Take the Fifth

Designated for publication

• Sahs v. Loyola University New Orleans, 25-30263, appeal from E.D. La.
  • Richman, J. (Richman, Higginson, Oldham) (oral argument), Oldham, J., dubitante; appellate jurisdiction, anti-SLAPP, defamation
  • Affirming denial of motion to strike under Louisiana’s anti-SLAPP statute.
  • Luke Sahs, a former student at Loyola University New Orleans, sued the university asserting defamation and related claims after a series of events stemming from a school-sponsored trip to Honduras. A fellow student reported Sahs to police for stalking; the incident report included allegations about bomb-building capabilities and chemical agents. A Loyola police sergeant spoke to a student reporter, whose article stated that “Loyola police said Sahs was in possession of chemical materials that can be used to kill people” and that he would face “terroristic threat charges”. The criminal stalking case was dismissed in January 2024, and no weapons or chemical charges were ever filed. Sahs sued Loyola, and Loyola filed a special motion to strike under Louisiana’s anti-SLAPP statute, Article 971. The district court denied the motion, holding that Article 971 does not apply in federal court.
  • At issue on appeal was (1) whether the Fifth Circuit had interlocutory appellate jurisdiction over the denial of an anti-SLAPP motion under the collateral-order doctrine; and (2) whether Louisiana’s anti-SLAPP statute, Article 971, applies in federal diversity cases, or whether it conflicts with Federal Rules of Civil Procedure 12 and 56.
  • The court affirmed the district court’s denial, holding that Louisiana’s anti-SLAPP statute does not apply in federal court because it conflicts with Federal Rules 12 and 56.
  • The court first addressed jurisdiction, concluding it was bound by its prior decision in Henry v. Lake Charles American Press (2009) under the rule of orderliness, which held that denial of an anti-SLAPP motion is an immediately appealable collateral order — even while acknowledging that other circuits, including the Ninth Circuit sitting en banc, have disagreed. The court noted the circuit split on the issue but declined to revisit Henry.
  • On the merits, the court applied the framework from Shady Grove Orthopedic Associates v. Allstate Insurance Co., the Supreme Court’s recent decision in Berk v. Choy (2026), and its own precedent in Klocke v. Watson. It concluded that Article 971 “answers the same question as Rules 12 and 56: when can an action be dismissed before trial?” and imposes additional requirements beyond the federal rules. Article 971’s burden-shifting framework requires less of the movant than Rule 56, forcing a plaintiff to demonstrate a genuine issue of material fact based only on a prima facie showing by the defendant that the activity was constitutionally protected — unlike Rule 56, which requires the movant to show there is no genuine dispute of material fact. The court further held that Article 971’s automatic stay of discovery “conflicts with Rule 56,” citing the reasoning in Tah v. Global Witness Publishing that discovery limits conflict with Rule 56, “under which full discovery is the norm, not the exception.”
  • The court also rejected Loyola’s reliance on Henry, noting that “[i]n cases decided after Henry, our court has suggested that its cursory statement regarding the governing law did not constitute a holding that binds future panels” and that both parties in Henry had assumed Article 971 applied without briefing the issue. Finally, citing Klocke, the court confirmed that Rules 12 and 56 are valid under the Rules Enabling Act and therefore preempt Article 971.
  • Judge Oldham filed a dubitante opinion, agreeing that Article 971 does not apply in federal court, but writing separately to express doubt about the court’s interlocutory jurisdiction. He observed: “It is unclear to me . . . how we have interlocutory appellate jurisdiction. . . . Loyola University’s anti-SLAPP motion, by contrast, is the merits of the action.” He further noted the inconsistency that federal courts do not have interlocutory jurisdiction to review denials of motions under Rules 12 and 56, so “it is unclear how or why we would have interlocutory jurisdiction to review the denial of state-law motions that displace those Federal Rules.” He pointed to the Ninth Circuit’s recent en banc decision in Gopher Media v. Melone, which dismissed for lack of jurisdiction on this very basis.

