Take the Fifth

Designated for publication

• AbbVie, Inc. v. Murrill, 24-30645, c/w 24-30651, c/w 24-30673, appeal from W.D. La.
  • Willett, J. (Higginson, Willett, Engelhardt) (oral argument at original panel stage), preemption, taking, Contracts Clause
  • Granting petition for panel rehearing and substituting for February 9, 2026, panel opinion, affirming summary judgment for Louisiana on pharmaceutical companies’ and trade group’s challenge to Louisiana statute on drug purchases.
  • Pharmaceutical manufacturers AbbVie, AstraZeneca, and trade association PhRMA challenged Louisiana Act 358, which prohibits manufacturers from interfering with covered entities’ use of contract pharmacies to dispense drugs purchased under the federal Section 340B Drug Pricing Program. The district court granted summary judgment to Louisiana on all claims.
  • At issue in the appeal was (1) whether Act 358 is preempted by federal law (field, conflict, or obstacle preemption); (2) whether it effects an unconstitutional taking (AbbVie); (3) whether it violates the Contracts Clause (AstraZeneca); and (4) whether it is unconstitutionally vague (PhRMA).
  • The court relied heavily on its recent decision in AbbVie, Inc. v. Fitch (involving Mississippi’s materially indistinguishable law), holding that § 340B is “silent” on the distribution of drugs through contract pharmacies, which is an area of traditional state police power. The court explained: “A State’s authority to regulate the distribution of drugs does not derive from § 340B, so the absence of agency authority under that statute neither confers nor withdraws it. To treat a federal agency’s want of statutory power as a ceiling on state power would invert the presumption against preemption.”
  • On the Takings Clause, the court held Act 358 imposes only “a negative obligation of non-interference” and does not compel new sales, following Fitch. On the Contracts Clause, it found no substantial impairment of AstraZeneca’s PPA because delivery logistics “were never part of the federal pricing agreements.” On vagueness, the court held “interfere” is given precise content by its neighboring words (“deny, restrict, prohibit”) under the canon noscitur a sociis.
  • The court noted the open question flagged by three Justices in Moyle v. United States (2024) regarding whether spending-power legislation “can preempt state law,” but observed that “the Spending Clause context here counsels greater caution before finding preemption, not less.”

• Ayestas v. Harris County District Attorney’s Office, 25-70014, appeal from S.D. Tex.
  • per curiam (en banc) (oral argument at original panel stage), Smith, J., dissenting from order for en banc rehearing; habeas corpus, en banc
  • Vacating March 9, 2026 panel opinion (Smith, Southwick, Ho), and ordering en banc rehearing that had vacated the district court’s order of discovery of thirty years of DA office’s charging documents in habeas petitioner’s selective-prosecution claim that DA factored his non-citizen status into its decision to seek the death penalty, and dismissing petitioner’s selective-prosecution claim for lack of jurisdiction.
  • Capital murder case more than 31 years old. A panel opinion (169 F.4th 586) had resolved a dispute over a discovery order issued to a non-party (Harris County DA’s Office) in collateral proceedings, vacating the errant discovery order and dismissing claims of selective prosecution. The en banc court voted to rehear the case.
  • In an unusual dissent from an order granting en banc rehearing, Judge Smith contended that the case did not merit en banc resources, calling it “a routine non-party discovery order, with minimal practical or jurisprudential impact.” He warned that resolving the case on narrower jurisdictional grounds (Rule 72 or collateral order) without addressing § 2244(b) would allow the district court to “proceed without jurisdiction” on remand. He closed: “We are in our fourth decade of delaying, and thus denying, justice for Santiaga Paneque.”

• Barrier v. United States, 25-50675, appeal from W.D. Tex.
  • Graves, J. (Southwick, Graves, Wilson) (oral argument), Federal Tort Claims Act
  • Reversing summary judgment for Border Patrol officer defendant in FTCA claim, and remanding for further proceedings.
  • CBP Agent Robert Duran, a full-time union officer, struck Tami Barrier with his truck while exiting a Border Patrol station en route to receive donated pandemic supplies at the union hall on behalf of a colleague. The government argued Duran was off-duty and acting outside the scope of employment.
  • At issue on appeal was whether Duran was acting within the course and scope of his employment under Texas law (specifically the “special mission” exception to the coming-and-going rule) for purposes of FTCA vicarious liability.
  • Material fact disputes existed regarding whether Duran was still on duty (his timesheet said 3:30 p.m. but video showed him leaving at 3:58 p.m.) and whether he was already heading to the union hall when he struck Barrier. The court found the supplies were destined for distribution to other CBP stations, distinguishing purely personal errands.
  • The court rejected the government’s argument that union duties are categorically outside course-and-scope analysis, noting that “holding that Duran—a full-time union officer—was not in the course and scope of his employment when performing union work would place him out of scope for 80% of his workday. Surely, that cannot be.”

