Take the Fifth

Designated for publication

• Breaux v. Worrell, 24-30097, appeal from W.D. La.
  • Higginbotham, J. (Higginbotham, Willett, Ho) (oral argument prior to certification to state supreme court), statutory immunity, personal tort
  • Upon receiving state supreme court opinion after June 25, 2025, certification of question regarding statutory immunity, reversing district court’s ruling that defendant had immunity and remanding for further proceedings.
  • The Breauxs and the Blanchards sued Kevin Worrell, the City of Wilson, North Carolina, and the City’s insurers after an incident that arose while Worrell was working in Louisiana under an inter-city emergency-assistance agreement. In January 2024, the district court granted summary judgment for the defendants, holding that Worrell and the City of Wilson were entitled to statutory immunity under Louisiana’s Homeland Security and Emergency Assistance and Disaster Act (LHSEADA). On appeal, the Fifth Circuit certified two questions to the Louisiana Supreme Court: (1) whether an out-of-state city employee working under an emergency-assistance agreement qualifies as a “representative” of Louisiana or one of its political subdivisions under La. R.S. 29:735, and (2) whether a person “engaging in emergency preparedness and recovery activities” under the statute while commuting from the recovery site to his lodging.
  • At issue on appeal was whether an employee of an out-of-state city, working under an emergency-assistance agreement with a Louisiana municipality, is entitled to immunity under LHSEADA.
  • On April 10, 2026, the Louisiana Supreme Court answered the first certified question by holding that Worrell “would not be considered to have been a ‘representative’ of any Louisiana governmental entity . . . for purposes of LHSEADA immunity.” Because that threshold failure alone disqualified Worrell from immunity under the statute, the Louisiana Supreme Court declined to reach the second certified question concerning commuting activities. In light of the Louisiana Supreme Court’s decision, the Fifth Circuit reversed the district court’s grant of summary judgment and remanded for further proceedings.