• Texas v. U.S. Department of the Interior (Lesser Prairie-Chicken), 25-50747, appeal from W.D. Tex.
  • Wilson, J. (Stewart, Graves, Wilson) (oral argument), Endangered Species Act, intervention, standing
  • Reversing denial of conservation groups’ motion to intervene, but holding conservation groups lacked appellate standing, and remanding for further proceedings.
  • In November 2022, the U.S. Fish and Wildlife Service (FWS) promulgated a final rule listing the lesser prairie-chicken — a species of grouse native to the southwestern United States — as two distinct population segments: the Northern segment as “threatened” and the Southern segment as “endangered.” The listing was challenged in 2023 by states (Texas, Kansas, Oklahoma) and industry groups (petroleum and cattle associations). The Center for Biological Diversity (CBD) and the Texas Campaign for the Environment (TCE) — conservation groups, with CBD being one of the original petitioners for the listing — moved to intervene, but the district court denied intervention, finding the Government would adequately represent their interests. Following the change in presidential administrations in January 2025, executive orders signaled a shift in federal environmental priorities. The Government ultimately moved for voluntary vacatur and remand of the Listing Rule, conceding that FWS had improperly applied the Distinct Population Segment (DPS) Policy. The Conservation Groups filed a second motion to intervene, which the district court denied as untimely; in the same order, the court vacated the Listing Rule and remanded to the agency.
  • At issue on appeal was (1) whether the Conservation Groups’ second motion to intervene was timely under Federal Rule of Civil Procedure 24(a); (2) whether the Government adequately represented the Conservation Groups’ interests; and (3) whether the Conservation Groups had appellate standing to challenge the vacatur and remand of the Listing Rule.
  • The Fifth Circuit reversed the denial of the Conservation Groups’ second motion to intervene, finding the district court abused its discretion in holding the motion untimely and that all other elements for intervention of right were satisfied. However, the court held that the Conservation Groups lacked appellate standing to challenge the vacatur and remand of the Listing Rule and therefore declined to reach the merits of that decision. The case was remanded for further proceedings.
  • On timeliness, the court held the district court used the wrong “starting point” to measure delay. The relevant date is not when the Conservation Groups became aware of broad policy shifts, but when they learned their interests were “no longer . . . protected by the original parties.” The court found that high-level executive orders in January 2025 were insufficient to establish the specific divergence required — noting that “the same district court (and the same district judge) denied intervention to CBD in a contemporaneous case on the ground that President Trump’s executive orders were insufficient to show that the Administration would not defend an ESA listing.” The Conservation Groups moved to intervene just six days after the Government’s April 25, 2025, motion for a briefing extension to explore settlement, and the court found that “[o]ur precedents denying intervention as untimely have consistently required a longer delay.”
  • On prejudice and adequacy of representation, the court emphasized that the Conservation Groups sought to intervene before any summary judgment briefing was completed and before any settlement was presented. The court further held the district court erred in finding the Government adequately represented the Conservation Groups’ interests when the Government was actively seeking to vacate the very rule the Conservation Groups wished to defend: “their disagreement goes to the core question of whether the Listing Rule’s protections of the lesser prairie-chicken are lawful at all.” The court quoted its recent decision in Louisiana v. Burgum for the principle that an intervenor need only “point[] to specific conduct showing that the party at issue inadequately represent[s] [their] interests.”
  • On appellate standing, the court held that the Conservation Groups’ member declarations — which predated the district court’s order and expressed only generalized “some day intentions” to view the lesser prairie-chicken — were insufficient to establish a concrete, particularized injury traceable to the vacatur. Quoting Lujan v. Defenders of Wildlife, the court found that the members’ “‘some day’ intentions — without any description of concrete plans, or indeed any specification of when the some day will be — do not support a finding of the ‘actual or imminent’ injury” required for standing. The court also noted that the Groups’ status as original petitioners for the rulemaking “does not itself establish an injury conferring standing to appeal.”

Unpublished decisions

• Smith v. Lynch, 25-10955, appeal from N.D. Tex.
  • per curiam (Jones, Ho, Wilson) (no oral argument), prisoner suit
  • Affirming dismissal of Texas state prisoner’s sec. 1983 claim.
  • Scott Smith, a Texas state prisoner, appealed the district court’s dismissal without prejudice of his 42 U.S.C. § 1983 suit under Federal Rule of Civil Procedure 41(b) for failure to prosecute or follow court orders. On appeal, Smith did not address the district court’s application of Rule 41(b) or otherwise explain why the dismissal was in error.
  • The court held that even pro se litigants must brief their arguments to preserve them, and Smith’s failure to identify any error in the disposition of his § 1983 suit constituted abandonment of any claim related to that ruling.

