Take the Fifth

Designated for publication

• Thomas v. Bruss, 25-20590, appeal from S.D. Tex.
  • per curiam (King, Smith, Ramirez) (oral argument), qualified immunity
  • Reversing denial of qualified immunity, and rendering judgment dismissing claims against officer defendants.
  • In February 2021, Harris County Constable’s officers responded to a 911 call about two men screaming outside a caller’s home; the caller reported having a weapon. Canine-handling Officer Johnson arrived first and attempted to control the two suspects, Kerry Thomas and Raphael Gray. Thomas refused to comply with commands and repeatedly yelled “kill me!” and challenged officers to shoot him. Officer Bruss arrived two minutes in and focused on arresting Gray, the driver, while Officer Schultz arrived roughly four minutes in, positioning himself behind Johnson with a taser. After Thomas failed to comply with repeated commands to stand, Johnson warned he would release the police dog and then did so; the dog bit Thomas on the right upper arm for approximately 43 seconds while Johnson handcuffed Thomas, after which Johnson removed the dog. Neither Bruss nor Schultz directly participated in the canine deployment—Bruss was searching the suspects’ vehicle during part of the bite and later told Johnson to remove the dog, while Schultz silently watched and then called EMS.
  • At issue on appeal was whether Officers Bruss and Schultz were entitled to qualified immunity on Thomas’s 42 U.S.C. § 1983 bystander-liability claim for failure to intervene in Officer Johnson’s use of the police dog. Specifically, whether the law was “clearly established” that bystander officers had a constitutional duty to intervene during a brief, canine-assisted apprehension under these circumstances.
  • The court assumed without deciding that there might have been an underlying bystander violation by Bruss and Schultz, and proceeded directly to the “clearly established law” prong of qualified immunity. Applying the standard that “pre-existing law must dictate, that is, truly compel (not just suggest or allow or raise a question about), the conclusion for every like-situated, reasonable government agent,” the court found that Thomas failed to identify any controlling authority or robust consensus of persuasive authority establishing a duty for bystander officers to intervene during a canine-assisted apprehension.
  • The court systematically canvassed every case cited by Thomas and the district court—including Carroll, Trammel, Deville, Hamilton, Joseph, Hale, Cooper, and Sligh—and found each materially distinguishable. Notably, the court emphasized that the only canine cases (Cooper and Sligh) either did not address bystander liability at all or expressly granted qualified immunity to bystander officers, quoting Sligh: “‘Cooper is wholly inapplicable to a bystander liability theory.'” Meanwhile, the bystander cases involved dramatically different facts—prolonged beatings, active encouragement, or large melees—none of which resembled two late-arriving officers passively witnessing a 43-second canine bite during a dynamic, nighttime encounter with an armed-suspect report.
  • The court stressed that this was “a dynamic situation with multiple suspects, an unknown firearm, an invitation to die, and a 43-second canine assisted arrest, where the officers only passively witnessed the unfolding events and never affirmatively acquiesced in the conduct.” The court noted that the 43-second duration, while “undoubtedly painful and prolonged from Thomas’s perspective,” was “a relatively short period of time for a bystander officer mentally to process the situation and then formulate a reaction.” The panel concluded: “In sum, this is not close by QI standards,” invoking the doctrine’s purpose of not “embark[ing] upon improvident campaigns of second-guessing by lawyers safely ensconced in their offices, chilling officers’ actions in the field reasonably aimed at protecting the public.”

Unpublished decision

• Jennings v. Vandergriff Honda, 25-11034, appeal from N.D. Tex.
  • per curiam (Smith, Haynes, Engelhardt) (no oral argument), arbitration, costs
  • Affirming dismissal of plaintiff’s petition to vacate an arbitration award; but vacating award of costs to defendant.
  • At issue on appeal was whether a federal district court has subject-matter jurisdiction over a petition to vacate an arbitration award under § 10 of the Federal Arbitration Act (FAA) when the petitioner identifies no independent basis for federal jurisdiction; and whether costs may be taxed against a party when a case is dismissed for lack of jurisdiction.
  • The court held that under Badgerow v. Walters, 596 U.S. 1 (2022), a party seeking to vacate an arbitral award under FAA § 10 must identify an independent grant of federal jurisdiction beyond § 10 itself. Jennings failed to bring her underlying federal claims before the district court and instead asked only to vacate the award, meaning the underlying dispute was “not now at issue.” The court reversed the taxation of costs, however, because a dismissal for lack of jurisdiction produces no “prevailing party” eligible for costs under Federal Rule of Civil Procedure 54(d)(1), and Jennings had been granted in forma pauperis status.