• Dilworth v. Tucker, 25-60414, appeal from N.D. Miss.
  • Ramirez, J. (Elrod, Ho, Ramirez) (no oral argument), qualified immunity
  • Affirming qualified immunity dismissal of plaintiff’s false arrest and excessive force claims.
  • Officer Tucker encountered Dilworth walking around a property Tucker believed belonged to someone else. When Dilworth ran away, Tucker tased and handcuffed him. Dilworth was the actual property owner but did not immediately say so. Dilworth sued under § 1983 for false arrest and excessive force.
  • At issue on appeal was whether Officer Tucker was entitled to qualified immunity—specifically, whether Dilworth identified clearly established law proscribing the officer’s conduct.
  • The Court held that Officer Tucker is entitled to qualified immunity because Dilworth failed to identify any controlling authority or consensus of cases clearly establishing that the officer’s conduct violated the Constitution under these circumstances.
  • On the false-arrest claim, Dilworth “raises no argument that Officer Tucker violated clearly established law by arresting him.” On excessive force, Dilworth cited only abstract propositions and distinguishable, unpublished cases that did not clearly establish the violative nature of the particular conduct at issue.

• United States v. Quintanilla, 25-20230, appeal from S.D. Tex.
  • Willett, J. (Smith, Willett, Ramirez) (oral argument), criminal, guilty plea
  • Affirming guilty-plea conviction of transporting child pornography and 240 months’ imprisonment sentence (the statutory maximum), a lifetime of supervised release, and $17,500 in restitution. The defendant’s plea agreement contained a broad appellate waiver preserving only ineffective-assistance claims.
  • At issue on appeal was (1) whether the district court’s generic advisement about appellate rights undermined the waiver; and (2) whether the restitution award lacked the required Paroline causation analysis.
  • The Court held that the appellate waiver is enforceable and bars challenges to imprisonment and supervised release. The restitution challenge also fails because the court conducted the required causation inquiry.
  • The Court held the district court’s statement that “under some circumstances” Quintanilla “may have the right to appeal” was not a “categorical assurance of appellate rights” but an accurate recognition that the plea left some avenues open. On restitution, the court found that the modest $17,500 combined award (about 0.3% of victims’ reported losses) reflected a completed Paroline inquiry, not a failure to conduct one.

• United States v. Kendall, 24-40727, appeal from S.D. Tex.
  • Southwick, J. (Southwick, Higginson, Douglas) (oral argument), criminal, supervised release
  • Vacating in part sentence on revocation of supervised release, and dismissing appeal in part.
  • Kendall pleaded guilty to felon-in-possession and was sentenced to imprisonment plus supervised release. His first release was revoked, and the written revocation judgment imposed conditions—including home detention—that were not orally pronounced at sentencing. Kendall’s second release was revoked for violating those very conditions.
  • At issue on appeal was (1) whether the appeal from the first revocation is moot given the second revocation; (2) whether conditions not orally pronounced were validly imposed under Diggles.
  • The court held that the appeal is not moot as to conditions that formed the basis for the second revocation. The home detention condition and Standard Condition 13 were not properly pronounced and must be stricken.
  • The court held that home detention “is not a natural follow-on to a location monitoring requirement, such that pronouncement of the latter would alert an attorney and defendant to the former. Nor can the pronouncement requirement be elided by tucking several conditions into the one.” The record did not show Kendall received or reviewed the appendix containing the conditions.

