Take the Fifth

Designated for publication

• United States v. Cordova, 24-50564, appeal from W.D. Tex.
  • per curiam (en banc) (no oral argument at panel stage), criminal, Second Amendment, en banc
  • Vacating May 20, 2026, panel opinion (per curiam — Haynes, Ho, Oldham; Ho, J. and Oldham, J., each separately concurring), and granting petition for rehearing en banc.
  • Panel opinion had affirmed conviction of possession of a firearm by a felon, where defendant had pled guilty and his prior felony convictions included drug possession and evading arrest or detention with a motor vehicle. The panel’s affirmance relied on prior Circuit precedent in United States v. Diaz, but Judge Oldham concurred and noted that case was “wrong on the day it was decided” and “gets more wrong with each passing day.”

• Megalomedia Inc. v. Philadelphia Indemnity Insurance Co., 23-20570, appeal from S.D. Tex.
  • Duncan, J. (Ho, Duncan, Oldham) (oral argument), Ho, J., concurring; Oldham, J., dissenting; insurance, forfeiting argument, party presentation
  • Affirming summary judgment to insurer on issue of whether policy for reality show provided coverage for injury claims by show contestants.
  • Megalomedia produces My 600-lb Life, a television show chronicling the struggles of morbidly obese people to lose weight. Its insurer, Philadelphia Indemnity, maintained a general liability policy that, beginning in 2011, contained an exclusion for “any/all reality shows.” When former show participants sued Megalomedia for injuries allegedly caused during production (the “Bonner suit”), Philadelphia refused to defend or indemnify the company and filed a declaratory judgment action in federal court. Megalomedia asserted counterclaims for breach of contract, fraudulent inducement, and violations of the Texas Insurance Code and the Deceptive Trade Practices Act. The district court granted summary judgment to Philadelphia, finding the exclusion unambiguously applied to My 600-lb Life, and after a bench trial rejected Megalomedia’s fraud claims, finding Megalomedia knew the exclusion was in the policy and knew the show was a reality show.
  • At issue on appeal was (1) whether the term “reality show” in the policy exclusion was ambiguous, such that it should be construed against the insurer under Texas law; (2) whether Megalomedia forfeited its ambiguity argument by raising it for the first time on appeal after taking the opposite position in the district court; and (3) whether the district court clearly erred in finding Megalomedia could not have justifiably relied on any representation that My 600-lb Life was covered.
  • The Fifth Circuit held that Megalomedia forfeited its argument that “reality show” was ambiguous because it never raised that argument below—and indeed repeatedly told the district court the opposite, that My 600-lb Life was a reality show. The court also held that Megalomedia failed to show clear error in the district court’s rejection of its fraudulent inducement claim.
  • On forfeiture, the court found Megalomedia’s appellate argument was a “180-degree reversal” from its position below. In the district court, Megalomedia repeatedly described My 600-lb Life as a “reality-TV show” and argued the exclusion did not apply to reality shows; on appeal, it flipped and argued that the exclusion did apply to reality shows but My 600-lb Life was not one. The court wrote: “That is the reality of forfeiture.” Megalomedia’s counsel candidly conceded at oral argument that the ambiguity argument “was not made below.” The majority also responded at length to the dissent’s claim/argument distinction, stating: “[I]f party presentation means anything, it means a party cannot hope to win on appeal by making the opposite argument from the losing one it made in district court.”
  • On the fraud claims, the court found ample evidence supported the district court’s finding that Megalomedia knew the exclusion applied to its show. For example, Philadelphia had emailed Megalomedia’s broker that “[t]he Reality TV portion of this account is excluded,” and Megalomedia responded by removing My 600-lb Life production costs from its estimates three years running and obtaining alternate insurance for the show, representing to those other insurers that it was a “reality show.” Because Megalomedia knew the exclusion applied, it could not have justifiably relied on any contrary representation.
  • The court also addressed the dissent’s merits argument, noting that Megalomedia itself had no trouble understanding the term “reality show” when litigating below: “Its staff probably speak modern American English. If such people hear the term ‘reality show,’ they do not throw up their hands and say, ‘Do you mean Monday Night Football?'”
  • Judge Ho concurred, framing the case with the observation: “Is My 600-lb Life a reality TV show? I’m reminded of countless other questions that have been the subject of good-natured public debate. Is a hot dog a sandwich? Is cereal a soup? Is Die Hard a Christmas movie?” He emphasized that the forfeiture holding was narrow, affecting only Megalomedia and announcing “no substantive ruling on contract interpretation or insurance law today.” He also praised Megalomedia’s counsel for candor: “No doubt it can be difficult for diligent lawyers to advise their clients to be honest about potential weaknesses in their case. But it’s a service to the court.” He concluded by quoting Proverbs 28:13: “One who conceals his wrongdoings will not prosper, but one who confesses and abandons them will find compassion.”
  • Judge Oldham dissented, arguing the district court erred because the term “reality show” was never defined in the policy and is genuinely ambiguous—particularly given that the policy covered documentaries, docuseries, and docudramas, categories that “significantly overlap with reality shows.” He noted that Philadelphia’s own counsel at oral argument “could not provide a consistent definition of a reality show” and at one point suggested the term included any show that was “reality based,” which would absurdly exclude all of Megalomedia’s programming and render the insured’s premiums “just gifts to Philadelphia’s shareholders.” On forfeiture, Judge Oldham contended the majority conflated “claims” with “arguments,” contending that under Supreme Court precedent, “once a claim is ‘properly presented, a party can make any argument in support of that claim; parties are not limited to the precise arguments they made below.'” He marshaled a wide-ranging discussion of party presentation doctrine—citing Erie, Mapp, Batson, and other landmark cases decided on grounds not raised by the parties—to argue that courts retain “the independent power to identify and apply the proper construction of governing law.” Judge Oldham concluded: “The party presentation principle does not permit (let alone require) courts to announce legal judgments that are obviously wrong.” He also acknowledged the majority’s citation of his own prior forfeiture opinions, responding: “‘A man should never be ashamed to own he has been in the wrong, which is but saying, in other words, that he is wiser today than he was yesterday.’ Alexander Pope.”

