims.
    • At issue on appeal was whether police officers were entitled to qualified immunity on § 1983 claims arising from the arrest of a man who refused to identify himself after trying to prevent the towing of his nephew’s illegally parked rental truck. Claims included false arrest, unlawful search, unlawful seizure of the truck, failure to intervene, and malicious prosecution.
    • The court affirmed dismissal of the unlawful-search claim (the pat-down was reasonable under Terry given Comichi’s heated behavior) and the unlawful-seizure-of-the-truck claim (Comichi lacked Fourth Amendment standing because he failed to take normal precautions to maintain an expectation of privacy in the abandoned vehicle). The court reversed dismissal of the false-arrest claim against Officer Pethel, finding that bodycam footage, viewed in the light most favorable to the plaintiff, showed the officer arrested Comichi solely for refusing to identify himself—which cannot supply probable cause—and that his verbal noncompliance did not constitute Interference with Public Duties. The court vacated dismissal of the failure-to-intervene and malicious-prosecution claims and remanded for consideration on the merits.
  • United States v. Kelsey Dwayne Hunter, 25-10732, appeal from N.D. Tex.
    • per curiam (Richman, Southwick, Willett) (no oral argument), criminal, sentencing
    • Affirming sentence and conviction on firearms possession claims.
    • At issue on appeal were (1) whether the district court plainly erred in applying an enhanced base offense level of 20 under U.S.S.G. § 2K2.1(a)(4)(B) without proof of compatibility between a semiautomatic firearm and a large-capacity magazine; and (2) whether 18 U.S.C. § 922(g)(1) violates the Commerce Clause or the Second Amendment.
    • Although the enhanced base offense level was clear or obvious error under Luna-Gonzalez, Hunter failed to show the error affected his substantial rights because the district court indicated the sentence was appropriate regardless of the guidelines calculation and explained its reasoning under § 3553(a). The Commerce Clause and Second Amendment challenges were foreclosed by circuit precedent.
  • United States v. Roni Jardel Matute-Disqua, 25-50478, appeal from W.D. Tex.
    • per curiam (Higginbotham, Engelhardt, Ramirez) (no oral argument), criminal, sentencing
    • Affirming sentence on conviction of illegal reentry.
    • The two orally-pronounced supervised release conditions were not self-contradictory; they could be harmonized as directing the defendant to report to one probation office if surrendered to immigration officials and another if not. The defendant also failed to show clear or obvious error on plain error review.