Take the Fifth

Designated for publication

• Crane v. Penske Transportation Management, L.L.C., 25-40012, appeal from S.D. Tex.
  • Engelhardt, J. (Wiener, Engelhardt, Oldham) (oral argument withdrawn), personal tort, preemption
  • Reversing judgment for defendant on claims arising from fatal truck-auto accident in which one of defendant’s employee’s was the involved truck driver; and remanding for further proceedings.
  • Satnam Singh Lehal’s tractor-trailer jackknifed on the way to Laredo, Texas, crossed into oncoming traffic, and killed Lyndon Dean Meyer. Penske Logistics had been hired by Adient US to transport goods but outsourced the job through its affiliate broker, Penske Transportation Management (PTM), to Liberty Lane, which in turn hired a third carrier, OK Trans, that supplied the truck and driver Lehal. Meyer’s surviving child and parents sued Penske and PTM.
  • At issue on appeal was (1) whether Penske, as the original motor carrier, was Lehal’s “statutory employer” under federal trucking-lease regulations (49 C.F.R. §§ 376.11–12, 376.22) and thus vicariously liable for his negligence; and (2) whether the plaintiffs’ negligent-hiring claim against PTM was preempted by the Federal Aviation Administration Authorization Act (FAAAA).
  • Because Penske—a carrier—employed Liberty Lane—itself a carrier that leased the truck from OK Trans—their arrangement fell under 49 C.F.R. § 376.22, which required Penske to assume “control and responsibility for the operation of the equipment.” Under longstanding Fifth Circuit precedent, that assumption of control made Penske Lehal’s statutory employer “regardless of whether Penske and Liberty Lane complied with the formal regulatory requirements.”
  • On preemption, the Supreme Court’s intervening decision in Montgomery v. Caribe Transport II, LLC, 146 S. Ct. 1199 (2026), held that the FAAAA’s safety exception applies to negligent-hiring claims against brokers, abrogating the district court’s ruling. PTM urged affirmance on an alternative ground (no duty under Texas law), but because the district court never addressed that issue, the Fifth Circuit declined to reach it.

• Holloway v. Procter & Gamble Manufacturing Co., 25-30556, appeal from W.D. La.
  • per curiam (Elrod, Ho, Ramirez) (oral argument), Ho, J., concurring (joined by Elrod, C.J.); Title VII, employment discrimination
  • Affirming summary judgment dismissal of employment discrimination and whistleblower claims.
  • Brandon Holloway, a P&G employee since 2007, was terminated in December 2022. P&G cited repeated violations of its SAFE procurement policies and misuse of a corporate credit card for personal expenses (roughly $215). Holloway claimed he was fired in retaliation for reporting to a manager that P&G’s waste-manifest signing practices violated federal and state regulations and for raising a complaint of racial discrimination.
  • At issue on appeal is (1) Title VII racial discrimination under the McDonnell Douglas burden-shifting framework; (2) Title VII retaliation; and (3) Louisiana whistleblower statute, La. R.S. 23:967(a).
  • On discrimination, the court rejected Holloway’s invitation to abandon the McDonnell Douglas framework, noting the panel remains bound by the rule of orderliness. Holloway failed to show pretext; he admitted he had no “black and white evidence” of disparate treatment, stating: “Everything I have is based off of how I feel and off of how other people feel.”
  • On retaliation, Holloway relied primarily on temporal proximity between his complaints and his termination, but the court found this insufficient given that a second SAFE procurement violation was independently discovered shortly before his firing. On the whistleblower claim, Holloway failed to prove an actual violation of law—none of the cited statutes showed that having a different P&G employee sign transportation paperwork made the documents false.
  • Judge Ho wrote separately, joined by Chief Judge Elrod, to contend that the McDonnell Douglas framework “is wrong” and “in more ways than one.” Citing Justice Thomas’s concurrence in Ames v. Ohio Dep’t of Youth Services, 605 U.S. 303 (2025), Judge Ho contended that McDonnell Douglas “was made out of whole cloth” and “requires a plaintiff to prove too much at summary judgment” because it demands proof of a prima facie case by a preponderance of the evidence, whereas Rule 56 requires only a genuine dispute of material fact. He also noted that McDonnell Douglas‘s pretext requirement “demands more than the text of Title VII,” because under 42 U.S.C. § 2000e-2(m) a plaintiff can prevail by showing that a protected characteristic was “a motivating factor” even if other factors also motivated the decision. He concluded: “in an appropriate case, I would welcome the opportunity to revisit our precedent to better align the law of our circuit with the plain text of Title VII and Rule 56.”