Unpublished decisions

• Ramey, L.L.P. v. Bessent, 24-20533, appeal from S.D. Tex.
  • per curiam (Richman, Engelhardt, Wilson) (no oral argument), Paycheck Protection Program
  • Affirming district court’s judgment upholding SBA’s denial of PPP eligibility.
  • Ramey, a Houston law firm, sought judicial review of the Small Business Administration’s denial of its Paycheck Protection Program (PPP) First Draw Loan, Second Draw Loan, and Loan Forgiveness applications, as well as monetary damages. The firm’s principal had been found to have falsely answered the criminal-history question on his PPP loan application, and both the lending bank and SBA had previously denied eligibility—actions upheld in a prior Fifth Circuit proceeding. On appeal, Ramey argued the district court overread the Fifth Circuit’s prior ruling and that SBA failed to consider pertinent factors before denying forgiveness.
  • After ordering a limited remand so the district court could explain its reasons for dismissal, the Fifth Circuit affirmed the dismissal for substantially the same reasons provided by the district court.

• United States v. Khater, 25-11098, appeal from N.D. Tex.
  • per curiam (Willett, Duncan, Engelhardt) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Strange v. U.S. Bank Trust Company, N.A., 25-20558, appeal from S.D. Tex.
  • per curiam (Higginbotham, Engelhardt, Ramirez) (no oral argument), foreclosure
  • Affirming dismissal of claim arising from enforcement of lien on plaintiffs’ property.
  • Pro se appellants Robert and Lana Strange challenged the dismissal of their claim for a declaration that the statute of limitations for enforcing a lien on their property had expired, and the entry of summary judgment in favor of the lienholder on its counterclaim for judicial foreclosure.
  • The court found that the Stranges abandoned several claims (fraud, breach of contract, promissory estoppel) by failing to brief them on appeal. As for the remaining arguments, the Stranges’ brief contained no citations to the record, and none of their cited authorities supported their arguments, resulting in forfeiture through inadequate briefing.

• United States v. Gonzalez, 25-40535, appeal from S.D. Tex.
  • per curiam (Clement, Haynes, Ramirez) (no oral argument), criminal, sentence reduction
  • Affirming denial of motion for sentence reduction.
  • Jorge Arturo Gonzalez, serving 235 months for conspiracy to possess with intent to distribute cocaine, challenged the denial of his motion to compel production of grand jury materials under Federal Rule of Criminal Procedure 6(e) and his motion for a sentence reduction under 18 U.S.C. § 3582(c)(2).
  • The appeal was untimely, but the court reached the merits because a remand on timeliness would have been futile. Gonzalez failed to demonstrate a particularized need for grand jury materials and forfeited his challenge to the denial of the sentence reduction by failing to explain why the district court’s reasoning was incorrect.

• United States v. Quiroz, 25-50952, appeal from W.D. Tex.
  • per curiam (Smith, Stewart, Southwick) (no oral argument), criminal, sentencing, Second Amendment
  • Affirming convictions and sentences for making a false statement while buying a firearm and receiving a firearm while under felony indictment, rejecting Second Amendment challenges.
  • The Government moved for summary affirmance of the convictions and separately moved to vacate two supervised-release conditions (financial-disclosure and credit-approval) as plainly erroneous under 18 U.S.C. § 3583(d).
  • The court granted summary affirmance of the convictions, holding that Quiroz’s Second Amendment challenges were barred by the mandate rule from his initial appeal. The court also granted the Government’s unopposed motion to vacate the two erroneous supervised-release conditions and remanded for the district court to amend the written judgment accordingly.

