Take the Fifth

Designated for publication

• W.M.M. v. Trump, 25-10534 (order denying motion to add class representatives), appeal from N.D. Tex.
  • Elrod, C.J. (joined by Jones, Smith, Stewart, Richman, Southwick, Graves, Higginson, Willett, Ho, Duncan, Engelhardt, Oldham, Wilson, Douglas, Ramirez, JJ.), Haynes, J., concurring in denial only (w/o separate opinion); immigration, amendment
  • Denying, without prejudice, motion to amend on appeal to add five new class representatives
  • Three Venezuelan nationals filed a habeas petition challenging removal under the President’s Alien Enemies Act Proclamation. After en banc oral argument, counsel disclosed that the government had subsequently instead removed all three named petitioners under the Immigration and Nationality Act (not the AEA). Petitioners moved to substitute five new class representatives on appeal; the government did not oppose.
  • At issue on the motion was whether the court should permit the addition of new class representatives on appeal in a case where no class has been certified and the original petitioners have been removed.
  • The court observed that no class exists in this case—the district court has not certified any class and in fact declined to do so. The proposed representatives have not shown compliance with Rule 23’s requirements, including commonality.
  • The proposed representatives appear “uniquely situated”—one has an approved asylum application, another holds valid Temporary Protected Status, and another has applied for lawful permanent residency—suggesting they may not be removable “under other lawful authorities.”
  • The district court is in a “much better position” to make factual determinations underlying Rule 23 prerequisites, and the denial does not preclude future class certification or amendment of the petition on remand.

• W.M.M. v. Trump, 25-10534 (order denying pseudonymity and sealing motions), appeal from N.D. Tex.
  • Elrod, C.J. (joined by Jones, Smith, Stewart, Richman, Southwick, Graves, Higginson, Willett, Ho, Duncan, Engelhardt, Oldham, Wilson, Douglas, Ramirez, JJ.), Haynes, J., concurring in denial only (w/o separate opinion); immigration, sealed records, pseudonymity
  • Denying without prejudice motion to seal the unredacted motion of the five proposed new class representatives and to allow them to proceed pseudonymously.
  • The five proposed new class representatives moved to proceed pseudonymously on appeal and to seal their unredacted motion to add class representatives. The government did not oppose.
  • At issue on the motion was whether the proposed class representatives may proceed under pseudonyms and whether the unredacted motion to add them should be sealed, applying the Fifth Circuit’s Doe v. Stegall balancing test.
  • The court held that a “strong presumption against party pseudonymity” applies. The court weighed the three Stegall factors: (1) challenging governmental activity alone rarely justifies anonymity; (2) the proposed representatives did not show that proceeding under their real names would require disclosing information “of the utmost intimacy”—immigration status, asylum applications, and visible physical characteristics do not meet that standard; and (3) revealing their identities would not compel them to admit illegal conduct.
  • As to threatened harm, the proposed representatives expressed only “generalized concerns” about potential retaliation in Venezuela due to association with Tren de Aragua, with “zero ‘plausible predictions of possible future violence'” and no evidence of express threats. The court stated: “this court does not usually allow parties to proceed anonymously based on generalized concerns.”
  • The sealing motion was denied for substantially the same reasons, with the court emphasizing that “[j]udicial records belong to the American people; they are public, not private, documents,” and that the public’s interest is “particularly legitimate and important” where a public official is a party.

• W.M.M. v. Trump, 25-10534 (en banc merits disposition), appeal from N.D. Tex.
  • Elrod, C.J. (joined by Jones, Smith, Stewart, Richman, Southwick, Graves, Higginson, Willett, Ho, Duncan, Engelhardt, Wilson, Douglas, Ramirez, JJ.); Ho, J., concurring; Oldham, J. concurring; Haynes, J., concurring in judgment (w/o separate opinion); immigration, Alien Enemies Act, mootness, due process, en banc
  • Dismissing appeal as mooted after en banc oral argument.
  • After the Supreme Court in A.R.P. v. Trump, 605 U.S. 91 (2025), vacated the Fifth Circuit’s jurisdictional dismissal of the petitioners’ appeal from the district court’s denial of injunctive relief from President Trump’s invocation of the Alien Enemies Act to deport Venezuelan immigrants and remanded for the court to address (1) whether the named petitioners’ AEA claims warranted a preliminary injunction and (2) whether the Proclamation violated due process as to the putative class, the government removed all three named petitioners under the Immigration and Naturalization Act—not the AEA. No class was ever certified.
  • At issue before the en banc court was whether the appeal became moot after the remand from the U.S. Supreme Court given that all named petitioners have been removed (under the INA and not the AEA) and no class has been certified; whether the court should nonetheless reach the merits.
    • Original panel Sept. 2, 2025, decision after the Supreme Court remand involved 185 pages of majority, concurring, and dissenting opinions. The Sept. 30, 2025, granting of en banc rehearing involved highly unusual dissenting and concurring opinions from the grant of rehearing, by Judges Higginson and Ho, respectively. The Jan. 22, 2026, en banc argument was very animated.
  • Because the government removed all three named petitioners under the INA, “enjoining removal under the AEA would not prevent their removal.” The court held, therefore, that no effectual relief can be granted. The Supreme Court expressly stated the government “may remove the named plaintiffs or putative class members under other lawful authorities.”
  • While an exception to mootness exists for certified class actions, “no class exists or ever has existed in this case.” The court declined to add new class representatives on appeal and noted the district court is better positioned to make factual findings under Rule 23.
  • The denial of the motion to add representatives is without prejudice to any future action by the district court regarding class certification or amendment of the petition.
  • Judge Ho concurred, agreeing the case is moot, but contending the court should have reached the merits and affirmed the President’s Proclamation, as the government urged. Citing Munaf v. Geren, he wrote that “reaching the merits in cases like this is not just permissible, but ‘most appropriate,'” and that doing so would “terminate the litigation now” and “terminate future AEA cases.” On the substance, he argued that determining the existence of an invasion is “a quintessentially executive prerogative—not a judicial one,” relying on The Prize Cases, Justice Story’s Commentaries, and Ludecke v. Watkins. He quoted Ludecke: “‘Such great war powers may be abused,’ but ‘that is a bad reason for having judges supervise their exercise.'” On due process, he stated that the government’s provision of seven days’ notice “in ‘a language they understand, information about how to challenge their removal, [and] the option to request a list of available attorneys'” is “more than enough to satisfy due process.”
  • Judge Oldham concurred in the judgment, stating briefly that he would deny injunctive relief on the merits, citing his prior dissent in W.M.M. v. Trump, 154 F.4th 207, 240–312 (5th Cir. 2025), and noting that “to [deny or] reverse an injunction, there is no order of operations.” He concluded: “For those reasons—or because the ACLU no longer represents a party to this case—the request for injunctive must be denied.”