• Saravia Martinez v. Blanche, 25-60400, petition for review of DHS order
  • per curiam (Haynes, Higginson, Ho) (oral argument), Ho, J., concurring; Higginson, J., dissenting; immigration, timeliness
  • Dismissing as untimely petition for review of Department of Homeland Security order reinstating prior removal order.
  • Claudia Marilyn Saravia Martinez, a Salvadoran national, was previously removed and then illegally reentered the United States; DHS reinstated her prior removal order. An asylum officer found she had a reasonable fear of persecution and torture in El Salvador because MS-13 gang members had raped her and threatened to kill her. She conceded her petition for review was untimely under 8 U.S.C. § 1252(b)(1)’s 30-day deadline but sought equitable tolling.
  • At issue on the petition was whether equitable tolling is available or appropriate under 8 U.S.C. § 1252(b)(1)’s 30-day filing deadline for petitions for review of removal orders, following Riley v. Bondi, 606 U.S. 259 (2025), which held the deadline is a non-jurisdictional claims-processing rule.
  • The court dismissed the petition as untimely; equitable tolling held “not appropriate in this case.”
  • Judge Ho concurred, writing extensively to contend that equitable tolling is never available under § 1252(b)(1). His reasoning rested on three pillars: (1) Federal Rule of Appellate Procedure 26(b) provides that courts “may not extend the time to file” a petition for review “unless specifically authorized by law,” and no law authorizes an extension here; (2) the text of § 1252(b)(1) uses the word “must,” indicating a mandatory deadline inconsistent with tolling, and Congress authorized extensions in a nearby provision (§ 1252(b)(3)(C)) but not in § 1252(b)(1), showing it “knows how to write such exceptions when it wants to”; and (3) Congress has repeatedly shortened filing deadlines in immigration law to combat delays, and nearly four million cases were pending as of mid-2025, making tolling “detrimental to the statutory scheme.” He quoted United States v. Brockamp: “The nature and potential magnitude of the administrative problem suggest that Congress decided to pay the price of occasional unfairness in individual cases . . . in order to maintain a more workable [immigration] system.”
  • Judge Higginson dissented, contending Riley left a class of people “in limbo”—those who had been ordered removed more than 30 days prior but were awaiting humanitarian proceedings that pre-Riley circuit precedent required them to exhaust first. He called Saravia Martinez “the poster child for equitable tolling”: she diligently filed her petition the month after Riley issued, and prior binding precedent had made it “impracticable . . . or impossible” for her to have filed earlier. Higginson noted that no post-Riley circuit court had yet held equitable tolling categorically unavailable under § 1252(b)(1), and he agreed with the Sixth and Seventh Circuits that it remains available. He warned starkly: “If the government returns Ms. Saravia Martinez to El Salvador, she stands to face the very harm—rape and death—that merited her positive reasonable fear determination.”