• Alta Power, L.L.C. v. General Electric International, Inc., 25-10774, appeal from N.D. Tex.
  • Engelhardt, J. (Clement, Southwick, Engelhardt) (oral argument), fraud, breach of contract, torts
  • Affirming summary judgment for defendant in business torts claim.
  • Alta Power contracted with WattStock to purchase refurbished turbines. The Master Agreement included a mutual waiver of consequential damages covering the parties and their “subcontractors.” GE later became a WattStock subcontractor. When the deal collapsed, Alta sued GE for fraud and other torts. GE invoked the waiver.
  • At issue on appeal was (1) whether GE is an intended third-party beneficiary of the waiver; (2) whether GE’s alleged fraud renders the waiver unenforceable under Bombardier; and (3) whether the waiver applies to intentional torts.
  • The court held that, under Texas law, GE is a third-party beneficiary, fraud does not vitiate the waiver, and the waiver’s “any cause of action” language encompasses intentional torts.
  • The court rejected Alta’s “implied capacity restriction” that GE must have been a subcontractor at the time of the wrongdoing, holding: “Courts must not ‘rewrite agreements to insert provisions parties could have included or to imply restraints for which they have not bargained.'” On fraud, the court applied Bombardier and held that because the waiver did not eliminate all fraud claims—only one measure of damages—it remained enforceable between sophisticated, represented parties.
  • The waiver’s list of causes of action (“negligence, strict liability, breach of contract”) was “illustrative, not exclusive,” given the “any cause of action” preamble and the expansive meaning of “including” under Texas law.

• 20100 Eastex, L.L.C. v. Saltgrass, Inc., 25-20421, appeal from S.D. Tex.
  • Willett, J. (Richman, Southwick, Willett) (no oral argument), breach of contract, attorneys’ fees
  • Affirming summary judgment dismissal of breach of contract claim, dismissing plaintiff’s attorney-fee appeal, and remanding for determination of appellate attorneys’ fees.
  • Eastex purchased land encumbered by a Reciprocal Easement Agreement requiring written consent before construction on either parcel. Eastex’s lessee sought to demolish an existing restaurant and build a new one. Saltgrass refused consent. The Agreement was drafted and executed on behalf of both parties by the same Landry’s executive, Steven Scheinthal.
  • At issue on appeal was whether Section 3.3 of the Agreement requires consent for all new construction or only construction affecting shared easements; whether uncontroverted extrinsic evidence resolves the ambiguity as a matter of law.
  • The court held that although Section 3.3 is ambiguous, the drafter’s uncontroverted testimony resolved it: “No jury could improve upon the testimony of the man who wrote the contract and executed it for both parties.” Scheinthal testified “the whole purpose” was to give both entities the “business judgment to either allow” or prevent any demolition or construction on the other’s parcel.

• Center for Biological Diversity v. U.S. Department of Transportation, 25-60282, petition for review of order of Maritime Administration (MARAD)
  • Willett, J. (Smith, Willett, Ramirez) (oral argument), administrative law, NEPA, standing
  • Denying for lack of standing petitioner’s petition for review of approval of LNG export terminal.
  • MARAD approved a deepwater LNG-export port (Delfin LNG) in the Gulf of Mexico. Three environmental organizations petitioned for review, arguing MARAD violated the Deepwater Port Act, NEPA, and the APA by issuing the license without a supplemental EIS after project modifications.
  • At issue on appeal was whether petitioners have associational standing—specifically, whether any identified member has shown a concrete, particularized injury fairly traceable to MARAD’s licensing decision.
  • The court held that no identified member demonstrated a geographic nexus to the project or distinguished project-specific harm from general regional industrialization.
  • The court noted: “The Gulf’s size makes those details indispensable, not technicalities,” observing that it “covers about 600,000 square miles” and “contains more than 640 quadrillion gallons of water.” Every declarant either located activities too vaguely, failed to tie harms to this specific project, or offered only generalized environmental concern. “Concern, without injury, is not standing.”