• Eriakha v. University of Mississippi, 26-60007, appeal from N.D. Miss.
  • Willett, J. (Jones, Southwick, Willett) (no oral argument); Eleventh Amendment, sovereign immunity, First Amendment, equal protection, due process, supplemental jurisdiction, consolidation, mootness
  • Affirming dismissal of constitutional and other claims, though modified such that sovereign immunity dismissals would be without prejudice.
  • Twin brothers Ehiremen Bennard Eriakha and Omokhodion Alfred Eriakha, Black international doctoral students at the University of Mississippi’s Department of Pharmacy Administration, had a series of disagreements with faculty over mentoring arrangements, program requirements, and academic sanctions. Bennard objected when the Department assigned a co-mentor and refused to attend an in-person meeting, insisting on a “safe, supportive, and non-coercive mentoring environment.” Despite multiple warnings and deadline extensions, Bennard refused to complete a mandatory Abilities Transcript, resulting in his downgrade to provisional-student status, which also made him ineligible for a graduate assistantship and potentially jeopardized his F-1 immigration status. The brothers, proceeding pro se, sued the University and several faculty members asserting claims under the First and Fourteenth Amendments and Mississippi contract law. The district court dismissed Bennard’s claims; Alfred’s appeal was later dismissed for failure to prosecute.
  • At issue on appeal was (1) whether the Eleventh Amendment barred Bennard’s claims against the University and certain official-capacity defendants; (2) whether Bennard plausibly alleged First Amendment retaliation, Fourteenth Amendment equal-protection and due-process violations; (3) whether the individual-capacity defendants were entitled to qualified immunity; (4) whether the district court properly declined supplemental jurisdiction over state-law contract claims; and (5) whether the district court erred in consolidating the brothers’ cases and denying injunctive-relief motions as moot.
  • Reasoning — Sovereign Immunity: The University of Mississippi, as an arm of the state, is immune from suit under the Eleventh Amendment, as are official-capacity claims against faculty member Huang, who neither initiated nor ratified the challenged actions. The Ex parte Young exception permitted official-capacity claims to proceed only against Yang, Barnard, and Kluck, who had direct involvement in Bennard’s downgrade. Bennard conceded that his state-law contract claims against official-capacity defendants were properly dismissed on sovereign-immunity grounds. However, because sovereign-immunity dismissals are jurisdictional, the court held they must be entered without prejudice—the “one mild correction” the panel applied.
  • Reasoning — Constitutional Claims: On the First Amendment retaliation claim, the court found causation lacking: Bennard’s objections could not explain the co-mentorship decision because the co-mentor was assigned before he objected, and the chronology of his refusal to complete the Abilities Transcript—repeated warnings, deadline extensions, and a clear path to compliance—undermined any inference of retaliatory motive. As the court observed: “Chronology matters, but this chronology hurts Bennard rather than helps him.” On equal protection, Bennard “points to no similarly situated student who was treated better, and to no statement, policy, pattern, or other circumstance suggesting discriminatory purpose. At most, he alleges different treatment. He does not allege plausible discrimination.” On due process, even assuming a protected interest in continued graduate study, Bennard received all the process the Constitution requires for an academic decision: faculty informed him of their dissatisfaction, extended his deadlines, warned him of consequences, and gave him a defined path back to full standing. The court also rejected the argument that potential immigration consequences created a property interest, noting that “aliens residing in the United States on a visa do not have a constitutionally protected property right to remain in the country.” Qualified immunity independently barred the personal-capacity claims, as Bennard identified no controlling authority or robust consensus of persuasive authority establishing that the faculty’s conduct was unlawful.
  • Reasoning — Remaining Issues: The district court properly declined supplemental jurisdiction over state-law contract claims after dismissing all federal claims, consistent with the Fifth Circuit’s “general rule . . . to dismiss state claims when the federal claims to which they are pendent are dismissed.” Consolidation of the brothers’ cases was proper under Rule 42(a) given the overlapping facts, similar claims, and common defendants. The court closed with a memorable line: “Academic disputes may carry serious consequences. But serious consequences do not transform academic disputes into constitutional ones.”

Unpublished decisions

• Republican National Committee v. Wetzel, 24-60395, appeal from S.D. Miss.
  • per curiam (Ho, Duncan, Oldham) (oral argument prior to Supreme Court remand); election law
  • On remand from the U.S. Supreme Court after the October 25, 2024, panel decision, affirming summary judgment in favor of state of Mississippi’s election law allowing for receipt up to five days after election day of ballots that had been cast (i.e., mailed and postmarked) by election day.
  • The court affirmed the district court’s judgment in light of the Supreme Court’s decision in Watson v. RNC, 146 S. Ct. 2165 (2026).

• United States v. Armstead, 25-10838, appeal from N.D. Tex.
  • per curiam (Jones, Ho, Wilson) (no oral argument), criminal, witness testimony, sentencing
  • Affirming conviction and 2,940-month sentence on production and attempted production of child pornography.
  • Armstead was convicted by a jury of five counts of production and attempted production of child pornography (18 U.S.C. § 2251(a)), two counts of attempted production, and seven counts of cyberstalking. He received consecutive sentences totaling 2,940 months of imprisonment. On appeal, he argued (1) he was denied due process because a law enforcement agent testified that images constituted child sexual abuse material, (2) the district court procedurally erred by failing to adequately explain its reasons for imposing consecutive sentences, and (3) § 2251(a) is facially unconstitutional.
  • Under plain error review, Armstead failed to show any error was clear or obvious, and the overwhelming evidence meant any error did not affect his substantial rights. The district court provided extensive reasons for consecutive sentences. The facial constitutionality challenge to § 2251(a) was foreclosed by binding precedent.