• United States v. Dominguez, 25-11160, appeal from N.D. Tex.
  • per curiam (Jones, Southwick, Willett) (oral argument withdrawn), criminal, mootness, ripeness, supervised release
  • Dismissing appeal as moot as to sentence, affirmed as to SORNA classification, and dismissed as unripe as to supervised-release condition.
  • At issue on appeal was (1) whether a defendant who stipulated to a Tier III sex-offender classification under SORNA may challenge that classification on appeal; (2) whether the appeal was moot after the defendant completed his prison term; and (3) whether a supervised-release condition requiring the defendant to take prescribed mental-health medication was ripe for review.
  • The court found the appeal was not moot because the collateral consequences of a Tier III classification (lifetime registration) kept the case alive. On the merits, the court held that Dominguez had invited the alleged error by affirmatively stipulating to his Tier III classification in his factual resume and confirming it at his guilty-plea hearing. Because Dominguez failed to demonstrate manifest injustice — having received a sentence at the bottom of the Guidelines range and having benefited from his plea bargain — the court affirmed the classification. The challenge to the supervised-release medication condition was dismissed without prejudice as unripe because no doctor had actually prescribed medication under the condition.

• United States v. Smith, 25-20500, appeal from S.D. Tex.
  • per curiam (Willett, Duncan, Engelhardt) (no oral argument), criminal, sentencing
  • Vacating sentence and remanding for resentencing.
  • At issue on appeal was whether the district court plainly erred by counting the defendant’s two juvenile diversionary dispositions as prior sentences and assessing criminal history points under U.S.S.G. § 4A1.1(c).
  • The court agreed with both parties that the district court plainly erred under U.S.S.G. § 4A1.2(f). Because the defendant was sentenced under an incorrect advisory Guidelines range and the district court was silent on what it would have done under the correct range, the error affected Smith’s substantial rights under Molina-Martinez v. United States, 578 U.S. 189 (2016). The court vacated the sentence and remanded for resentencing.

• Boudreaux v. Schlumberger Technology Corp., 25-30436, appeal from W.D. La.
  • per curiam (Smith, Haynes, Engelhardt) (oral argument withdrawn), Fair Labor Standards Act
  • Affirming application of overtime exemption and decertification of FLSA collective action.
  • At issue on appeal was (1) whether the FLSA salary-basis test for overtime exemption was satisfied under 29 C.F.R. § 602(a) or § 604(b) for Schlumberger’s hybrid pay plan (base salary plus day rate) for Directional Drillers; (2) whether the district court properly decertified the FLSA collective action; and (3) whether dismissed opt-in plaintiffs were entitled to equitable tolling of the FLSA statute of limitations.
  • The court held that the recently decided Guilbeau v. Schlumberger Technology Corp., 178 F.4th 922 (5th Cir. 2026), involving the same defendant and same pay plan, was controlling and foreclosed the plaintiffs’ argument that § 604(b) rather than § 602(a) applied. Because Schlumberger’s compensation included a predetermined sum calculated on a weekly basis and not subject to reduction for variations in work, § 602(a) was satisfied, and the employees were exempt from overtime. The court also affirmed decertification of the collective action and rejected the plaintiffs’ request for a blanket equitable-tolling rule for dismissed opt-in plaintiffs, noting that equitable tolling is a discretionary, fact-specific doctrine and the opt-in plaintiffs made no effort to show how their circumstances satisfied the two-prong standard.

• United States v. Deeb, 25-30576, appeal from W.D. La.
  • per curiam (Haynes, Graves, Ramirez) (no oral argument), criminal, sentencing
  • Affirming 244-month sentence.
  • At issue on appeal was (1) whether the government breached the plea agreement by failing to move for a one-level reduction under U.S.S.G. § 3E1.1(b); (2) whether a four-level leadership enhancement under U.S.S.G. § 3B1.1(a) was properly applied; (3) whether the criminal history score was correctly calculated; and (4) whether a within-Guidelines sentence of 244 months was substantively unreasonable.
  • Deeb failed to show the alleged plea-agreement breach affected his substantial rights. The leadership enhancement was not clearly erroneous because treating the money-laundering couriers as participants was plausible on the record. Any error in the criminal history score did not affect substantial rights, and Deeb failed to show the sentence was substantively unreasonable.

