Take the Fifth

Designated for publication

• MAPP, L.L.C. v. Floor and Decor Outlets of America, Inc., 25-30536, appeal from E.D. La.
  • Southwick, J. (Southwick, Graves, Wilson) (oral argument withdrawn), Wilson, J., concurring; arbitration
  • Affirming denial of defendant’s motion to compel arbitration.
  • Floor and Decor Outlets of America (“F&D”), a national flooring retailer, contracted with MAPP, L.L.C., a local Louisiana construction management company, for the building of a retail store in Metairie, Louisiana. F&D terminated the agreement for schedule delays, and MAPP eventually sued under the Louisiana Private Works Act. F&D moved to compel arbitration under a clause giving F&D, as “Owner,” the “sole discretion” to elect arbitration. The district court denied the motion, and F&D appealed.
  • At issue on appeal was whether the one-sided arbitration clause was enforceable under Louisiana law. The Fifth Circuit affirmed the denial of F&D’s motion to compel arbitration, holding that the clause was adhesionary and therefore unenforceable under Louisiana law.
  • The court applied the four-factor adhesion test from Duhon v. Activelaf, LLC, examining: (1) the physical characteristics of the clause, (2) its distinguishing features, (3) mutuality, and (4) the parties’ relative bargaining strength. Two factors—lack of mutuality and unequal bargaining position—supported adhesion. The contract gave F&D sole discretion to compel MAPP to arbitrate but denied MAPP the same right, and a seemingly symmetrical attorney’s fees provision was in reality a “one-sided fees award to F&D.” MAPP was a local contractor that won a competitive bid from a national chain and had “little choice but to accept” the unequal terms.
  • Judge Wilson concurred in the judgment but would have affirmed on the narrower ground that F&D failed to comply with the contract’s pre-arbitration dispute resolution steps. F&D’s Project Manager never issued the required written decision on MAPP’s claim, and no confidential negotiation or mediation occurred, so MAPP’s duty to arbitrate “was never triggered.” Judge Wilson noted he was “reticent to break new ground” on how Louisiana’s Duhon four-factor test applies to this type of arbitration clause when the dispute could be resolved on procedural grounds.

• Castelan v. Taylor, 25-50714, appeal from W.D. Tex.
  • Graves, J. (Wiener, Haynes, Graves) (oral argument), qualified immunity
  • Reversing denial of qualified immunity to detention facility administrator on plaintiff’s claims arising from 252-day detention without charges.
  • Moctezuma Rivera-Castelan was arrested in Kinney County, Texas, for criminal trespass in a disaster area during Operation Lone Star. He was brought to the Val Verde Processing Center, a makeshift tent arraignment site, where a paperwork error delayed the transmission of his counsel-appointment forms to the public defender’s office by nearly three months. His first appointed lawyer did no work on his case for six months. When a new lawyer was finally appointed, she quickly discovered Rivera had never been formally charged, and the state dropped the case within five days. Rivera spent 252 days in custody and was never charged.
  • Rivera sued Ronny Taylor, the Val Verde facility administrator, under 42 U.S.C. § 1983 for a Sixth Amendment violation, alleging Taylor had a nondiscretionary duty to transmit counsel-appointment paperwork. The Fifth Circuit reversed the district court’s denial of qualified immunity, holding that Taylor acted within his discretionary authority and that Rivera could not overcome qualified immunity.
  • The court held that Texas law assigns the duty to transmit counsel-appointment paperwork to the magistrate, not the facility administrator, and under longstanding Texas law, “a public officer . . . cannot delegate [their] official duties to another.” Because Taylor had no statutory duty analogous to the magistrate’s obligation, he performed a discretionary function and could assert qualified immunity. On the merits of the immunity defense, the court found Rivera’s Sixth Amendment theory—that the expiry of the article 17.151 deadline for an affordable bond constituted a critical stage requiring counsel—was “novel,” and no prior decision gave Taylor “reasonable warning” that his conduct violated the Constitution. Rivera’s claim was dismissed.