• Sosnava Rodriguez v. Ortega (consolidated with Villegas Angel and Gomez Alvarado), 26-50183, 26-50219, 26-50221, appeal from W.D. Tex.
  • Southwick, J. (Southwick, Graves, Wilson) (oral argument); Graves, J., specially concurring; Wilson, J., dissenting; immigration, due process
  • Affirming that immigrants’ due process rights were violated by detention more than 90 days without bond hearings.
  • Three undocumented noncitizens—each residing in the U.S. for over a decade with no criminal history and with U.S.-citizen children—were detained under 8 U.S.C. § 1225(b)(2)(A) without bond hearings after the government reinterpreted the statute to require mandatory detention for all unadmitted aliens. District courts granted habeas relief.
  • At issue on appeal was (1) whether long-term resident aliens detained under § 1225(b)(2)(A) are entitled to due process protections; (2) whether the Due Process Clause requires an individualized bond hearing; and (3) if so, when.
  • The court held that the Due Process Clause requires bond hearings for aliens detained under § 1225(b)(2)(A) within 90 days of detention.
  • The majority distinguished DHS v. Thuraissigiam (involving an alien detained 25 yards into the U.S.) and held that physical “entry and residence, not legal admission, dictate the extent of the Constitution’s application.” The court found no categorical congressional justification—unlike the criminal-alien context of Demore—for mandatory detention of noncriminal, long-resident aliens without individualized process.
  • The court set a 90-day presumption: “We conclude that the Government may detain aliens under Section 1225(b)(2)(A) for ninety days but no longer without a bond hearing.” The court emphasized: “It is part of the historic majesty of this long-ago founding charter that it makes no exceptions in providing basic rights to those within our boundaries, including a right to be heard when personal liberty is taken.”
  • Judge Graves specially concurred. He would require hearings within 30 days, arguing that “90 days is an excessively long period of unexplained confinement” and that noncitizens arrested going forward should receive the pre-deprivation process previously available under § 1226(a). He wrote: “[N]o society is free where government makes one person’s liberty depend upon the arbitrary will of another.”
  • Judge Wilson dissented. He would vacate habeas relief, arguing that unadmitted aliens have “only those rights regarding admission that Congress has provided by statute” under Thuraissigiam; that individual dangerousness and flight risk are “irrelevant” to mandatory detention under § 1225(b)(2)(A); and that Congress had ample evidence supporting mandatory detention for illegal entrants. Judge Wilson charged the majority with “invent[ing] a nebulous rule that has no administrable limits” and “deputiz[ing] every district court in our circuit to refashion the removal process as it sees fit.”

• United States v. Theiler, et al., 24-40779, appeal from E.D. Tex.
  • Higginbotham, J. (Higginbotham, Smith, Oldham) (oral argument), criminal, sufficiency of evidence, jury instructions, grand jury proceedings
  • Affirming convictions of conspiring to pay physician kickbacks for patient referrals through Management Service Organizations (MSOs) tied to critical-access hospitals, generating millions in inflated Medicare reimbursements.
  • At issue on appeal was (1) sufficiency of evidence of knowing, willful participation in the kickback conspiracy; (2) sufficiency of evidence of federal nexus; (3) whether defendants withdrew from the conspiracy; (4) the district court’s handling of jury notes (including delayed disclosure of a note about a holdout juror); and (5) refusal of a good-faith jury instruction.
  • On sufficiency, the court found that Hertzberg’s “position of authority,” healthcare experience, awareness of explosive profits (a 30-bed rural hospital comprising a quarter of BHD’s projected national revenue), proximity to the scheme, and concealment efforts supported the jury’s verdict. Theiler’s direct management of the Texas sales team and close coordination with MSO marketers likewise supported a rational finding.
  • Regarding the jury notes, note #4 revealed juror #12 said his “‘moral compass’ would not allow him to be open minded” and he would “‘hang this jury.'” The court found no error in the district court’s decision not to separately respond, as doing so “could potentially confuse and disrupt the jury,” and the court’s prior instruction already directed the jury to deliberate in good faith while not surrendering their honest beliefs.
  • On the good-faith instruction, the court held the existing “knowingly” and “willfully” instructions “make plain that the jury was required to acquit [Hardaway] if, because of his good faith, he lacked specific intent.”

Unpublished decisions

• Tarver v. First Student, Inc., 25-50768, appeal from W.D. Tex.
  • per curiam (Davis, Jones, Ho) (no oral argument), employment discrimination, Title VII
  • Affirming dismissal of Title VII claims.
  • At issue on appeal was whether reporting workplace safety violations constitutes “protected activity” supporting a Title VII retaliation claim; effect of failing to object to a magistrate judge’s report and recommendation.
  • The court held that reporting unsafe bus-operating practices is not activity protected by Title VII, which prohibits retaliation only for opposing practices made unlawful by the statute (e.g., race or sex discrimination). The court further noted that Tarver forfeited appellate review by failing to engage with the district court’s reasoning on appeal.

