Take the Fifth

Designated for publication

• La Union del Pueblo Entero v. Abbott, 25-50246, appeal from W.D. Tex.
  • Oldham, J. (Higginbotham, Smith, Oldham) (oral argument), election law, Americans with Disabilities Act, standing
  • Reversing permanent injunction against provisions of Texas SB 1’s imposition of certain elections restrictions under Title II of the ADA.
  • Multiple civil-rights organizations challenged nine provisions of Texas Senate Bill 1 (the Election Protection and Integrity Act of 2021), which imposed new identification requirements for mail-in ballots, regulated voter assistance, and restricted compensation for certain electioneering activities. After a bench trial, the district court permanently enjoined enforcement of those provisions under Title II of the Americans with Disabilities Act and § 504 of the Rehabilitation Act of 1973.
  • At issue on appeal was (1) whether the plaintiff organizations had associational or organizational standing to challenge the identification provisions; (2) whether they had standing to challenge the voter-assistance provisions; (3) whether the compensation provisions violate the ADA and Rehabilitation Act on the merits.
  • The court found no associational standing because the only identified injured voter, Yvonne Yvette Iglesias, had since learned how to comply with the ID requirements and faced no “substantial risk” of future injury. The court noted that mail-in ballot rejection rates had dropped from 11–12% to 2.7% within eight months of S.B. 1’s enactment. Organizational standing based on diversion of resources was foreclosed by the Supreme Court’s decision in FDA v. Alliance for Hippocratic Medicine, 602 U.S. 367 (2024).
  • The voter-assistance standing arguments were held foreclosed by the court’s prior decision in LUPE, 151 F.4th at 287–88, which rejected the same arguments from the same plaintiffs on the same record. As to the compensation provisions, the court found the plaintiffs lacked standing against election officials, the Attorney General, and the Secretary of State because none of those defendants can enforce the criminal prohibitions.
  • On the one claim that survived standing analysis—against local prosecutors regarding the compensation provisions—the court held it failed on the merits because local prosecutors are not responsible for providing the benefits of voting, and plaintiffs therefore cannot establish a prima facie case of disability discrimination against them. The court wrote: “None justifies interference with the State Legislature’s efforts to prevent voter fraud and to protect election integrity.”

• United States v. Brann, 24-50378, appeal from W.D. Tex.
  • Richman, J. (Richman, Higginson, Douglas) (no oral argument), criminal, restitution, guilty plea
  • Affirming restitution order as part of sentence for sexual exploitation of a minor.
  • Gerald Talman Brann pleaded guilty to sexually exploiting his stepdaughter (beginning when she was five or six years old) under 18 U.S.C. § 2251(a). He was sentenced to 360 months’ imprisonment and ordered to pay $100,000 in restitution for the victim’s future counseling costs, an amount he agreed to in his plea agreement. Brann also waived his right to appeal his conviction or sentence, but later challenged the restitution as exceeding the statutory maximum.
  • At issue on appeal was (1) whether Brann’s appeal waiver bars his challenge that the $100,000 restitution order exceeds the statutory maximum under 18 U.S.C. § 2259; (2) whether the restitution was supported by evidence of proximately caused losses; and (3) correction of a clerical error in the judgment.
  • Applying the Supreme Court’s recent decision in Hunter v. United States, 146 S. Ct. 1702 (2026), the court held that an appeal waiver cannot bar a challenge that a sentence exceeds the statutory maximum. The court therefore reached the merits of whether $100,000 exceeded the “full amount of the victim’s losses” under § 2259.
  • The court concluded that the restitution did not exceed the statutory maximum, even under de novo review. Brann’s own statement in the plea agreement that his stepdaughter would incur at least $100,000 in future therapy costs constituted “some evidence” to support that amount, as did his allocution. The court observed: “The $100,000 awarded likely set the floor of the victim’s losses, drawing from the harm directly caused by Brann.” Other circuit decisions confirmed that $100,000 for projected treatment costs “is reasonable and well within the range of projected costs for other similarly situated victims over the course of their lives.”
  • As to Brann’s separate “no evidence” claim, the court held it was barred by the appeal waiver because it did not fall within any of the Hunter examples of errors that “would bring the judiciary into disrepute.” The court also noted that the written judgment incorrectly identified the offense as “Distribution of Child Pornography” under § 2252A(a)(2) rather than “Sexual Exploitation of Children” under § 2251(a), and remanded for correction.