• United States v. Deluna, 25-20036, appeal from S.D. Tex.
  • Southwick, J. (Southwick, Willett; Ho, J., recused after oral argument, and decision on a quorum) (oral argument); criminal, Miranda, sentencing
  • Affirming conviction and sentence on firearms charges.
  • Karina Deluna was convicted of conspiracy and seven counts of making false statements on federal firearms forms (ATF Form 4473) in connection with a straw-purchasing scheme in which she bought firearms on behalf of others, at least one of which was recovered in Mexico. ATF agents conducted three interviews with Deluna, none preceded by Miranda warnings, and obtained confessions during the second and third interviews. At trial, co-defendant Haley Medlin testified about the scheme, and extensive documentary evidence—text messages, emails, and photos from Deluna’s phone—corroborated the charges. The jury convicted Deluna on eight of nine counts, and she was sentenced to 87 months.
  • At issue on appeal was (1) the voluntariness of her recorded statements, (2) evidentiary rulings admitting a physical .50 caliber rifle and photographs of firearms from her phone, and (3) the substantive reasonableness of her sentence.
  • The court found Deluna’s second interview was voluntary, noting it took place at her home, she was surrounded by family, and the agents’ remark that her story was “implicating [her] mother” was a permissible one-off warning, not coercion. As for the more coercive third interview—which included threats to call Child Protective Services and statements that Deluna was “detained”—the court declined to decide voluntariness, instead holding that admission of the third interview was harmless beyond a reasonable doubt because it was cumulative of two earlier confessions and “the untainted proof of the defendant’s guilt was overwhelming.” The court noted that the Government itself treated Deluna’s third confession “as unnecessary to the case, and we agree.”
  • On the evidentiary issues, the court held that the display of a single Barrett .50 caliber rifle was relevant and its prejudice did not substantially outweigh its probative value, quoting the First Circuit: “seeing is believing.” The photographs of firearms on Deluna’s phone were relevant to rebut her defense of ignorance about firearms restrictions. As for sentencing, the court held that the 87-month within-Guidelines sentence was presumptively reasonable and that Deluna’s arguments—aggregate sentence exceeding any single statutory maximum, above-average sentence length, and co-defendant disparity—were each foreclosed by precedent.

• Eqbal v. Blanche, 25-60504, petition for review of BIA order
  • Engelhardt, J. (Willett, Engelhardt, Douglas) (oral argument withdrawn), immigration
  • Granting petition for review of BIA order affirming IJ’s denial of asylum, withholding of removal, and CAT protection, vacating BIA’s decision, and remanding for further proceedings.
  • Salaruddin Eqbal, a native and citizen of Afghanistan and ethnic Tajik, served as security personnel for high-ranking Afghan government officials, beginning as a bodyguard in 1993 and continuing through the fall of the government in 2021. When the Taliban regained control, they issued warrants for Eqbal’s arrest, searched for him, beat his mother, and forced his family into hiding. Eqbal fled to the United States in 2023 and applied for asylum, withholding of removal, and CAT protection. The IJ denied all relief based primarily on an adverse credibility determination, and the BIA affirmed.
  • The court considered whether the IJ’s adverse credibility finding was supported by substantial evidence.
  • The IJ heavily relied on a date discrepancy from Eqbal’s credible fear interview—recording 1972 instead of 1993 for the start of his employment—but the court found this was plainly a calendar-translation error between the Afghan and Gregorian calendars. “No reasonable factfinder could have rejected Eqbal’s explanation,” the court wrote, especially since “the Taliban movement did not exist in 1972” and “Eqbal had yet to be born in 1972.” The IJ’s finding that Eqbal omitted his prior imprisonment from the credible fear interview was “unsupported by the record,” as the interview notes actually described the imprisonment.
  • The court also held that the agency failed to meaningfully consider key evidence, including photographs of Eqbal with high-ranking Afghan officials, government employment ID cards, and Taliban warrant-equivalent documents calling for his arrest. The Board incorrectly stated the photographs lacked dates and descriptions when they in fact contained both. The court emphasized: “we do not blindly defer to findings of the IJ and the Board.”

