Take the Fifth

Designated for publication

• Texas Tobacco Barn, L.L.C. v. United States Department of Health and Human Services, 25-60200, petition for review of order of DHHS
  • Duncan, J. (Jones, Duncan, Douglas), Douglas, J., dissenting (oral argument); administrative law, nondelegation doctrine, Seventh Amendment, major questions doctrine
  • Granting petition for review of HHS enforcement order imposing fine for selling of unauthorized vaping products, and vacting decision.
  • Texas Tobacco Barn (TTB), a Lubbock, Texas vape shop, applied for FDA premarket authorization for over 2,200 vape products, including e-liquids called “Barn Brewed Beetle Juice.” FDA denied authorization and warned TTB that continued sales would violate the Food, Drug, and Cosmetic Act (FDCA). After a May 2023 inspection revealed TTB was still selling the unauthorized product, FDA brought an HHS administrative proceeding and imposed a $19,192 civil penalty. TTB raised nondelegation and Seventh Amendment defenses, both of which the ALJ said she lacked jurisdiction to decide; the Departmental Appeals Board affirmed.
  • At issue on the petition for review were (1) whether Congress unconstitutionally delegated authority to FDA via the Tobacco Control Act’s “deeming provision”; (2) whether HHS’s juryless administrative adjudication of FDCA violations denied TTB its Seventh Amendment right to a jury trial; and (3) whether the penalty was supported by substantial evidence.
  • The court granted the petition and vacated the agency’s decision, holding that the HHS proceeding violated TTB’s Seventh Amendment right to a jury trial. The nondelegation challenge was rejected as foreclosed by circuit precedent. The substantial-evidence issue was not reached.
  • On nondelegation, the court held that TTB’s nondelegation challenge was squarely foreclosed by Big Time Vapes, Inc. v. FDA, 963 F.3d 436 (5th Cir. 2020), which upheld the same deeming provision. TTB’s attempt to repackage the argument under the “major questions doctrine” failed because Congress expressly granted FDA deeming authority—it did not exploit an ambiguous statute to seize new power. As the court noted in a recent companion case, TTB’s “argument is on all fours with Big Time Vapes, so it is foreclosed, in whatever wrapping it is packaged.”
  • Seventh Amendment — Implicated: HHS conceded, and the court confirmed, that the civil penalty implicates the Seventh Amendment because it is “the prototypical common law remedy”—punitive and deterrent, paid to the Treasury rather than victims, and calibrated by factors akin to culpability. The court also found that the cause of action is analogous to common-law trespass-on-the-case for selling “unwholesome provisions” and the common-law cheat action for misrepresenting a product’s quality, confirming the Amendment’s applicability.
  • Seventh Amendment — Public-Rights Exception Rejected: The court held that HHS failed to show FDCA enforcement actions fall within the narrow “public-rights” exception that permits agency adjudication without a jury. HHS could not demonstrate that adjudicating public-health violations “historically could have been determined exclusively by the executive and legislative branches.” HHS’s reliance on Crowell v. Benson‘s passing reference to “public health” was unavailing because Crowell itself concerned admiralty and its string cite was unelaborated dicta. The court emphasized: “Merely because an action ‘originate[s] in a newly fashioned regulatory scheme’ does not mean ‘Congress [can] siphon this action away from an Article III court.”. Accepting HHS’s logic would create an “automatic[]” public-rights exception “whenever Congress assigns a matter to an agency for adjudication.” The court distinguished FCC v. AT&T, 146 S. Ct. 1418 (2026), because the FCC statute gave AT&T the option of a trial de novo in district court, whereas here, if TTB fails to pay and DOJ sues, the “validity, amount, and appropriateness” of the penalty “shall not be subject to review.”
  • Judge Douglas dissented. She agreed on the nondelegation issue but dissented on the Seventh Amendment, arguing the public-rights exception does apply. She contended that the majority’s common-law analogies miss the mark because “TTB was not accused of selling an unwholesome product or misrepresenting anything about the product”—it was accused only of failing to obtain premarket authorization, conduct she characterized as having “no common law analogue.”
  • Applying the four-factor framework from Jarkesy and Intuit, Judge Douglas concluded that the FDCA’s premarket-authorization enforcement action more closely resembles the “self-consciously novel” statutory regime upheld in Atlas Roofing than the common-law-derived fraud claims at issue in Jarkesy. The dissent criticized the majority for omitting the limiting clause in Jarkesy‘s statement that “the Seventh Amendment does apply to novel statutory regimes, so long as the claims are akin to common law claims.”
  • Judge Douglas further contended that Supreme Court dicta should not be “so lightly dismiss[ed],” noting that Crowell clearly indicated Houston was what “we would now call a public rights case” involving public-health regulation. She also raised a structural point: if Congress could completely ban tobacco sales, it may a fortiori condition participation on prior approval and remove failure-to-authorize adjudications from Article III factfinding—a theory she described as fitting within a possible exception for licensing regimes.