• Eytalis v. Texas Association of Realtors, 25-10970, appeal from N.D. Tex.
  • per curiam (Davis, Jones, Ho) (no oral argument), antitrust, supplemental jurisdiction
  • Affirming dismissal of antitrust claims.
  • Eytalis appealed the dismissal under Rule 12(b)(6) of her Third Amended Complaint, which alleged federal antitrust claims against realtor associations and a multiple listing service. She also challenged the district court’s decision to decline supplemental jurisdiction over state-law claims and its overruling of her objections to the magistrate judge’s findings.
  • Eytalis forfeited her Clayton Act claim by failing to brief it. The conclusory allegations in her complaint were insufficient to establish antitrust injury, a required element of standing under the Sherman Act. The district court did not abuse its discretion by declining supplemental jurisdiction, and it properly conducted a de novo review of the magistrate judge’s contested findings.

• United States v. Calhoun, 25-11157, appeal from N.D. Tex.
  • per curiam (Jones, Ho, Wilson) (no oral argument), criminal, Second Amendment
  • Affirming conviction of felon-in-possession.
  • Under plain error review, Calhoun failed at minimum to demonstrate that any error was clear or obvious.

• United States v. Castellano-Martinez, 25-11228, appeal from N.D. Tex.
  • per curiam (Higginbotham, Jones, Oldham) (no oral argument), criminal, sentencing
  • Affirming conviction and enhanced sentence for illegal reentry.

• Holloway v. Polk, 25-11262, appeal from N.D. Tex.
  • per curiam (Haynes, Graves, Ramirez) (no oral argument), § 1983, amendment
  • Affirming dismissal of claims for injunctive relief.
  • Holloway appealed the denial of injunctive relief, the dismissal with prejudice of her amended complaint, and a finding that she is a vexatious litigant subject to a pre-filing injunction. She filed various motions requesting judicial notice and a supplemental brief.
  • The district court did not err in concluding Holloway failed to state a claim, and dismissal with prejudice was appropriate because she had multiple opportunities to present her best case. Holloway failed to adequately brief her injunctive-relief challenge. The magistrate judge’s report provided the required notice for the pre-filing injunction, and the district court implicitly considered the relevant factors.

• United States v. Provost, 25-20055, appeal from S.D. Tex.
  • per curiam (Stewart, Higginson, Ho) (oral argument withdrawn), criminal, sentencing
  • Vacating sentence and remanding for resentencing.
  • Provost pleaded guilty to receiving and possessing child pornography. At his original sentencing, the court applied a five-level distribution enhancement, which the Fifth Circuit vacated and remanded by agreement of the government. On resentencing, the district court applied a two-level enhancement under U.S.S.G. § 2G2.2(b)(3)(F) for knowingly distributing child pornography. Provost challenged that enhancement, again argued for a two-level sentence reduction under § 2G2.2(b)(1), and contended the court failed to properly pronounce the terms of supervised release.
  • The government conceded the two-level distribution enhancement was erroneous because, under United States v. Lawrence, there was insufficient evidence that Provost knew his use of Freenet software caused child pornography to be distributed. The court held that Provost’s challenge to the denial of the § 2G2.2(b)(1) reduction was forfeited because he failed to raise it in his initial appeal. The supervised-release issue was mooted by the vacatur.

• Valadez v. City of Jacinto City, 25-20309, appeal from S.D. Tex.
  • per curiam (Elrod, Higginson, Ramirez) (oral argument), § 1983, municipal liability, supervisory liability, personal torts, amendment, supplemental jurisdiction
  • Affirming dismissal of federal constitutional-based claims, but vacating dismissal of state tort claims and remanding for addressing supplemental jurisdiction.
  • After being seriously injured when a truck fleeing a police pursuit ran a red light and struck her vehicle, Valadez sued the pursuing officer, the police chief, and the City under 42 U.S.C. § 1983 (substantive due process, Monell liability, negligent hiring/supervision/training/retention) and under the Texas Tort Claims Act (TTCA) for negligence.
  • The § 1983 substantive due process claim failed because, under County of Sacramento v. Lewis, only an intent to harm — not mere deliberate indifference or recklessness — gives rise to liability in the context of a high-speed police chase, and Valadez did not allege intent to harm. The Monell and supervisory liability claims likewise failed because they require an underlying constitutional violation. The court declined to recognize the state-created danger doctrine. However, the court vacated the dismissal of the TTCA negligence claim because no federal claim remained and the district court had not expressly addressed its supplemental jurisdiction. The denial of leave to amend was affirmed as the request was a bare, unsupported request in an opposition to a motion to dismiss.