• United States v. Roy, 25-30285, appeal from E.D. La.
  • per curiam (King, Haynes, Ho) (no oral argument), criminal, sentencing
  • Affirming sentence under “crime of violence” enhancement.
  • At issue on appeal was whether a prior Louisiana conviction for simple robbery qualifies as a “crime of violence” under U.S.S.G. § 4B1.1(a), specifically whether the statute encompasses merely reckless or negligent conduct.
  • Applying de novo review, the court concluded that Roy failed to demonstrate a “realistic probability” that Louisiana would apply its simple robbery statute to reckless or negligent acts, relying on United States v. Lanaute, 169 F.4th 641 (5th Cir. 2026), and United States v. Castillo-Rivera, 853 F.3d 218 (5th Cir. 2017) (en banc). The district court did not err in treating the conviction as a crime of violence under the force clause.

• United States v. Massey, 25-30492, appeal from E.D. La.
  • per curiam (King, Stewart, Ho) (no oral argument), criminal, sentencing
  • Vacating in part sentence, and remanding for revised written judgment regarding supervised release conditions.
  • At issue on appeal was whether discretionary standard conditions of supervised release included in a written judgment but not orally pronounced at sentencing must be stricken.
  • The Government conceded that the district court failed to orally pronounce standard conditions 2 through 9 and 11 through 13 at sentencing. Because the written judgment conflicted with the oral pronouncement, those conditions must be stricken, consistent with United States v. Alexander Martinez, 47 F.4th 364 (5th Cir. 2022). The judgment was otherwise affirmed.

• Reyna v. Nelson, 26-50004, appeal from W.D. Tex.
  • per curiam (Jones, Duncan, Douglas) (no oral argument), standing, election law, Americans with Disabilities Act, Equal Protection
  • Affirming lack of standing and dismissal of ADA and equal protection challenges to Texas ballot-qualification system.
  • At issue on appeal was (1) whether the plaintiff had Article III standing to challenge Texas’s ballot-qualification system under the ADA and the Equal Protection Clause when he did not allege he was initiating a political campaign; and (2) whether the district court abused its discretion by imposing a pre-filing bar.
  • On standing, the court found Reyna’s vague allegations of Hispanic or Native American descent and general barriers to ballot access insufficient absent any concrete intent to run for office. On the pre-filing bar, the court held that the district court did not abuse its discretion, noting Reyna had filed 13 suits since June 2025—many dismissed or recommended for dismissal as frivolous—and that explicit written findings on each Baum factor are not required.

• Ayres v. ChemJet International, Inc., 26-20032, appeal from S.D. Tex.
  • per curiam (Davis, Wilson, Douglas) (no oral argument), employment discrimination, Title VII
  • Affirming dismissal of employment discrimination claims.
  • At issue on appeal was (1) whether the plaintiff established a hostile work environment claim under Title VII where two of three alleged harassers were not employees of the defendant and the employer raised a Faragher/Ellerth affirmative defense as to the third; and (2) whether the plaintiff established a Title VII retaliation claim based on reporting a co-worker’s threat.
  • On the hostile work environment claim, the court agreed that Title VII imposes no obligation on employers to protect employees from harassment by non-employees outside the workplace. As to the supervisor’s conduct, ChemJet successfully established a Faragher/Ellerth defense because it maintained an anti-harassment policy and reporting procedure, and Ayres admittedly never reported the supervisor’s harassment through the available channels. On retaliation, the court found Ayres failed to establish protected activity, an adverse employment action supported by the record, or causation.

• Ellis v. Garza-Lopez, 26-10086, appeal from N.D. Tex.
  • per curiam (Jones, Duncan, Douglas) (no oral argument), qualified immunity
  • Affirming qualified immunity dismissal of due process claims.
  • At issue on appeal was whether the district court’s judgment granting summary judgment on qualified immunity grounds was “void” under Federal Rule of Civil Procedure 60(b)(4) for lack of jurisdiction or a due process violation depriving a party of notice or the opportunity to be heard.
  • The court found Ellis’s third appeal frivolous, noting he did not allege the district court lacked jurisdiction and offered only a conclusory claim that summary judgment without discovery violated due process. The court warned that future frivolous or abusive appeals may subject Ellis to monetary sanctions or restrictions on court access.

• United States v. Porter, 25-10900, appeal from N.D. Tex.
  • per curiam (Smith, Higginson, Wilson) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Reyna v. Spotify Technology, S.A., 25-50919, appeal from W.D. Tex.
  • per curiam (Smith, Haynes, Oldham) (no oral argument), jurisdiction, civil
  • Affirming dismissal for lack of subject-matter jurisdiction.