Unpublished decisions

• United States v. Ramirez, 25-11289, appeal from N.D. Tex.
  • per curiam (Elrod, Higginson, Ramirez), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• United States v. Zertuche-Reyna, 25-11360, appeal from N.D. Tex.
  • per curiam (King, Haynes, Ho) (no oral argument), criminal, sentencing
  • Affirming sentence on conviction of illegal reentry.

• Washington v. City of Bossier, 25-30533, appeal from W.D. La.
  • per curiam (Davis, Jones, Ho) (no oral argument), sec. 1983, amendment, municipal liability
  • Affirming dismissal of § 1983 and wrongful-death complaint filed on behalf of plaintiff’s son, Antonio Saxton, who died by suicide while in custody at the Bossier City Jail, and denial of motion to amend.
  • Plaintiff abandoned challenges to dismissal of her Eighth Amendment, civil conspiracy, and unnamed-defendant claims. On the remaining Fourteenth Amendment due-process claim, the court found she failed to allege that officials acted with subjective deliberate indifference—there were no allegations that Saxton had prior suicidal ideation, documented mental illness, or that defendants were aware of a substantial suicide risk. The court also noted there is “no independent constitutional right to suicide screening.” State-law wrongful-death, survival, and negligence claims likewise failed for absence of foreseeability allegations, and the Monell municipal-liability claim was not adequately challenged on appeal.

• United States v. Guajardo, 25-11052, appeal from N.D. Tex.
  • per curiam (Elrod, Higginson, Ramirez) (no oral argument), criminal
  • Granting Anders motion for withdrawal, and dismissing appeal.

• United States v. Urdaneta-Colina, 25-11297, appeal from N.D. Tex.
  • per curiam (Smith, Higginson, Wilson) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• United States v. Salas-Romero, 25-51020, appeal from W.D. Tex.
  • per curiam (Elrod, Higginson, Ramirez) (no oral argument), criminal, sentencing
  • Affirming sentence on conviction of illegal reentry.

• United States v. Beltran-Nino, 25-50672, appeal from W.D. Tex.
  • per curiam (Smith, Higginson, Wilson) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Clofer v. Frenkel, 25-30401, c/w 25-30572, appeal from E.D. La.
  • per curiam (Jones, Duncan, Douglas) (no oral argument), sec. 1983
  • Affirming dismissal of § 1983 action against assistant district attorneys, who plaintiff alleged acted beyond the scope of their prosecutorial duties by suborning perjured testimony and presenting it to a grand jury to obtain an indictment. The court found Clofer failed to show error in the district court’s determination that absolute prosecutorial immunity barred his claims. All other claims were abandoned on appeal.

• United States v. Yuan, 26-20005, appeal from S.D. Tex.
  • per curiam (Elrod, Higginson, Ramirez) (no oral argument), criminal, pretrial detention
  • Affirming pretrial release order, but vacating portion of order that enjoined ICE from taking custody of defendant.
  • The United States appealed a pretrial release order concerning defendant Benlin Yuan. The court noted that the government improperly filed a “motion to vacate” the pretrial release order rather than a memorandum as required by Federal Rule of Appellate Procedure 9(a) and Fifth Circuit Rule 9.1, creating procedural confusion. The court explained that a motion to modify a release order is appropriate under Rule 9(b) (release pending appeal of a conviction) but not when appealing a pretrial release decision under Rule 9(a).
  • The district court’s pretrial release order was affirmed insofar as it ordered Yuan released pretrial with conditions. However, the portion of the district court’s order enjoining Immigration and Customs Enforcement from taking custody of Yuan was vacated. The government was reminded to style future pretrial-release appeals as memoranda, not motions.

