Take the Fifth

Designated for publication

• Computer & Communications Industry Ass’n v. Paxton, 24-50721, c/w 25-50096, appeal from W.D. Tex.
  • Douglas, J. (Higginbotham, Ho, Douglas), Ho, J., dissenting in part (oral argument); standing, preemption, First Amendment
  • Affirming preliminary injunction of Texas social media regulation statute as to monitoring and filtering requirements as preempted by federal law; vacating injunction as sought by certain plaintiffs for lack of standing; and remanding for further proceedings.
  • Texas House Bill 18 (the “SCOPE Act”) regulates social media “digital service providers” (DSPs) by, among other things, requiring them to monitor and filter content deemed harmful to known minors, restricting targeted advertising to minors, barring ads promoting unlawful activities to minors, and imposing age-verification obligations for sites with predominantly obscene content. Two groups of plaintiffs challenged the law: (1) trade associations CCIA and NetChoice, whose members include Google, Meta, X, Snapchat, and Pinterest, and (2) the SEAT coalition of Texas students, individual Texans, and an advertising firm. The district court preliminarily enjoined several provisions, and Texas Attorney General Paxton appealed.
  • At issue on appeal was (1) whether the unregulated SEAT plaintiffs had Article III standing to bring a pre-enforcement challenge to a law that directly regulates third-party DSPs, not the plaintiffs themselves; (2) whether H.B. 18’s monitoring and filtering requirement is preempted by Section 230 of the Communications Decency Act, 47 U.S.C. § 230(c)(1); and (3) whether the age-verification requirement survived scrutiny after the Supreme Court’s decision in Free Speech Coalition v. Paxton, 606 U.S. 461 (2025).
  • Standing (SEAT plaintiffs): The court held that the SEAT plaintiffs’ theory of injury was “importantly novel” and ultimately too speculative. Because H.B. 18 directly regulates DSPs and not the plaintiffs themselves, the plaintiffs needed to show that the DSPs “will likely react in predictable ways” and suppress their specific speech, under Murthy v. Missouri, 603 U.S. 43, 70 (2024), and Department of Commerce v. New York, 588 U.S. 752, 768 (2019). The court found the plaintiffs’ fears—that platforms would over-filter content referencing statutory terms like “bullying” or “substance abuse”—amounted to a “subjective chill” rather than a substantial risk of imminent censorship. The best record evidence was a YouTube executive’s statement that YouTube “may need” to over-filter, which “says little about what YouTube will likely do.” The court also distinguished Bantam Books (an already-operating censorship campaign) and Book People (which directly compelled the plaintiffs’ own conduct).
  • Section 230 Preemption (CCIA plaintiffs): Applying the framework from Doe v. MySpace, Free Speech Coalition v. Paxton, and A.B. v. Salesforce, the court held the monitoring and filtering requirement is preempted because it imposes a duty that “‘would necessarily require an internet company to monitor[, alter, or remove] third-party content.'” Although the requirement is framed as an affirmative statutory obligation rather than tort liability for published content, the court concluded this was “not conclusive”—enforcement would “hold DSPs liable for their failure to adhere to state-set publication standards,” treating them “as publishers subject to sweeping state controls.” The court rejected the Attorney General’s argument that Moody v. NetChoice‘s recognition of platforms’ First Amendment editorial discretion narrows Section 230, stating it presents “a false choice”: “the First Amendment protects the DSPs’ editorial discretion from unconstitutional government regulation, and Section 230 protects those same decisions from civil liability based on third-party content.” Notably, the court acknowledged its holding “may raise the specter that Section 230 too often functions as a ‘get-out-of-jail free card,'” quoting Justice Thomas’s dissent from denial of certiorari in Snap, Inc.
  • Constitutional issues not reached: Because the preemption ground resolved the CCIA case, the court declined to address the First Amendment arguments. The SEAT plaintiffs’ age-verification challenge was foreclosed by the Supreme Court’s holding in Free Speech Coalition v. Paxton, 606 U.S. 461 (2025), that a materially similar requirement survives intermediate scrutiny.
  • Judge Ho concurred in vacating the SEAT injunction but dissented from the Section 230 preemption holding, arguing the court should have vacated the injunction in its entirety. His central argument: the SCOPE Act regulates curation—the platform’s own first-party speech—not the publication of third-party content, so Section 230 is not triggered. He relied on Moody v. NetChoice (“the larger offering is the platform’s”), the Third Circuit’s decision in Anderson v. TikTok, and the Fifth Circuit’s own A.B. v. Salesforce to argue that Section 230 applies “only to the publication of third-party content, and not to the curation of such content.” He quoted Justice Thomas’s warning that platforms deploy the curation/publication distinction “inconsistently—and self-servingly—in an effort to turn § 230 into ‘a get-out-of-jail free card'” and urged the court to consider “if this state of affairs is what § 230 demands.” He would also have certified the First Amendment questions regarding the SCOPE Act to the Supreme Court of Texas.