• Veals v. Hedgemon, 25-30687, appeal from W.D. La.
  • per curiam (Graves, Wilson, Ramirez) (no oral argument), prisoner suit, timeliness
  • Dismissing as frivolous appeal from dismissal of deliberate-indifference claim as time-barred under Louisiana law.

• United States v. Padilla-Perez, 25-51059, appeal from W.D. La.
  • per curiam (Davis, Wilson, Douglas) (no oral argument), criminal, supervised release
  • Affirming imposition of supervised-release condition allowing a probation officer to require a defendant to notify persons of a risk; rejecting argument that condition improperly delegates judicial authority as foreclosed by United States v. Mejia-Banegas, 32 F.4th 450 (5th Cir. 2022).

• United States v. Pena Penaloza, 25-10816, appeal from N.D. Tex.
  • per curiam (King, Stewart, Ho) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• United States v. Pride, 25-40759, appeal from E.D. Tex.
  • per curiam (Smith, Higginson, Wilson) (no oral argument), criminal, guilty plea
  • In a rare disposition, denying Anders motion to withdraw, and ordering filing of merits brief on whether an appeal waiver in a plea agreement forecloses challenge to a discretionary financial-disclosure condition of supervised release; and whether the Supreme Court’s recent decision in Hunter v. United States (2026) creates a miscarriage-of-justice exception that may permit appeal despite a valid waiver; and whether the financial-disclosure condition violates 18 U.S.C. § 3583(d) under United States v. Mendoza, 170 F.4th 921 (5th Cir. 2026).
  • The court found at least one nonfrivolous issue: the district court imposed a financial-disclosure condition without a restitution order, which is arguably impermissible under Mendoza. Coupled with the newly recognized miscarriage-of-justice exception from Hunter, the court concluded there is a nonfrivolous (if “somewhat strained”) argument that the appeal waiver does not bar this challenge. Counsel was ordered to file a merits brief within 30 days.

• Amador-Ardon v. Blanche, 25-60612, petition for review of BIA order
  • per curiam (Higginbotham, Engelhardt, Ramirez) (no oral argument), immigration
  • Denying petition for review of BIA order upholding the IJ’s denial of a motion to reopen and rescind an in absentia removal order under 8 U.S.C. § 1229a(b)(5)(C)(ii), where petitioner argued his failure to appear was due to state custody.
  • The court found the BIA made a factual—not legal—determination that Amador-Ardon failed to show his absence was through no fault of his own, given that he never provided his address to immigration authorities before being taken into state custody. The court also rejected arguments that the BIA engaged in impermissible factfinding.

• Ellsworth v. Marx, 25-40653, appeal from E.D. Tex.
  • per curiam (Stewart, Wilson, Douglas) (no oral argument), Bivens claim
  • Dismissing as frivolous appeal from dismissal of Bivens, FTCA, and 42 U.S.C. § 1985(3) claims against VA police officers and officials; whether res judicata barred the claims.
  • The court found that the Ellsworths mischaracterized the basis for dismissal (res judicata applied only to the FTCA claims, not their Bivens claim) and failed to meaningfully brief or challenge the district court’s actual reasoning for dismissing any of their claims, rendering all claims abandoned on appeal.

• Montero v. Commissioner of Internal Revenue , 26-60172, appeal from U.S. Tax Court
  • per curiam (Smith, Higginson, Wilson) (no oral argument), tax law
  • Affirming imposition of tax deficiency penalty.
  • The court noted that Montero’s arguments—that his salary is not taxable income—have been repeatedly rejected in his numerous prior appeals, remain without merit, and are frivolous. The Tax Court’s imposition of a § 6673(a) sanction was not an abuse of discretion given Montero’s persistent frivolous filings despite prior warnings and sanctions.