• Knighton v. Benton County, Mississippi, 25-60383, appeal from N.D. Miss.
  • Graves, J. (Southwick, Graves, Wilson) (oral argument), qualified immunity
  • Reversing in part denial of summary judgment, and dismissing in part upon conducting qualified immunity analysis.
  • Chelsea Knighton’s then-mother-in-law, Kathy Graves (the Benton County Circuit Clerk), enlisted probation officer Steve Belew and Sheriff Robert Goolsby in an encounter at Knighton’s home. According to Knighton, Belew “aggressively forced her into a bathroom,” then “pinned her down with his knee, grabbed her face, pried open her mouth and forced an oral swab” for a drug test, declared it positive without showing results, and left with her children. Sheriff Goolsby then arrested Knighton. She was tested for drugs multiple times after arrest and “never tested positive.” She lost custody of her children for over a year before all charges were dropped.
  • Knighton sued all defendants for multiple federal constitutional violations (unlawful seizure, false arrest, excessive force, fabrication of evidence, abuse of process, right to familial association) and state-law claims (malicious prosecution, IIED, conspiracy). The district court denied summary judgment without conducting a qualified immunity analysis. The Fifth Circuit reversed in part and dismissed in part, conducting the qualified immunity analysis itself.
  • Kathy Graves: The court held she was not acting under color of law because “[w]ithout any manifestation of official power, no jury could conclude she was acting under color of law,” even though she “likely got more law enforcement action than the average person would.” All federal § 1983 claims against her were dismissed, but state-law claims for malicious prosecution, IIED, and conspiracy survived.
  • Belew (unlawful seizure/excessive force): The court rejected Belew’s exigent-circumstances defense, reasoning that once he removed the children from the home, “he was removing them from immediate harm, so he had no cause to force Knighton to take the drug test.” If the jury credits Knighton’s account, this “would be an ‘obvious’ case” of excessive force under Graham: “Police cannot simply enter someone’s home, command them to submit to a drug test, and ‘pry’ their mouth open to effectuate their demand.”
  • Fabrication of evidence: A genuine dispute existed because Goolsby admitted that statements in his post-arrest affidavit were incorrect—initially swearing Knighton neglected her children by “using drugs in the presence of the child and passing out,” but later conceding he “never said that [she was] using them while the kids were in the house.”
  • Abuse of process: Reversed, because “[t]here is no constitutional right to be free from abuse of process.”
  • Benton County: Appeal dismissed for lack of interlocutory jurisdiction, as municipalities do not enjoy qualified immunity.

• In re Sourcewater, Inc. — Adler v. Energy Debt Holdings LLC, 25-20475, appeal from S.D. Tex.
  • Smith, J. (Smith, Willett, Ramirez) (oral argument), Willett, J., concurring; bankruptcy, judicial estoppel
  • Affirming dismissal of adversary proceeding regarding priority order of notes.
  • Sourcewater, Inc. filed for Chapter 11 bankruptcy. Two loans competed for priority: an SBA Note and an EDH Note held by Energy Debt Holdings LLC. A Cash Collateral Order barred challenges to the EDH Loan’s priority filed after June 15, 2023, and at a later hearing, SBA’s own counsel conceded that the SBA Note was “the second position” behind the EDH Note because SBA had filed its UCC-1 in the wrong jurisdiction. The resulting Confirmation Order gave the EDH Note “first priority.” Joshua Adler later acquired the SBA Note and filed an adversary proceeding seeking a declaration that the SBA Note was senior. The bankruptcy court dismissed on judicial estoppel grounds; the district court affirmed on alternate grounds.
  • At issue on appeal was whether Adler could challenge the EDH Note’s priority after the Cash Collateral Order’s deadline and the Confirmation Order. The Fifth Circuit affirmed, holding that Adler’s suit was barred by the Cash Collateral and Confirmation Orders.
  • The court’s majority opinion was brief: the Cash Collateral Order expressly barred any adversary proceeding challenging the priority of the EDH Loan filed after June 15, 2023, and Adler’s suit was filed after that date. The Confirmation Order independently gave the EDH Note first priority. Because the orders resolved the dispute, the court did not decide whether judicial estoppel independently barred Adler’s claims.
  • Judge Willett joined the majority opinion in full but wrote a lengthy concurrence questioning the legal foundations of modern judicial estoppel, noting that Justice Thomas recently “questioned the doctrine’s pedigree.” Judge Willett wrote: “Judicial estoppel was unknown at the Founding, surfaced in state law decades later, and then spread rapidly through the federal courts without any settled account of its source or limits.” He examined and rejected all three asserted sources—equity, inherent power, and common law—concluding that none “supports the doctrine in its modern federal form.” On equity, he observed that the Supreme Court has stressed “equitable authority is not freewheeling” and requires a “Founding-era antecedent,” yet no such antecedent has been identified for judicial estoppel. On inherent power, he noted it is “strongest when local, necessary, and tailored, while judicial estoppel in its broad, cross-proceeding form is often none of the three.” He concluded: “Before inconsistency forecloses an otherwise available claim, a court should be able to identify the law that makes it fatal