• Liedtke v. City of Austin, 25-50717, appeal from W.D. Tex.
  • Willett, J. (Willett, Engelhardt, Douglas) (oral argument withdrawn). Title VII, employment discrimination
  • Affirming summary judgment dismissal of hostile work environment claim; but reversing and remanding as to dismissal of sex discrimination and retaliation claims.
  • Former Austin Police Department Officer Samantha Liedtke, an “Honor Cadet” academy graduate, was recruited onto an all-male patrol shift because the team “needed a female officer.” She alleged near-daily sexist comments, including that female APD officers are “either a bitch or a slut,” that a colleague attributed her Honor Cadet award to her being a “pretty woman,” and that another officer questioned whether her birth control was impeding muscle growth. After a confrontation in which two male officers berated her—one suggesting they “drop belts” (remove gear and fight)—and an incident where they allegedly refused to provide backup on an active-shooter call, Liedtke complained to supervisors. Six days after she reported misconduct to Sergeant McBee, Officer Colaianni told McBee that male shiftmates feared Liedtke would file an EEOC or internal-affairs complaint, and immediately accused Liedtke of “officer safety issues.” The next day McBee issued an Employee Success Plan (ESP) that “essentially copied and pasted” the male officers’ allegations from text messages—an ESP McBee had never before issued or heard of based on months-old incidents already resolved by a prior supervisor. Liedtke resigned a few weeks later.
  • Issues on appeal included (1) hostile work environment under Title VII; (2) Title VII sex discrimination, including direct evidence of discriminatory animus and the “cat’s paw” theory of liability; (3) Title VII retaliation; and (4) whether the ESP and/or constructive discharge constituted adverse employment actions under the post-Hamilton v. Dallas County standard.
  • The hostile work environment claim was forfeited because Liedtke’s opening brief focused almost exclusively on retaliation and discrimination, mentioning hostile work environment only “in passing” without separate headings, legal standards, or authorities as required by Federal Rules of Appellate Procedure 28(a). The court emphasized that appellants “cannot conjure . . . a claim by bootstrapping unrelated arguments pertaining to elements of a different claim.”
  • On sex discrimination, the district court committed three errors: it considered only the McDonnell Douglas circumstantial-evidence framework though Liedtke also presented direct evidence; it misdefined “adverse employment action” as a legal question using First Amendment speech law rather than Title VII employment law; and it applied a pre-Hamilton narrow definition of adverse employment action. The court held that Liedtke’s record contained direct evidence of sex-based animus—comments at least “as probative as those in Price Waterhouse“—and raised genuine fact disputes on the cat’s paw theory, since McBee “largely copied and pasted” Pruitt’s allegations into the ESP. Lieutenant Daniel testified she would not have approved the ESP had she known Pruitt authored much of it.
  • On retaliation, the court found that Liedtke’s evidence was circumstantial, not direct, but nonetheless sufficient to survive summary judgment under McDonnell Douglas. The timeline—ESP issued one day after her complaint to McBee, resignation weeks later—supported a reasonable inference of causation, and a reasonable jury could find the City’s performance-based justification pretextual given the ESP’s unusual features. The court concluded: “One claim is out; two must go back. . . . Those are jury questions.”

Unpublished decisions

• Finite Utility Consulting, L.L.C. v. Tawa, Incorporated (Retail), et al., 25-20396, appeal from S.D. Tex.
  • per curiam (Willett, Engelhardt, Douglas) (no oral argument), expert witness, breach of contract
  • Affirming exclusion of plaintiff’s expert witness and summary judgment dismissal of plaintiff’s breach of contract claims; and affirming summary judgment dismissal of defendant’s breach of contract counterclaims.
  • At issue on appeal was (1) whether the district court abused its discretion in excluding a damages expert (Ibanez) under Daubert for relying on unsupported assumptions—specifically, using the maximum contractual commission rate and a three-year term without consulting market data; (2) whether the district court abused its discretion in excluding late-disclosed rebuttal expert opinions (Lee) under Rules 26 and 37, where the amended disclosure was filed 21 days past the rebuttal deadline and introduced new opinions specifically targeting the opposing expert; (3) whether summary judgment was proper on Finite’s breach-of-contract claims for lack of admissible damages evidence once the expert was excluded; and (4) whether summary judgment was proper on Tawa’s counterclaims for breach of contract, promissory estoppel, negligent misrepresentation, and unjust enrichment arising from an energy broker’s alleged guarantee of an “all-in” electricity price.
  • The court held that exclusion of the damages expert was proper because the expert’s model was “unsupported ipse dixit, not reliable damages analysis”; that exclusion of the late-disclosed rebuttal opinions was justified because three of four Geiserman factors favored exclusion; that summary judgment for Tawa on Finite’s claims was proper because Finite had no admissible damages evidence; and that summary judgment for Finite on Tawa’s counterclaims was proper because the Letter of Assurance disclaimed any guarantee and Tawa could not show breach, justified reliance, or pecuniary loss.