• MIECO, L.L.C. v. Targa Gas Marketing, L.L.C., 23-20567, appeal from S.D. Tex.
  • per curiam (Elrod, Higginbotham, Southwick) (oral argument); breach of contract, certification
  • Granting panel rehearing, withdrawing prior opinion (MIECO v. Targa, 161 F.4th 828 (5th Cir. 2025)), denying en banc rehearing, and certifying two questions to the Supreme Court of Texas.
  • MIECO and Targa are natural gas buyers and sellers who operated under the widely used North American Energy Standards Board (NAESB) form contract. Under two transaction confirmations, Targa was required to deliver 45,000 MMBtu of gas per day to a pool in northeastern Kansas, partially at a fixed “First-of-Month” price and partially at a variable Gas Daily spot price. During Winter Storm Uri in February 2021—which caused a 21% nationwide drop in gas production—Targa delivered only a fraction of the contracted volume over six days and invoked force majeure. MIECO rejected the force majeure claim. The district court granted Targa partial summary judgment, holding that Uri was a force majeure event and that Targa was not required to purchase replacement gas on the spot market. In its now-withdrawn panel opinion, the Fifth Circuit reversed, holding that Targa’s “gas supply” included the spot market from which it had been purchasing roughly 29% of its contract needs before the storm, and that Targa was required to continue purchasing from that market during the force majeure event.
  • Under Texas contract interpretation principles, does the NAESB form contract’s force majeure provision require a non-producer natural gas seller to continue purchasing on the spot market during a force majeure event when it had been using that market before the event? If so, how should “reasonable efforts” to provide gas from the spot market be defined?
  • The court acknowledged this is a case of “exceptional importance to the Texas natural gas industry” involving a standard form contract that, as Targa itself argues, “governs the entire natural gas industry in Texas.” The issues are governed by state law and “are not clearly resolved by the authorities on which the court relied.”
  • Three of four certification factors supported the decision: (1) the court considers the issue close, (2) there are insufficient state-law authorities, and (3) the answer is of “importance to a significant Texas industry and to those who rely on it.” On the fourth factor—delay—the court acknowledged the timeline is “extensive already,” but concluded that “getting the answer right is critical.”
  • The two certified questions ask: (1) whether the NAESB form contract’s force majeure provisions require a non-producer gas seller to enter the spot market during a force majeure event if it had been using that market before the event, and (2) if so, how “reasonable efforts” to provide gas from the spot market should be defined. The court specified that its “framing of these certified questions should not be construed as limiting the form or scope of the response by the Court.”

Unpublished decisions

• United States v. Bailey, 25-30407, appeal from E.D. La.
  • per curiam (Wiener, Stewart, Richman) (no oral argument), criminal, forfeiture
  • Affirming forfeiture aspect of sentence for conspiracy to distribute heroin.
  • At issue on appeal was whether the district court erred by including six pieces of jewelry valued at $40,000 in a preliminary forfeiture order following Bailey’s guilty plea to conspiracy to distribute heroin.
  • The court declined to address the appeal waiver and found no reversible error. Bailey’s signed plea agreement knowingly and voluntarily agreed to forfeit property specified in any bill of particulars and confessed the required nexus to the offense. The only rebuttal evidence—a pro se letter—was received 17 days after the order issued and thus was not considered. Defense counsel’s objections at rearraignment were not substantive.

• United States v. Hernandez; Cooper Zelaya, 25-30304, appeal from E.D. La.
  • per curiam (Haynes, Graves, Ramirez) (no oral argument), criminal, sufficiency of evidence, evidence, sentencing
  • Affirming conviction and sentence for conspiracy to bring unauthorized aliens to the United States for financial gain and for attempt to do so.
  • At issue on appeal was (1) sufficiency of the evidence to convict both defendants of conspiring to bring unauthorized aliens to the United States for financial gain and of attempting to do so; (2) admissibility of a cellphone screenshot exhibit (Jackson Hernandez); and (3) denial of a minimal-participant sentencing adjustment (Cooper Zelaya).
  • Under highly deferential sufficiency review, the evidence proved the financial-purpose element and Jackson Hernandez’s knowledge of and participation in the conspiracy. The challenged exhibit was not devoid of probative value and was properly admitted. The district court’s finding that Cooper Zelaya did not qualify as a minimal participant under U.S.S.G. § 3B1.2(a) was not clearly erroneous.

• Velasco v. Killeen Independent School District, 25-50935, appeal from W.D. Tex.
  • per curiam (Higginbotham, Engelhardt, Ramirez) (no oral argument), IFP, appellate jurisdiction
  • Affirming denial of IFP status, and dismissing appeal of other issues as premature.
  • At issue on appeal was (1) whether the district court abused its discretion in denying Velasco’s motion to proceed in forma pauperis (IFP) in her employment discrimination and retaliation suit; and (2) whether the court had appellate jurisdiction over Velasco’s premature appeal of the subsequent dismissal for failure to pay the filing fee and her post-judgment motion to reinstate.
  • The court affirmed the denial of IFP status—finding no abuse of discretion where Velasco’s gross monthly income exceeded her expenses by approximately $1,200—and dismissed the remainder of the appeal for lack of jurisdiction. The notice of appeal regarding the dismissal was premature because, at the time it was filed, no final judgment had been entered and the district court’s order requiring payment could not have been immediately followed by a final judgment. The court also lacked jurisdiction over the denial of the post-judgment motion to reinstate because Velasco never amended her notice of appeal to include that order.