• United States v. Gonzalez Saenz, 25-11220, 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. Rodriguez-Rodriguez, 25-20241, appeal from S.D. Tex.
  • per curiam (Richman, Higginson, Douglas) (no oral argument), criminal, sentencing
  • Vacating enhanced sentence on conviction of illegal reentry, and remanding for resentencing.
  • Josue Rodriguez-Rodriguez pleaded guilty to illegal reentry following an aggravated-felony conviction under 8 U.S.C. §§ 1326(a), (b). He argued on appeal—for the first time—that none of his prior convictions qualified as an aggravated felony to support the § 1326(b)(2) enhancement, which authorizes a 20-year maximum sentence. The Government conceded there were insufficient documents in the record to support the enhanced penalty range and sought to supplement the record on appeal.
  • The court found the record insufficient to determine which prior conviction triggered the § 1326(b)(2) enhancement and declined to hypothesize on appeal, noting it is “a court of review, not first view.” The case was remanded for the district court to consider the supplemented record and, if warranted, re-impose the enhancement with the proper factual basis.

• United States v. Davis, 25-20393, appeal from S.D. Tex.
  • per curiam (Willett, Duncan, Engelhardt) (no oral argument), criminal, sentencing
  • Affirming 46-month sentence on conviction of assault.
  • Faith Davis pleaded guilty to assault and was sentenced to 46 months’ imprisonment and three years of supervised release. She argued for the first time on appeal that the Government’s comments at sentencing regarding her acceptance of responsibility breached the plea agreement’s obligation to move for an additional one-level reduction under U.S.S.G. § 3E1.1(b).
  • Reviewing for plain error, the court found no breach because Davis’s argument depended on an unreasonable interpretation of the plea agreement.

• United States v. Williams, 25-20577, appeal from S.D. Tex.
  • per curiam (King, Higginson, Douglas) (no oral argument), criminal, forfeiture
  • Affirming substitution forfeiture order.
  • In 2015, Huey P. Williams, Jr., was convicted of aiding and abetting healthcare fraud, and the district court imposed a personal money judgment of $1,969,498.36 under 18 U.S.C. § 982(a)(7). In 2025, the district court ordered forfeiture of two real properties as substitute assets to satisfy the outstanding money judgment. Williams challenged the validity of the substitution order on multiple grounds, arguing the district court failed to properly impose forfeiture in the initial judgment, that the order was time-barred, that it violated third-party interests, and that he received inadequate notice.
  • The court found the district court followed proper procedures under Federal Rule of Criminal Procedure 32.2 and that the money judgment constituted a valid preliminary forfeiture order that became final at sentencing. The court also held that notice via certified and first-class mail to Williams’s known residence satisfied due process.

• Payne v. Hammond City, 25-30700, appeal from E.D. La.
  • per curiam (Willett, Engelhardt, Douglas) (oral argument), Title VII, employment discrimination, Americans with Disabilities Act
  • Affirming summary judgment dismissal of employment discrimination and disability discrimination claims.
  • Jennifer Payne, a former Hammond Police Department employee, sued the City of Hammond alleging sex discrimination under Title VII, disability discrimination and failure to accommodate under the ADA and the Louisiana Employment Discrimination Law (LEDL), retaliatory demotion and discharge, and wrongful termination. Payne had been placed on extended sick leave after spinal procedures, was demoted for violating the department’s sick-leave policy (traveling to Mexico while on sick leave), and was ultimately removed from service when she could no longer perform essential duties.
  • Title VII sex discrimination: Payne failed to identify an adequate comparator—she did not present evidence that similarly situated male officers were in nearly identical circumstances.
  • ADA/LEDL failure to accommodate: Payne’s requests for indefinite leave, light duty, policy modifications, reassignment, and an interactive process were all properly rejected; her doctors indicated her restrictions were “likely permanent,” and the City engaged in the interactive process.
  • Retaliatory demotion and discharge: Payne established temporal proximity for demotion but failed to rebut the City’s legitimate non-retaliatory motive (discipline for the policy violation, recommended by the state agency before the City received notice of Payne’s EEOC charge). As to discharge, the seven-month gap was too long to establish causal connection.
  • Wrongful termination: Payne herself admitted she could not perform essential police-officer duties.
  • Propriety of summary judgment: The district court properly evaluated competent evidence without need for trial.