• United States v. Resendez-Hernandez, 25-40598, c/w 25-40600, appeal from S.D. Tex.
  • per curiam (Clement, Haynes, Ramirez) (no oral argument), criminal, guilty plea, sentencing
  • Dismissing appeal as to guilty-plea challenge, and otherwise affirming sentence.
  • Resendez-Hernandez pleaded guilty to illegal reentry (8 U.S.C. § 1326) and aiding and abetting the assault of correctional officers (18 U.S.C. § 111). He challenged his guilty plea as unknowing and involuntary, and argued the district court erred in applying sentencing enhancements for use of a dangerous weapon and for the level of bodily injury inflicted on the officers.
  • The guilty-plea challenge was dismissed because Resendez-Hernandez limited his notice of appeal to his “Sentence Only,” thereby waiving any challenge to his conviction. On the merits of the sentencing challenges, the court affirmed: a sock containing a hard object swung at someone’s head qualifies as a dangerous weapon, and the officers’ injuries (one requiring stitches, the other suffering facial swelling from being kicked and punched) supported the four-level increase.

• Albert v. Price, 26-50161, appeal from W.D. Tex.
  • per curiam (Jones, Ho, Wilson) (no oral argument), § 1983, IFP, recusal
  • Affirming appeal from dismissal of § 1983 claim and otherwise dismissing appeal as to ancillary issues as moot.
  • Albert filed a § 1983 complaint alleging the Travis County Clerk’s office violated his due process rights by obstructing access to records. The district court denied his motions to proceed in forma pauperis and to recuse the assigned judge, and ultimately dismissed the case for failure to pay the filing fee.
  • The court found no reversible error in the denial of IFP status or dismissal for failure to pay the filing fee. The recusal challenge was rendered moot because Judge Albright resigned from the bench.

• Holman v. Williamson County, 25-50398, appeal from W.D. Tex.
  • per curiam (Jones, Ho, Wilson) (no oral argument), prisoner suit
  • Affirming dismissal of Texas state prisoner’s § 1983 claim.
  • Texas prisoner Holman appealed the dismissal of his wide-ranging 42 U.S.C. § 1983 claims, which included challenges related to sovereign, judicial, and prosecutorial immunity, grievances, HIPAA, access to courts, deliberate indifference to medical needs, retaliation, equal protection, and municipal liability.
  • The court found no error in the district court’s application of sovereign, judicial, and prosecutorial immunity or in the dismissal of any of Holman’s numerous claims. Additional arguments were deemed abandoned for failure to brief them. All pending motions were denied.

• United States v. Gomez Mendoza, 25-50649, appeal from W.D. Tex.
  • per curiam (King, Higginson, Douglas) (no oral argument), criminal, sentencing
  • Affirming sentence on conviction of conspiracy to possess with intent to distribute methamphetamine.
  • Defendant argued the district court erred by ordering his sentence to run consecutively to a prior sentence instead of applying U.S.S.G. § 5G1.3(b) to run concurrently, failed to adequately explain the sentence, and raised an ineffective assistance of counsel claim.
  • The district court did not plainly err in ordering consecutive sentences because it implicitly found the prior conviction was not relevant conduct. The sentence carried a presumption of reasonableness that Gomez Mendoza failed to rebut. The ineffective assistance claim was declined without prejudice to collateral review because the record was insufficiently developed.