• United States v. Burrell, 25-40740, appeal from E.D. Tex.
  • per curiam (Willett, Duncan, Engelhardt) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Smith v. Locker, 25-50862, appeal from W.D. Tex.
  • per curiam (Stewart, Higginson, Ho) (no oral argument), municipal liability, supervisory liability, qualified immunity
  • Affirming dismissal of municipal liability and other claims against officials.
  • At issue on appeal was (1) whether the plaintiff adequately pleaded Monell municipal-liability claims (failure to train, supervise, discipline, screen, and unconstitutional policy) against Guadalupe County; (2) whether a supervisory-liability claim against a deputy was adequately briefed on appeal; (3) whether qualified immunity shielded deputies from a malicious-prosecution claim; (4) whether summary judgment was proper on the false-arrest claim under the independent-intermediary doctrine; and (5) whether the district court abused its discretion in denying a motion to strike.
  • The Monell claims failed because Smith alleged only his own encounter and offered no facts suggesting a pattern of similar violations, nor did he invoke the single-incident exception. The supervisory-liability, false-arrest, and motion-to-strike challenges were all forfeited due to inadequate appellate briefing. The malicious-prosecution claim failed because Thompson v. Clark, 596 U.S. 36 (2022), decided after the 2021 conduct at issue, could not clearly establish the law for qualified-immunity purposes.
  • The court also admonished plaintiff’s counsel for repeatedly citing authorities incorrectly, making baseless accusations against the court, and using derogatory rhetoric, warning that future filings of that nature may warrant sanctions.

• Tazo v. Blanche, 25-60595, petition for review of BIA order
  • per curiam (Jones, Southwick, Willett) (no oral argument), immigration
  • Denying petition for review of BIA order denying asylum, withholding of removal, or protection under the CAT.
  • At issue on petition was (1) whether the BIA’s adverse credibility determination was clearly erroneous; (2) whether the petitioner established eligibility for asylum and withholding of removal; and (3) whether the BIA erred in denying relief under the Convention Against Torture (CAT).
  • The adverse credibility determination was supported by substantial evidence, including inconsistencies about the petitioner’s birthplace (Bamenda vs. Batibo), the date he joined the SCNC (2015 vs. 2016), and conflicting accounts of how he lost his passport. The petitioner’s explanations — primarily blaming language difficulties — were undermined by the record showing he chose English as his preferred language and submitted a handwritten English declaration. Because the adverse credibility finding was fatal to asylum and withholding of removal, those claims failed. As to CAT, the BIA properly considered and rejected the corroborating affidavits and country-conditions evidence, finding that the petitioner had not produced medical records or photographs documenting his injuries and had not established an individualized risk of torture beyond generalized country conditions.

• Trimble v. Mullin, 26-10028, appeal from N.D. Tex.
  • per curiam (Stewart, Higginson, Ho) (no oral argument), employment discrimination
  • Affirming dismissal of employment discrimination claims.
  • At issue on appeal was whether the district court abused its discretion in dismissing the pro se plaintiff’s federal employment-discrimination suit for insufficient service of process under Federal Rule of Civil Procedure 12(b)(5) and Rule 4(i)(1)(A)(ii).
  • Trimble, a disabled veteran suing FEMA over an allegedly discriminatory hiring decision, failed to properly serve the civil-process clerk at the U.S. Attorney’s Office as required by Rule 4(i). She instead addressed service to “U.S. Atty for Northern District of TX,” and the package was signed for by a non-employee of that office. Trimble repeatedly refused FEMA counsel’s offers to accept service and instead filed numerous requests that the Clerk enter a $50 million default judgment. The court held that Trimble failed to show good cause for her noncompliance, noting that pro se status and ignorance of the rules do not excuse a failure to serve properly.

• United States v. Dexter, 26-10041, appeal from N.D. Tex.
  • per curiam (Elrod, Southwick, Ramirez) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.