• Travelers Property Casualty Co. of America v. Ericsson Inc., 25-40583, appeal from E.D. Tex.
  • per curiam (Richman, Higginson, Douglas) (oral argument), insurance
  • Affirming summary judgment for insurer.
  • Ericsson entities appealed summary judgment holding that their commercial general liability insurers (Travelers and ACE) owed no duty to defend two underlying Anti-Terrorism Act lawsuits. The underlying suits alleged Ericsson intentionally paid protection money to Foreign Terrorist Organizations through third-party contractors, funding attacks that killed or injured U.S. service members and civilians. The CGL policies covered only “occurrences,” defined as accidents. The central question, under Texas’s “eight corners” duty-to-defend analysis, was whether the underlying complaints alleged accidental or intentional conduct.
  • Applying Discovery Property & Casualty Co. v. Blue Bell Creameries USA Inc., 73 F.4th 322 (5th Cir. 2023), the court found Ericsson’s payments were volitional, not accidental, and that whether Ericsson intended the payments to ultimately reach the FTOs was irrelevant—”an intentional act and the intent to cause injury are two distinct concepts.” The court rejected Ericsson’s arguments that sporadic uses of “recklessly” in the 1,487-page complaints defeated intentionality, noting that “conscious disregard of the known risk” is volitional under Texas law.

• United States v. Sanchez-Romero, 25-50948, c/w 25-50949, appeal from W.D. Tex.
  • per curiam (King, Higginson, Douglas) (no oral argument), criminal, sentencing
  • Affirming sentence on conviction of illegal reentry and revocation of supervised release.
  • Odilon Sanchez-Romero appealed his sentence for illegal reentry and the consecutive sentence imposed upon revocation of supervised release. He argued that the district court inadequately explained its sentencing choices, that the sentence was substantively unreasonable, that the court erred in imposing supervised release on a deportable alien without an individualized determination, and that a joint sentencing hearing with other defendants was procedurally unreasonable and unconstitutional.
  • The court found no reversible plain error on any claim; the within-guidelines sentence carried a presumption of reasonableness that Sanchez-Romero failed to rebut, and he did not show that any alleged errors affected his substantial rights.

• Polinski v. Avondale Premier Collection, 26-10074, appeal from N.D. Tex.
  • per curiam (Stewart, Richman, Haynes) (no oral argument), Haynes, J., dissenting; sec. 1983
  • Dismissing as frivolous appeal from dismissal of sec. 1983 claim.
  • Peter J. Polinski sought to proceed in forma pauperis on appeal from the dismissal of his § 1983 complaint for failure to state a claim. The district court had also declared him a vexatious litigant and imposed a prefiling restriction. Polinski argued the prefiling restriction was imposed without proper safeguards, that the blanket certification against good-faith appeal was overbroad, that he should have been allowed to amend his complaint, and that the district court erroneously relied on § 1915A(b) since he was not a prisoner.
  • The court found Polinski failed to raise any nonfrivolous issue for appeal.
  • Judge Haynes dissented, stating that Polinski’s appeal involved at least one “legal point arguable on the merits” and that he had demonstrated financial eligibility for IFP status. Judge Haynes would have granted IFP and requested full briefing from the parties.

• San Miguel v. Searcy, 26-10115, appeal from N.D. Tex.
  • per curiam (Willett, Duncan, Engelhardt) (no oral argument), prisoner suit
  • Dismissing appeal in part for lack of jurisdiction and affirming in part district court’s denial of preliminary injunctive relief and TRO and denial of motion to issue service of process.
  • Samuel San Miguel, a resident of the Texas Civil Commitment Center, brought an interlocutory appeal challenging the denial of his motion for a preliminary injunction and temporary restraining order, as well as the denial of his motion to issue service of process.
  • The court lacked jurisdiction to review the denial of the temporary restraining order and the motion for service of process. On the merits of the preliminary-injunction denial, San Miguel failed to demonstrate he met the requirements for entitlement to injunctive relief.