• United States v. Maldonado-Flores, 25-50805, appeal from W.D. Tex.
  • per curiam (Higginbotham, Smith, Ho) (no oral argument), criminal, sentencing
  • Affirming 200-month sentence on conviction of illegal reentry.
  • Maldonado-Flores pleaded guilty to illegal reentry (8 U.S.C. § 1326) and received an above-guidelines sentence of 200 months. He argued for the first time on appeal that his prior Texas robbery conviction no longer qualifies as an aggravated felony under § 1326(b)(2), that the district court failed to adequately explain its sentence, that it improperly relied on facts from dismissed state charges, and that the sentence was substantively unreasonable.
  • Under plain error review, Maldonado-Flores failed to cite binding authority supporting his aggravated-felony argument. He likewise failed to demonstrate plain error in the court’s explanation of its sentence or reliance on facts underlying dismissed charges. The 200-month sentence — 95 months above the top of the guidelines range — was substantively reasonable because the court relied on appropriate § 3553(a) factors.

• United States v. Alarcon-Sanchez, 25-50810, appeal from W.D. Tex.
  • per curiam (Davis, Stewart, Duncan) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• McNeill v. Teamsters Local 577, 26-10067, appeal from N.D. Tex.
  • per curiam (Stewart, Richman, Haynes) (no oral argument), labor law, res judicata
  • Dismissing as frivolous appeal from dismissal of NLRA claim as barred by res judicata.
  • McNeill, a pro se plaintiff, alleged that Teamsters Local 577 breached its duty of fair representation under the National Labor Relations Act during a 2021 meeting about his vaccine-mandate exemption request. The district court dismissed the 2025 suit as barred by res judicata, finding it duplicated a 2023 suit the court had already dismissed. McNeill moved for leave to proceed IFP on appeal.
  • IFP motion denied and appeal dismissed as frivolous. Both the 2023 and 2025 suits were based on the same nucleus of operative facts — the same October 2021 meeting — and McNeill could not relitigate the same facts under different legal theories. His equitable-tolling argument was inapposite because the case was not dismissed as time-barred, and challenges to rulings in the 2023 case were not properly before the court.

• United States v. Manama Perez, 26-10085, appeal from N.D. Tex.
  • per curiam (Jones, Ho, Wilson) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• United States v. Watkins, 26-10158, appeal from N.D. Tex.
  • per curiam (Haynes, Graves, Ramirez) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• United States v. Sanchez Gonzalez, 26-50056, appeal from W.D. Tex.
  • per curiam (Haynes, Graves, Ramirez) (no oral argument), criminal, supervised release
  • Affirming supervised release conditions in sentence.
  • Sanchez Gonzalez pleaded guilty to making a false statement to a federal agency and challenged a supervised-release condition that authorized his probation officer to require him to notify a person if the officer determines he poses a risk to that person. He argued the condition improperly delegates judicial authority, but conceded the issue is foreclosed by circuit precedent.
  • Affirmed via summary affirmance. The issue was foreclosed by United States v. Mejia-Banegas, 32 F.4th 450 (5th Cir. 2022).

• United States v. Fairley, 26-60047, appeal from S.D. Miss.
  • per curiam (Higginbotham, Jones, Oldham) (no oral argument), criminal, Second Amendment, Commerce Clause
  • Affirming firearms conviction.
  • Fairley pleaded guilty to possession of a firearm after felony conviction (18 U.S.C. § 922(g)(1)) and was sentenced to 42 months. He argued that § 922(g)(1) is unconstitutional on its face and as applied under the Second Amendment based on New York State Rifle & Pistol Ass’n, Inc. v. Bruen, and that the statute exceeds Congress’s Commerce Clause authority.
  • Fairley conceded his arguments are foreclosed by United States v. Diaz, 116 F.4th 458 (5th Cir. 2024), and United States v. Giglio, 126 F.4th 1039 (5th Cir. 2025).