• K Alain, L.L.L.P. v. Commissioner of Internal Revenue, 24-60240, appeal from U.S. Tax Court
  • per curiam (Graves, Engelhardt, Oldham), Graves, J., dissenting (oral argument), tax law
  • After withdrawing original panel decision, substituting new opinion vacating Tax Court’s upholding of IRS adjustments to partnership earnings, and remanding.
  • Sirius Solutions, L.L.L.P. (now K Alain), a Delaware limited liability limited partnership operating a business consulting firm, allocated all ordinary business income to its limited partners and reported $0 in net earnings from self-employment for 2014–2016. The IRS determined that the partners were not “limited partners” under 26 U.S.C. § 1402(a)(13) and adjusted net earnings from self-employment accordingly. The Tax Court upheld the adjustments based on its Soroban Capital Partners precedent, which defined “limited partner” as a “passive investor.”
  • At issue on appeal was the meaning of “limited partner” in § 1402(a)(13) for purposes of the self-employment tax exemption—specifically whether the term refers only to passive investors (the Tax Court’s Soroban rule) or has a different original public meaning.
  • The court held that the original public meaning of “limited partner” in 1977 (when Congress enacted the provision) was a partner who plays no significant role in managing or running a business—not the Tax Court’s more restrictive “passive investor” standard. The majority relied on contemporaneous legal dictionaries, the Uniform Limited Partnership Act of 1916, the Revised ULPA of 1976, and treatises, all of which defined limited partners by their non-participation in management.
  • The court rejected the Tax Court’s Soroban decision, noting it was “divorced from statutory text” and “appear[ed] to prohibit even the most minor involvement in corporate affairs.” The court also observed that IRS instructions from 1978 through 2017 defined “limited partner” solely by reference to limited liability, leading parties to rely on that standard for decades. The case was remanded so the Commissioner could consider whether Sirius’s partners fall within the court’s definition.
  • Judge Graves dissented, contending that the text and structure of § 1402(a)(13)—particularly the phrase “as such”—clearly limits the tax exemption to passive investors, consistent with the Tax Court’s long line of cases from Renkemeyer (2011) through Soroban (2023). He accused the majority of creating “an indefensible, illogical, and illegal loophole which allows millions of dollars in net earnings from self-employment to go untaxed as earnings even though that is exactly what they are.” He noted that federal courts across the country have long used “passive investor” in evaluating limited partners and that the majority “fails to identify the portion of the statute’s plain text . . . which ‘points towards’ the conclusion that partners may participate ‘so long as the partners do not exercise control over the business.'”

• United States ex rel. Doe v. Planned Parenthood Federation of America, 23-11184, appeal from N.D. Tex.
  • Elrod, C.J., and Graves, J. (joined by Jones, Smith, Barksdale, Stewart, Richman, Southwick, Haynes, Graves, Higginson, Willett, Ho, Duncan, Engelhardt, Oldham, Wilson, Douglas, Ramirez), Oldham, J., concurring in judgment only (w/o opinion) (oral argument); False Claims Act, appellate jurisdiction, en banc
  • In a highly unusual co-author-attributed opinion, in an equally unusual show of unanimity among the en banc Court, dismissing for lack of appellate jurisdiction an appeal from a denial of summary judgment that had survived initial panel review on the basis that jurisdiction existed under the collateral order doctrine.
  • A qui tam relator alleged that, after three Planned Parenthood regional affiliates were terminated from Medicaid, the Planned Parenthood Federation masterminded a scheme to continue submitting Medicaid claims in violation of the False Claims Act and analogous state laws. The district court denied the Federation’s motion for summary judgment on attorney-immunity grounds. A panel reversed under the collateral-order doctrine, holding the Federation entitled to attorney immunity, but the en banc court granted rehearing.
  • At issue on en banc rehearing was whether the court had appellate jurisdiction under the collateral-order doctrine to review the district court’s interlocutory denial of attorney immunity.
  • The court held that neither Texas nor Louisiana law provides a sufficient basis for collateral-order jurisdiction. Regarding Texas, the court noted that since its 2016 Troice Erie-guess that Texas treats attorney immunity as a true immunity from suit, “the Supreme Court of Texas has made conflicting statements characterizing attorney immunity as an affirmative defense to liability rather than a true immunity from suit—statements that . . . unsettle the Erie guess that we made in Troice.” Under Louisiana law, attorney immunity flows merely from an attorney’s duty of care to adversaries, “falling short of a guarantee of no trial.” The court further found that even under federal common law, the appeal failed because the Federation would still have to stand trial on the same claims to the extent they are premised on its own (non-attorney) actions, so resolving the immunity question would not “conclusively determine a separable legal issue in a way that meaningfully advances the litigation.”
  • Ultimately, the unanimous en banc Court clearly ratcheted down use of the collateral order doctrine as a basis for appellate jurisdiction.