• United States v. Desormeaux, 26-30073, appeal from W.D. La.
  • per curiam (Smith, Stewart, Southwick) (no oral argument), criminal, sentencing
  • Affirming sentence on conviction of conspiracy to commit wire fraud.
  • Brian Desormeaux appealed his sentence following a guilty plea to conspiracy to commit wire fraud. He challenged two sentencing enhancements: (1) a two-level role enhancement under U.S.S.G. § 3B1.1(c) for being an organizer or manager, and (2) a two-level enhancement under U.S.S.G. § 2B1.1(b)(10)(C) for offense conduct involving sophisticated means.
  • The record supported both enhancements—Desormeaux exercised decision-making authority over his two daughters (co-defendants) and directed them to submit false claims, and he employed multiple methods including generating false inspection reports and altering financial records to execute and conceal the fraud scheme.

• In re Dynamic Industries Saudi Arabia, Ltd. (Simms v. Dynamic Industries), 26-30185, appeal from E.D. La.
  • per curiam (King, Higginson, Douglas) (no oral argument), bankruptcy, counsel withdrawal
  • Affirming denial of motion to withdraw as creditors’ counsel.
  • Attorneys J. Stephen Simms and Catherine M. Benson sought to withdraw as counsel for petitioning creditors in an involuntary bankruptcy proceeding against Dynamic Industries Saudi Arabia, Limited (DISA). Their client terminated their representation, but the bankruptcy court denied the motion to withdraw and motion for reconsideration because a motion for attorneys’ fees and costs arising from a prior appeal remained pending. A threshold jurisdictional question was whether the denial of the withdrawal motion was a final appealable order; the court found jurisdiction existed because the bankruptcy court had already entered final judgment and this was a post-judgment appeal.
  • The bankruptcy court did not abuse its discretion in denying withdrawal, relying on the established principle that a corporation may appear in federal court only through licensed counsel and the practical reality that a fees-and-costs motion was still pending.

• Albert v. Pacesetter, Inc., 26-40015, appeal from E.D. Tex.
  • per curiam (Smith, Stewart, Southwick) (no oral argument), product liability
  • Affirming dismissal of product liability claim for failure to have an expert witness.
  • Steven Albert sued pacemaker manufacturer Pacesetter, Inc., alleging that an incompletely mixed epoxy caused moisture to enter his Assurity pacemaker’s pulse generator, leading to premature battery depletion and serious medical consequences including hospitalization and emergency pacing. His wife and daughter asserted separate bystander claims. The central issue was whether expert testimony was required under Texas law to establish causation in this complex product-liability case.
  • Applying Texas law, the court agreed that causation in this case—linking an epoxy-mixing defect to internal pacemaker failure and the resulting medical conditions—was not within the general experience and common sense of lay jurors, and therefore required expert testimony, which the Alberts failed to provide. The derivative claims of Mr. Albert’s wife and daughter also failed accordingly.

• Mooney v. Clark, 26-50106, appeal from W.D. Tex.
  • per curiam (King, Higginson, Douglas) (no oral argument), prisoner suit
  • Affirming dismissal of Texas state prisoner’s due process claims.
  • Vernon Wayne Mooney, a Texas prisoner, appealed the dismissal of his IFP complaint as frivolous under 28 U.S.C. § 1915(e). Mooney argued that the amendment of a parole-violation charging instrument—striking the word “illegal” from a weapons-possession allegation—violated his due process rights and led to the revocation of his parole for possessing a weapon “neither described nor prohibited” by the parole condition. The court found it unnecessary to reach Mooney’s Wilkinson v. Dotson argument because it could affirm on an alternative basis.
  • Mooney conceded he possessed a six-inch knife and that such possession in a halfway house is illegal under Texas law (Tex. Penal Code §§ 46.01(6), 46.03(a)(9), 1.07(a)(14)(D)), leaving no arguable factual basis for his claim that his parole was revoked without proof of unlawful weapon.