Unpublished decisions

• United States v. Rivera, 26-20057, appeal from S.D. Tex.
  • per curiam (Willett, Duncan, Engelhardt) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Welsh v. Williams, 24-11108, appeal from N.D. Tex.
  • per curiam (Willett, Engelhardt, Douglas) (no oral argument), prisoner suit
  • Affirming dismissal of claims by civilly committed detainee.
  • At issue on appeal was whether a civilly committed sexually violent predator stated valid federal and state law claims arising from a scuffle with security guards and ensuing arrest; history of vexatious litigation and repeated sanctions
  • The court affirmed dismissal of all claims, finding no reversible error and no nonfrivolous issue. The court imposed a $500 sanction, barred Welsh from filing any pleading in the Fifth Circuit or courts subject to its jurisdiction until the sanction is paid (absent leave of court), warned of further sanctions for frivolous or repetitive filings, and directed him to dismiss all pending frivolous matters

• Turner v. Johnson, 25-11274, appeal from N.D. Tex.
  • per curiam (Jones, Smith, Higginson) (no oral argument), prisoner suit
  • Dismissing as frivolous appeal from dismissal of Texas state prisoner’s § 1983 action.

• Surface v. Pacillas, 25-50786, appeal from W.D. Tex.
  • per curiam (Stewart, Graves, Wilson) (oral argument), Title VII, employment discrimination
  • Affirming summary judgment for defendants on employment discrimination claims.
  • At issue on appeal was whether two supervisory police officers who were terminated following sexual harassment allegations against them could sustain claims of discrimination and retaliation under Title VII and various constitutional provisions.
  • After oral argument and full review of the record, the court affirmed summary judgment, concluding that no rational jury could find for the plaintiffs on any of their claims.

• Bruce v. 9th Judicial District Court, 25-30730, appeal from W.D. La.
  • per curiam (Davis, Richman, Oldham) (no oral argument), Eleventh Amendment
  • Affirming dismissal against Louisiana judicial district court.
  • At issue on appeal was whether a Louisiana judicial district court is a proper defendant in a federal civil rights action; Eleventh Amendment immunity.
  • The Court held that under McLin v. Twenty-First Judicial District, Louisiana district courts lack capacity to be sued because they are not separate juridical entities. Bruce forfeited appellate review by failing to address this dispositive issue on appeal.

• Fields v. McCarter, 26-40253, appeal from E.D. Tex.
  • per curiam (Smith, Southwick, Oldham) (no oral argument), civil rights
  • Affirming dismissal of a pro se father’s claims concerning a school district’s alleged interference with his custody rights for failure to state a claim, where the only cause of action invoked was a Texas criminal statute.
  • The court found that Fields did not file proper objections to the magistrate judge’s report and recommendation, reviewed for clear error, and found no clear error in the conclusion that no claim for relief existed.

• United States v. McCuin, 25-60555, appeal from S.D. Miss.
  • per curiam (Smith, Stewart, Oldham) (no oral argument), criminal, Second Amendment, Commerce Clause
  • Affirming conviction of felon-in-possession, rejecting Second Amendment and Commerce Clause challenges as foreclosed by circuit precedent (Schnur, Diaz, Alcantar).