• United States v. Torres-Galaviz, 25-51052, appeal from W.D. Tex.
  • per curiam (Smith, Stewart, Oldham) (no oral argument), Oldham, J., dissenting; criminal, sentencing
  • Vacating supervised release conditions, and otherwise affirming sentence as modified.
  • The order is summary; no extended analysis accompanies the majority’s grant of the motion.
  • Judge Oldham dissented, reiterating his view that “this Court’s practice of summarily vacating supervised release conditions and entering judgment for the defendant is deeply flawed.” He noted the practice is “particularly troubling when the ‘plain error’ that necessitates the summary vacatur stems from an intervening Fifth Circuit decision that did not exist at the time of sentencing.”

Unpublished decisions

• United States v. Greim, 25-11136, appeal from N.D. Tex.
  • per curiam (King, Higginson, Douglas) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Deras-Velasquez v. Blanche, 25-60698, petition for review of BIA order
  • per curiam (King, Higginson, Douglas) (no oral argument), immigration
  • Denying Honduran citizens’ petition for review of BIA decision upholding an immigration judge’s denial of withholding of removal. They also raised a due-process claim alleging IJ bias.
  • Petitioners did not contest the BIA’s determination that they had waived the cognizability of their proposed particular social groups, which was a sufficient basis to deny their withholding claims. The due-process/bias argument was unexhausted under 8 U.S.C. § 1252(d)(1) and therefore not considered.

• Merchant v. Merchant, 25-60197, appeal from S.D. Miss.
  • per curiam (Stewart, Graves, Oldham) (no oral argument), Oldham, J., dissenting in part; breach of contract, attorneys’ fees, timeliness
  • In corrected opinion substituting original 6/22/2026 panel opinion, affirming determination that claims were frivolous, but vacating award of attorneys’ fees.
  • Plaintiffs Frank and Dorothy Merchant deeded their farm to Frank’s twin brother Billy to evade creditors and later sued to recover it. After losing at trial on unclean-hands grounds, the district court awarded Billy attorney fees under the Mississippi Litigation Accountability Act (MLAA). On appeal, plaintiffs challenged (1) the finding of frivolity supporting the fee award and (2) the amount of the award, including a $25,000 component for appellate attorney fees.
  • The court affirmed the district court’s determination that the lawsuit was frivolous—plaintiffs had failed to investigate their claims, advanced false and inconsistent theories, and misrepresented facts under oath, thereby manufacturing the factual disputes that allowed them to survive summary judgment. However, the court vacated the $25,000 appellate-fee award because Billy’s request for appellate fees was untimely under Fed. R. Civ. P. 54(d)(2)(B)(i), having been filed more than 14 days after final judgment, and no court order extended the deadline. The case was remanded for entry of a new judgment.
  • Judge Oldham dissented in part, and would have affirmed the entire fee award, including appellate fees. He wrote: “Billy Merchant spent nearly $200,000 defending against an utterly frivolous lawsuit. In my view, he should recover every penny.” He argued that applying Rule 54’s 14-day deadline mechanically produced an absurd result because Billy had no reason to request appellate fees before any appeal had been noticed. In his view, the district court’s deferral of ruling on Billy’s timely initial fee motion and its later award of appellate fees satisfied Rule 54(d)(2)(B).

• United States v. Hamilton, 25-40588, appeal from E.D. Tex.
  • per curiam (Jones, Ho, Wilson) (no oral argument), criminal, sentencing
  • Affirming five-level enhancement for sentence on firearms violation.
  • Defendant pled guilty to receipt or possession of an unregistered firearm and challenged a five-level sentencing enhancement under U.S.S.G. § 2K2.1(b)(5)(C), which applies when the defendant knew or had reason to believe that her conduct would result in receipt of firearms by someone who intended to use or dispose of them unlawfully.
  • The district court reasonably inferred that Hamilton had reason to believe the firearms were being purchased for an unlawful purpose because, among other things, she was paid to clandestinely transfer 22 firearms and leave them in a hotel room. The enhancement was not clear error.

• Astran v. Austin Police Department, 26-50346, appeal from W.D. Tex.
  • per curiam (Clement, Engelhardt, Wilson) (no oral argument), § 1983
  • Affirming without analysis (under Rule 47.6) dismissal of claims against the Austin Police Department, Pflugerville Police Department, City of Austin, City of Pflugerville, and Travis County Medical Examiner Office.