• United States v. Reyes-Vanegas, 25-40578, appeal from S.D. Tex.
  • per curiam (Wiener, Stewart, Richman) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• United States v. England, 26-10134, appeal from N.D. Tex.
  • per curiam (Willett, Duncan, Engelhardt) (no oral argument), criminal, supervised release
  • Affirming revocation of supervised release under 18 U.S.C. § 3583(g) (mandatory revocation of supervised release for certain violations), rejecting argument that statute is unconstitutional under United States v. Haymond, 588 U.S. 634 (2019).
  • The court granted the Government’s motion for summary affirmance, holding that the constitutional challenge is foreclosed by United States v. Garner, 969 F.3d 550 (5th Cir. 2020).

• United States v. Mendoza-Vargas, 25-10730, appeal from N.D. Tex.
  • per curiam (Stewart, Graves, Wilson) (no oral argument), criminal, sentencing
  • Affirming 175-month sentence on drug-trafficking conviction.
  • At issue on appeal was whether the district court plainly erred by not applying a mitigating role reduction under U.S.S.G. § 3B1.2 and a corresponding decrease in base offense level under U.S.S.G. § 2D1.1(a)(5) based on Amendment 833 to the Sentencing Guidelines (effective November 1, 2025), which encourages broader application of mitigating role reductions for couriers in drug-trafficking cases. The defendant argued that Amendment 833 should apply retroactively as a “clarifying” amendment.
  • The court found that three of four factors indicate Amendment 833 is likely substantive rather than clarifying: the Commission did not expressly characterize it as clarifying, it alters the text of § 2D1.1 itself, and it is not listed as retroactively applicable in § 1B1.10(d). Even assuming the amendment is clarifying, the defendant could not show plain error because retroactive application is “subject to reasonable dispute” and there is no controlling authority supporting his position. The court further noted the district court’s statement that it would have imposed the same 175-month sentence regardless of any Guidelines error due to extreme aggravating factors (massive quantity of fentanyl doused in chemicals to evade detection, lack of deterrence from prior convictions).

• United States v. Dugas, 26-40005, appeal from E.D. Tex.
  • per curiam (Wiener, Stewart, Richman) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• United States v. Turner, 25-10740, appeal from N.D. Tex.
  • per curiam (Willett, Engelhardt, Douglas) (no oral argument), criminal, sentencing
  • Affirming 36-month sentence.
  • At issue on appeal was (1) whether the district court committed reversible plain error in classifying the defendant’s prior Georgia child molestation conviction as a tier III offense under SORNA for purposes of calculating his base offense level under U.S.S.G. § 2A3.5(a)(1)–the court applied the categorical approach and found that the Georgia statute sweeps more broadly than the federal comparator (abusive sexual contact under 18 U.S.C. § 2244) because the Georgia statute criminalizes masturbating in the presence of a minor without requiring intentional touching of the minor’s genitalia; (2) whether alleged clerical and substantive errors in the record warranted remand; and (3) whether the record should be supplemented with state-court documents.
  • The court agreed that the tier III designation was error under the categorical approach but held that the error did not affect the defendant’s substantial rights because the district court expressly stated—both orally and in its written Statement of Reasons—that it would have imposed the same 36-month sentence regardless of the Guidelines range, citing Turner’s extensive criminal history, his two-year failure to register, his use of false identification, and the need to protect the public. The court declined to remand for correction of substantive errors because the plain-error standard was not met and noted that Turner could move the district court directly under Rule 36 for any clerical errors. The motion to supplement the record was denied because the documents were never before the district court and Turner did not explain their relevance.

• United States v. Taylor, 26-30205, appeal from M.D. La.
  • per curiam (Clement, Haynes, Ramirez) (no oral argument), criminal, Second Amendment
  • Affirming conviction of felon-in-possession, rejecting Second Amendment challenge, holding that the facial and as-applied challenges are foreclosed by United States v. Diaz, 116 F.4th 458, 471–72 (5th Cir. 2024), cert. denied, 145 S. Ct. 2822 (2025).

• United States v. Saavedra-Posadas, 25-10702, appeal from N.D. Tex.
  • per curiam (Elrod, Richman, Engelhardt) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• United States v. Espinoza-Estrada, 26-10137, appeal from N.D. Tex.
  • per curiam (Jones, Ho, Wilson) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal (though with remand to the district court for the limited purpose of correcting the clerical error in the judgment under Federal Rule of Criminal Procedure 36).