• Thunderhorse v. Collier, 25-20416, appeal from S.D. Tex.
  • per curiam (Stewart, Graves, Wilson) (no oral argument), prisoner suit
  • Affirming denial of prisoner’s civil rights claims.
  • At issue on appeal was whether the district court erred in dismissing prisoner civil rights claims alleging unconstitutional treatment of elderly, disabled, and chronically ill prisoners under the ADA, Rehabilitation Act, and various constitutional provisions; denial of class certification; whether a Spears hearing was required.
  • The court found that Thunderhorse abandoned his challenges through inadequate briefing, failed to meaningfully engage with the district court’s reasoning, and did not show an abuse of discretion in the denial of class certification

• Abas v. City of Plano, 26-40181, appeal from E.D. Tex.
  • per curiam (Willett, Duncan, Engelhardt) (no oral argument), § 1983, timeliness
  • Affirming dismissal of § 1983 claims as time-barred.
  • At issue on appeal was whether the statute of limitations for § 1983 claims should be equitably tolled because the plaintiff relied on his criminal defense attorney’s advice to delay filing a civil suit.
  • Abas forfeited his argument by failing to cite any record evidence or legal authority in his brief. Even on the merits, equitable tolling was unavailable under Texas law because Abas did not allege fraudulent concealment by the defendants, and no Texas case law supports tolling based on an attorney’s advice to wait.

• United States v. Lathen, 26-10052, appeal from N.D. Tex.
  • per curiam (Smith, Stewart, Oldham) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Williamwest v. Richardson, 25-30613, appeal from E.D. La.
  • per curiam (Higginson, Willett, Oldham) (no oral argument), appellate jurisdiction
  • Dismissing appeal for lack of timely filed notice of appeal.

• Okorie v. Forrest General Hospital, 26-60070, appeal from S.D. Miss.
  • per curiam (Smith, Southwick, Oldham) (no oral argument), employment, breach of contract, personal torts
  • Affirming summary judgment dismissal of claims of breach of contract, tortious interference, defamation, and intentional infliction of emotional distress arising from an independent-contractor physician’s termination; applyingthe Mississippi Tort Claims Act.
  • Claims against the hospital and its employees were barred by the MTCA (argument forfeited by not raising it in the opening brief). Claims for defamation, tortious interference, and IIED against the staffing agency were forfeited for failure to oppose summary judgment below. The breach of contract claim against the staffing agency failed on the merits because the contract permitted immediate termination upon the hospital’s request.

• United States v. Aguirre-Gallegos, 24-20522, appeal from S.D. Tex.
  • per curiam (Willett, Duncan, Engelhardt) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Estate of Bellamy v. Ford Motor Company, 25-50630, appeal from W.D. Tex.
  • per curiam (Willett, Enhelhardt, Douglas) (oral argument withdrawn), evidence, personal tort
  • Affirming denial of new trial to plaintiff.
  • At issue on appeal was whether the district court abused its discretion in denying a motion for new trial after a defense exhibit (a summary chart of carbon monoxide testing) was inadvertently submitted to the jury as substantive evidence rather than a demonstrative exhibit; whether this constituted prejudicial “extrinsic evidence” warranting a presumption of prejudice.
  • The court found the exhibit was not truly “extrinsic” because its contents had been displayed to the jury multiple times during trial as a demonstrative. Even assuming error, the admission was harmless because substantial admissible evidence supported the verdict and the exhibit was cumulative. The hearsay argument was forfeited for not being raised in the Rule 59(a) motion and, regardless, failed on the merits because the information was properly authenticated as a business record.

• Cunningham v. PlainsCapital Bank, 25-20363, appeal from S.D. Tex.
  • per curiam (Stewart, Graves, Wilson) (no oral argument), arbitration, Electronic Fund Transfer Act
  • Affirming order compelling arbitration, but vacating dismissal of claims.
  • At issue on appeal was whether the district court properly compelled arbitration of fraud claims against a bank where an authorized signer executed an agreement incorporating an arbitration clause; whether the district court properly dismissed claims against a receiving bank for failure to state a claim; whether a pro se plaintiff’s amended complaint was timely; subject matter jurisdiction under the Electronic Fund Transfer Act.
  • The court affirmed the order compelling arbitration against PlainsCapital, finding Simpkins had authority as an authorized signer to bind the partnership. However, the court vacated the dismissal of the claim against PlainsCapital, holding that once arbitration was compelled, the court should not have ruled on the merits; remanded for the district court to stay or dismiss without prejudice. Affirmed dismissal of Pathward for failure to state a claim and found the amended complaint was untimely under Rule 15(a)(1)