• United States v. Braziel, 25-30756, appeal from W.D. La.
  • per curiam (Wiener, Stewart, Richman) (no oral argument), criminal, sentencing
  • Affirming sentence on conviction of conspiracy to commit wire fraud.
  • At issue on appeal was whether the district court clearly erred in imposing a two-level sentencing enhancement under U.S.S.G. § 2B1.1(b)(10)(C) for use of “sophisticated means” in connection with a conspiracy to commit wire fraud, where Braziel argued another individual orchestrated the scheme.
  • The district court’s finding was plausible in view of the record: after Braziel’s EIDL application for a fraudulent business was denied, he submitted fraudulent tax records, fictitious business documents, and fraudulent bank account records with a PPP loan application. The court could infer that these additional documents were intended to make the business appear legitimate and the fraud more difficult to detect—hallmarks of sophisticated means under circuit precedent.

• United States v. Makani, 25-40495, appeal from E.D. Tex.
  • per curiam (Wiener, Stewart, Richman) (no oral argument), criminal, guilty plea
  • Affirming guilty-plea conviction of laundering money instruments.
  • At issue on appeal was whether Makani’s guilty plea to laundering monetary instruments was knowing and voluntary, given his claim that a new page was added to the written factual basis months after the plea was taken.
  • Reviewing for plain error because the issue was not raised below, the court found that the plea-hearing record showed Makani signed and agreed to the seven-page factual basis; the copy initially filed with the court had merely omitted page three. There was “no error, much less plain error.”

• United States v. Salmeron, 25-40797, appeal from S.D. Tex.
  • per curiam (Richman, Southwick, Willett) (no oral argument), criminal
  • Reversing dismissal of indictment for illegal reentry.
  • At issue on appeal was whether the district court properly dismissed an illegal-reentry indictment after granting the defendant’s collateral attack on the underlying removal order under 8 U.S.C. § 1326(d)—specifically, whether Salmeron exhausted available administrative remedies (step one of § 1326(d)).
  • The court held that Salmeron failed to satisfy the exhaustion requirement because a motion to reopen remained available to him. His original in absentia removal order could be challenged for insufficient notice “at any time” under 8 U.S.C. § 1229a(b)(5)(C)(ii) and 8 C.F.R. § 1003.23(b)(4)(ii), both before and after his physical removal. The district court erred by relying on the general post-departure bar without accounting for the specific rule governing in absentia orders. Salmeron knew of the order weeks before deportation, considered hiring an attorney, yet did not file a motion to reopen.

• United States v. Gonzalez-Pena, 25-50985, appeal from W.D. Tex.
  • per curiam (Wiener, Stewart, Richman) (no oral argument), criminal, sentencing
  • Affirming enhanced sentence on conviction of illegal reentry, finding defendant’s argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998), which persists as a narrow exception permitting judges to find only the fact of a prior conviction.

• United States v. Talbot, 25-30078, appeal from E.D. La.
  • per curiam (Richman, Duncan, Oldham) (oral argument), criminal, competency, sufficiency of evidence, evidence, jury instructions, prosecutorial misconduct
  • Affirming convictions.
  • A physician convicted on seven counts related to prescribing controlled substances without a legitimate medical purpose raised multiple challenges: (1) competency to stand trial; (2) whether 21 U.S.C. § 856(a)(1) (drug-involved premises) applies to a practitioner’s prescribing conduct; (3) sufficiency of the evidence across all counts, including under Ruan v. United States; and (4) alleged trial errors involving other-act evidence, jury instructions, and prosecutorial misconduct during closing.
  • Competency: The district court’s finding that Talbot’s dementia symptoms were the result of malingering was not clearly arbitrary or unwarranted, supported by expert findings that his cognitive-test performance was atypical of genuine dementia, that memory loss was most pronounced regarding the charges, and that his physical activity level was inconsistent with severe dementia. Denial of a third competency hearing was not an abuse of discretion.
  • Section 856(a)(1): Circuit precedent forecloses Talbot’s argument that the statute cannot reach a physician’s prescribing. When a practitioner issues prescriptions outside the usual course of professional practice and without a legitimate medical purpose, those prescriptions fall outside the statutory definition of “dispensing” and constitute “distributing” under the Controlled Substances Act.
  • Sufficiency: Ample evidence supported the jury’s verdict on all counts—including over 14,000 prescriptions written while Talbot worked full-time hours away from his clinic, testimony about pre-signed prescriptions, staff concerns, dosages that were “too high,” and post-investigation alteration of patient records to simulate in-person visits. The Ruan knowledge requirement was met through circumstantial evidence.
  • Trial errors: Admission of VA investigation evidence was proper under Rule 404(b) to show knowledge and modus operandi. Jury instructions tracked Ruan‘s requirements. The prosecutor’s closing remarks were permissible comments on the evidence and did not impugn defense counsel’s character