• Citizens for Clean Air & Clean Water in Brazoria County v. U.S. Department of Transportation, 25-60202, petition for review of U.S. Maritime Administration order
  • Clement, J. (Clement, Southwick, Engelhardt) (oral argument), Deepwater Port Act, administrative law
  • Granting petition to review Maritime Administration’s approval of deepwater crude oil export terminal, and vacating approval.
  • In 2019, MARAD received three applications to build deepwater crude oil export ports off the coast of Freeport, Texas. When processing the Texas GulfLink application, MARAD excluded the port’s proposed pipeline from its application area, departing from its earlier practice of including pipelines for the competing SPOT and Texas COLT projects. MARAD approved both SPOT (in 2022) and Texas GulfLink (in 2025), even though Texas GulfLink’s pipeline would cross SPOT’s pipeline. Petitioner Better Brazoria, an environmental group, challenged the decision.
  • At issue on petition for review was whether the Deepwater Port Act of 1974 requires the Secretary of Transportation to include a proposed deepwater port’s pipelines in the designated application area—and if so, whether MARAD’s Record of Decision (“ROD”) violated the statute’s one-port-per-application-area rule.
  • The court performed de novo statutory interpretation, giving no deference to MARAD under Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024). It held that the DWPA requires application areas to include pipelines because § 1504(d)(1) mandates an application area “encompassing the deepwater port site,” and § 1502(9)(B) expressly defines “deepwater port” to “include[] all components and equipment, including pipelines . . . to the extent they are located seaward of the high water mark.”
  • The court rejected the Government’s three textual counterarguments: (1) the general/specific canon does not apply because the provisions are not contradictory; (2) the phrase “deepwater port site” does not have a materially different meaning from “deepwater port” under the consistent-usage canon; and (3) the structural vs. geographic framing of the two definitions does not override the statute’s cross-referencing of the defined term. The court wrote: “In the business of statutory interpretation, if it is not the best, it is not permissible.”
  • On remedy, the court applied the default rule of vacatur, concluding that MARAD’s error—designating an application area that did not comport with the DWPA—was “a serious procedural deficiency that the agency could neither correct nor justify on remand.” The court emphasized that requiring pipelines in application areas would not undermine the DWPA’s purpose of promoting deepwater ports because very few deepwater-port pipelines exist in the Gulf, and the statute only bars pipeline crossings between deepwater ports, not crossings with the “complex web” of ordinary oil pipelines.

Unpublished decisions

• United States v. Daniel Gamez, 25-40552, appeal from S.D. Tex.
  • per curiam (Elrod, Southwick, Ramirez) (no oral argument), criminal, sentencing
  • Affirming application of a two-level upward sentencing adjustment under U.S.S.G. § 2K2.1(b)(1)(A) and a four-level upward adjustment under U.S.S.G. § 2K2.1(b)(6)(B) to the defendant’s sentence for possession of a firearm after a felony conviction.
  • The court found that Gamez failed to show clear error in the district court’s application of either sentencing enhancement.

• United States v. Michael Larry Davis, 25-60689, appeal from S.D. Miss.
  • per curiam (King, Higginson, Douglas) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• United States v. Jerusalia Bell, 25-30522, appeal from W.D. La.
  • per curiam (Clement, Engelhardt, Wilson) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• United States v. Fernando Rodriguez-Hernandez, 25-40821, appeal from S.D. Tex.
  • per curiam (Jones, Ho, Wilson) (no oral argument), criminal, sentencing
  • Affirming supervised release conditions as part of sentence for illegal reentry.
  • The court held that the district court’s adoption of the PSR’s facts and calculations, combined with its express advisement that the defendant must “comply with all conditions of supervised release,” constituted sufficient shorthand reference to the standard conditions. The court further noted that Rodriguez-Hernandez forfeited his Rule 32 argument by failing to brief it, and that even if not forfeited, the court had no duty to confirm the defendant had reviewed the PSR with counsel.

• United States v. Miguel Diego-Mateo, 25-50812, appeal from W.D. Tex.
  • per curiam (Clement, Haynes, Ramirez) (no oral argument), criminal, sentencing
  • Affirming enhanced sentence on conviction of illegal reentry.
  • The court held that Diego-Mateo’s constitutionality argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998), as the defendant himself acknowledged.

• United States v. Chandler Ray Wilson, 25-11270, appeal from N.D. Tex.
  • per curiam (King, Higginson, Douglas) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• United States v. San Ynes Patino, 25-50039, appeal from W.D. Tex.
  • per curiam (Elrod, Southwick, Ramirez) (no oral argument), criminal, Second Amendment
  • Reversing conviction of felon-in-possession.
  • At issue on appeal was whether 18 U.S.C. § 922(g)(1) (felon-in-possession of a firearm) violates the Second Amendment as applied to a defendant whose predicate felony is simple drug possession.
  • The government conceded error in light of United States v. Hembree, 165 F.4th 909 (5th Cir. 2026), which held that § 922(g)(1) violates the Second Amendment as applied to a defendant whose predicate felony is simple drug possession.