• Rogers v. Espinoza, 25-40367, appeal from S.D. Tex.
  • per curiam (Southwick, Graves, Wilson) (oral argument), qualified immunity
  • Reversing denial of qualified immunity dismissal to officer defendants, and rendering judgment in favor of defendants.
  • At issue on appeal was whether police officers were entitled to qualified immunity on excessive force and bystander liability claims arising from a school-zone arrest; whether the plaintiff’s rights were clearly established; whether body camera video evidence “blatantly contradicted” the plaintiff’s version of events under Scott v. Harris.
  • The court found that Rogers abandoned her excessive-force claim against Espinoza by repeatedly characterizing her claims against him as based solely on “inaction” (bystander liability) throughout the litigation. On bystander liability, Rogers failed to cite analogous case law showing her rights were clearly established—her cited cases involved direct excessive force, not officer inaction. As to Carranza, the court held Rogers’s rights were not clearly established because the cited precedents involved far more severe force or passive resistance, unlike Rogers’s active resistance, and the case did not meet the “sky high” standard for an “obvious case” under Graham.

• Williams v. Male Nurse John Doe, 25-50977, appeal from W.D. Tex.
  • per curiam (Smith, Southwick, Oldham) (no oral argument), prisoner suit
  • Affirming dismissal of prisoner’s suit about medical care received in 2022 as barred by the statute of limitations when suit was filed in July 2025.

• United States v. Francisco, 26-30052, appeal from W.D. La.
  • per curiam (Willett, Duncan, Engelhardt) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Black v. Triplett (In re Triplett), 25-40520, appeal from E.D. Tex.
  • Jones, J. (Jones, Clement, Richman) (oral argument), bankruptcy
  • Affirming discharge order.
  • At issue on appeal was whether a Chapter 7 debtor should be denied discharge under 11 U.S.C. § 727(a)(3) (failure to keep records), § 727(a)(4)(A) (false oath), and § 727(a)(6)(A) (refusal to obey court orders); whether the debtor’s failure to appear on the first day of trial violated Bankruptcy Rule 4002 and, if so, warranted denial of discharge; appellate jurisdiction under 28 U.S.C. § 158(d)(1).
  • The court held that it had jurisdiction because the discharge ruling was a final, separately appealable order even though the sanctions motions were remanded. While Triplett plainly violated Rule 4002 by failing to appear on the first day of trial, the error was harmless because opposing counsel was ultimately able to ask all intended questions during rebuttal and the violation did not categorically require denial of discharge. On § 727(a)(3), the bankruptcy court did not clearly err in finding that adequate records existed—including volumes of bank records—to ascertain Triplett’s financial condition, and any shortfall was justified by third-party destruction of records. On § 727(a)(4)(A), creditors failed to show Triplett’s alleged misstatements were knowingly false or made with fraudulent intent. On § 727(a)(6)(A), Triplett did not willfully or intentionally disobey any court order

• United States v. Sealed Appellant, 25-30592, appeal from W.D. La.
  • per curiam (Jones, Ho, Wilson) (no oral argument), criminal
  • Affirming denial of substantial-assistance motion.
  • At issue on appeal was whether the district court should have required the government to state reasons for declining to file a substantial-assistance motion under U.S.S.G. § 5K1.1 or 18 U.S.C. § 3553(e).
  • The court held that the appellant failed to make a threshold showing of unconstitutional motive by the government, as required by Wade v. United States.

• United States v. Johnson, 26-10064, appeal from N.D. Tex.
  • per curiam (Smith, Stewart, Oldham) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Queen v. United States, 26-30085, appeal from W.D. La.
  • per curiam (Davis, Richman, Oldham) (no oral argument), appellate jurisdiction, mootness
  • Dismissing as moot appeal where order being appealed had been explicitly vacated by the district court.