• Luna v. Granadas, 25-40744, appeal from S.D. Tex.
  • per curiam (Davis, Jones, Ho) (no oral argument), prisoner suit
  • Dismissing appeal of dismissal of Texas state prisoner’s § 1983 action alleging deliberate indifference to his medical needs. After the district court dismissed the action with prejudice and a prior appeal was dismissed for want of prosecution, Luna moved to reopen more than a year later; the district court denied that motion. The court found that insofar as Luna sought to challenge the original dismissal, his notice of appeal was untimely. As to the denial of his motion to reopen, the notice of appeal failed to designate that ruling as the order being appealed, depriving the court of jurisdiction to review it.

• Carrasco-Aguilar v. Blanche, 25-60660, petition for review of BIA order
  • per curiam (Davis, Jones, Ho) (no oral argument), immigration
  • Denying Honduran citizen’s petition for review of BIA’s dismissal of her appeal challenging the Immigration Judge’s denial of her applications for asylum and withholding of removal.
  • The central question was whether Carrasco-Aguilar established past persecution based on her account of repeated armed robberies of cell-phone credits at her convenience store in Choluteca, Honduras, threats against her and her family, and an inadequate police response. The BIA found her experience was not sufficiently extreme to constitute past persecution. The court reviewed under the substantial-evidence standard and found the BIA’s conclusion supported, distinguishing the case from Tamara-Gomez v. Gonzales, 447 F.3d 343 (5th Cir. 2006), where the petitioner faced a sustained, organized campaign of intimidation, extortion, and murder by FARC. The court also noted that Carrasco-Aguilar did not dispute the BIA’s finding that she waived the issue of future persecution by failing to challenge the IJ’s ruling on the reasonableness of internal relocation. Her CAT claim was deemed forfeited.

• Apple Inc. v. Key Patent Innovations, Ltd., 25-40802, appeal from E.D. Tex.
  • per curiam (Richman, Engelhardt, Wilson) (oral argument), patent, discovery, international law
  • Affirming in part and reversing in part resolution of discovery dispute in international patent infringement claim.
  • This case concerns a discovery dispute under 28 U.S.C. § 1782. Malikie Innovations (successor to certain Blackberry patent rights) obtained a subpoena in the Eastern District of Texas compelling Blackberry to produce patent licensing agreements (the “A-B Agreements”) between Blackberry and Apple for use in foreign patent infringement litigation against Xiaomi in Germany and India. Apple intervened and sought either to quash the subpoena or to obtain a supplemental protective order restricting disclosure of the A-B Agreements to outside counsel only, consistent with the agreements’ own confidentiality provisions. The magistrate judge denied Apple’s requests, reasoning that under the “applicable law” of Germany and India, both outside and in-house counsel have a right to inspect documents, and therefore the A-B Agreements’ outside-counsel-only restriction must yield. The district court adopted the magistrate judge’s order under a clear-error standard.
  • On appeal, the Fifth Circuit addressed (1) whether the magistrate judge’s order was dispositive (warranting de novo review) or non-dispositive (warranting clear-error review), and (2) whether the district court erred by overriding the A-B Agreements’ confidentiality provisions. The court found it unnecessary to resolve the dispositive/non-dispositive debate because the result was the same under either standard. The court held that neither the Indian nor German courts had actually required disclosure to in-house counsel, and the expert declarations presented by Malikie fell short of showing that “applicable law” definitively overrode the A-B Agreements’ confidentiality protections. The court emphasized that given the uncertainty, the district court should have given force to the agreements’ “course of litigation” clause, which limits disclosure to outside counsel. The court also rejected Malikie’s argument that the magistrate judge’s own order constituted “applicable law” or an “order of a governmental authority of competent jurisdiction,” calling that reasoning circular.
  • The district court’s order was reversed to the extent it failed to limit disclosure of the A-B Agreements to outside counsel in the foreign proceedings; the order was otherwise affirmed. The court noted that if a foreign court were to later order disclosure to in-house counsel, Malikie could return to the district court to seek modification of the protective order.