• Progressive Laboratories, Inc. v. Living Fuel, Inc., 25-10232, appeal from N.D. Tex.
  • per curiam (Southwick, Willett, Ho) (no oral argument), fraud, breach of contract
  • Affirming judgment for plaintiff and dismissal of counter-claim on fraud, breach of contract, and negligence claims.
  • At issue on appeal was (1) whether Living Fuel’s counterclaims for breach of contract and negligence were properly dismissed; (2) whether Living Fuel bore liability for paying an imposter due to a hacked email under Texas Business & Commerce Code § 3.404(d); and (3) whether the parties’ dealings constituted an installment contract entitling Progressive Laboratories to incidental damages
  • The court agreed that under § 3.404(d), Living Fuel was in the better position to prevent the fraud because the fraudulent email contained typographical errors, oddly phrased language, and suspicious new wiring instructions to a “hedge fund” bank account. The court also held that the separate purchase orders were distinct contracts—not an installment contract—because each referenced a definite quantity without contemplating future transactions, and course of dealing need not be considered where contractual language is unambiguous. Progressive Laboratories’ incidental-damages argument failed because the district court found no breach of the Super Berry contract.

• United States v. Juarez-Velasquez, 26-10111, appeal from N.D. Tex.
  • per curiam (Higginbotham, Engelhardt, Ramirez) (no oral argument), criminal, sentencing
  • Affirming enhanced sentence on conviction of illegal reentry.

• Murray v. LeBlanc, 25-30076, appeal from M.D. La.
  • per curiam (Elrod, Richman, Willett) (oral argument), qualified immunity
  • Dismissing appeal from qualified immunity dismissal of claims that DPSC officials (the former Secretary and Chief of Operations) violated pretrial detainees’ Fourteenth Amendment rights by permitting sentenced prisoners to be held alongside detainees at a parish jail without functional classification, investigation, or staff supervision.
  • Bound by Crittindon v. LeBlanc, 37 F.4th 177 (5th Cir. 2022), the court rejected LeBlanc and Smith’s sole argument that DPSC had no responsibility over pretrial detainees at parish jails housing DPSC prisoners. Under Crittindon, DPSC officials have at least some authority to control conditions at parish jails that house DPSC prisoners through the Basic Jail Guidelines and DPSC’s auditing power. However, the court lacked jurisdiction to resolve the genuine factual disputes the district court identified (e.g., level of DPSC-inmate involvement in assaults, classification compliance, adequacy of staffing) under Kinney v. Weaver. The court emphasized it did not decide that the defendants lack qualified immunity—only that their single legal argument fails.

• United States v. Hall, 25-11261, appeal from N.D. Tex.
  • per curiam (Stewart, Graves, Oldham) (no oral argument), criminal, Second Amendment
  • Affirming conviction of possession of a firearm by a felon, holding that the facial constitutional challenge is foreclosed by United States v. Diaz, 116 F.4th 458 (5th Cir. 2024), cert. denied, 145 S. Ct. 2822 (2025).

• Craig v. Hutto ISD, 25-50782, appeal from W.D. Tex.
  • per curiam (Higginbotham, Engelhardt, Ramirez) (no oral argument), Individuals with Disabilities in Education Act, Americans with Disabilities Act, sec. 1983
  • Affirming denial of preliminary injunction on IDEA, ADA, and other claims.
  • At issue on appeal was whether the district court abused its discretion in denying a pro se plaintiff’s motion for preliminary injunction and appointment of counsel in a case alleging violations of IDEA, ADA, the Rehabilitation Act, and § 1983 against a school district.
  • The denial of preliminary injunctive relief was affirmed; the remainder of the appeal was dismissed for lack of jurisdiction. The court held it lacked jurisdiction over the denial of appointment of counsel (a non-appealable interlocutory order) and over issues outside the notice of appeal or not yet ruled upon by the district court. On the merits of the injunction, the court agreed with the district court that appellant failed to show a substantial likelihood of success, noting that her complaint failed to comprehensively detail allegations and causes of action.

• Nazarkhudoev v. Blanche, 25-60573, petition for review of BIA order
  • per curiam (Jones, Duncan, Douglas) (no oral argument), immigration
  • Denying petition for review of BIA order upholding an adverse credibility finding where petitioner failed to disclose his arrest, detention, and beatings; affirming that petitioner failed to establish eligibility for asylum, withholding of removal, or CAT protection.
  • The court held that the petitioner’s explanations for failing to disclose key facts did not compel reversal under the substantial-evidence standard, and the discrepancy went to the heart of his claim. The adverse credibility finding was dispositive of his asylum and withholding claims. As to CAT relief, the petitioner forfeited review by failing to cite his country-conditions evidence or challenge the BIA’s finding that independent evidence did not establish a likelihood of torture.