• United States v. Wallace, 25-60538, appeal from S.D. Tex.
  • per curiam (Haynes, Graves, Ramirez) (no oral argument), criminal, sentencing, appellate jurisdiction
  • Dismissing appeal of conviction and sentence as untimely.
  • Carlos Wallace pleaded guilty to possession with intent to distribute 50 grams or more of methamphetamine and was sentenced to 210 months. The Government moved to dismiss his appeal as untimely under Federal Rule of Appellate Procedure 4(b). Wallace filed no response and did not address the timeliness issue.
  • The court granted the Government’s motion and dismissed the appeal, holding that the time limits in Rule 4(b)(1)(A) are mandatory claims-processing rules and the Government properly enforced them.

• Looney v. Lisch, 26-10360, appeal from N.D. Tex.
  • per curiam (King, Higginson, Douglas) (no oral argument), federal question jurisdiction, amendment
  • Affirming dismissal of pro se business tort claims for lack of federal question jurisdiction.
  • Pro se appellant Allen Eugene Looney sued more than ninety defendants asserting claims including legal malpractice, fraud, breach of fiduciary duty, civil conspiracy, RICO violations, and others. The district court dismissed for lack of subject-matter jurisdiction, finding that although Looney asserted federal question jurisdiction, he pleaded only state-law claims. Looney also challenged the denial of leave to file a fourth amended complaint, but his proposed 200-page fourth amended complaint still failed to plead any facts showing a federal cause of action—mere invocations of federal statutes do not create federal question jurisdiction.
  • The court found no federal question jurisdiction and held the district court did not abuse its discretion in denying leave to amend as futile.

• In re Aries Marine Corp. (Fluid Crane & American Longshore v. Aries Marine), 26-30226, appeal from E.D. La.
  • per curiam (Haynes, Graves, Ramirez) (no oral argument), maritime law
  • Affirming denial of motions to reopen limitation-of-liability case.
  • This case arose from the capsizing of a liftboat (L/B RAM XVII) operated by Aries Marine. After Aries petitioned for limitation of liability and settled with most claimants, Fluid Crane & Construction and its insurer American Longshore moved to reopen the case to litigate an independent general-maritime-law negligence (Burnside) claim and Fluid’s independent subrogation claim. The district court denied the motions, finding these causes of action were neither adequately pleaded in the initial claim nor properly incorporated into the pre-trial order. On appeal, Fluid and American argued their initial pleading stated a Burnside claim and, alternatively, that the joint pre-trial order introduced both claims into the litigation.
  • The court held that the initial claim’s allegations were consistent only with a subrogation theory, not a Burnside direct-action tort claim, and that references to these theories buried in non-designated sections of the pre-trial order did not provide adequate notice to the other parties.

• Reyna v. Texas Department of State Health Services, 26-50186, appeal from W.D. Tex.
  • per curiam (Willett, Duncan, Engelhardt) (no oral argument), Americans with Disabilities Act, Religious Freedom Restoration Act, § 1983, sovereign immunity
  • Affirming sovereign immunity dismissal of claims challenging Texas laws banning certain hemp products, but modifying to be without prejudice.
  • Pro se plaintiff Joseph Anthony Reyna, proceeding in forma pauperis, challenged two Texas Senate bills that he said would ban certain hemp products, raising claims under the ADA, RFRA, and various constitutional provisions against the Texas Department of State Health Services. The district court dismissed the ADA and constitutional claims on sovereign immunity grounds and separately dismissed the RFRA claim for failure to state a claim. On appeal, Reyna conceded the RFRA dismissal. He argued that Tennessee v. Lane‘s ADA abrogation of sovereign immunity applied and that Ex parte Young permitted suit against the Department’s commissioner, but the court found neither argument availing.
  • The court affirmed the sovereign-immunity dismissal but modified the judgment so that the ADA and constitutional claims were dismissed without prejudice rather than with prejudice, because “dismissals based on sovereign immunity are without prejudice.”

• Jin v. Blanche, 26-60068, petition for review of BIA order
  • per curiam (Haynes, Graves, Ramirez) (no oral argument), immigration
  • Denying petition for review of Chinese citizen’s petition for review of BIA order denying motion to reopen case.
  • Hui Jin, a native and citizen of China, petitioned for review of the BIA’s denial of his motion to reopen his immigration case, which was grounded on a claim of ineffective assistance of counsel (IAC). The court reviewed the denial under a “highly deferential abuse-of-discretion standard.”
  • Jin’s attacks on decisions other than the BIA’s denial of reopening were not properly before the court, and arguments not presented to the BIA were unexhausted. Jin also failed to show any prejudice from counsel’s alleged deficiencies. Jin failed to demonstrate IAC or an abuse of discretion in the BIA’s denial of reopening.

• Murphy v. Miller, 26-60281, appeal from S.D. Miss.
  • per curiam (Willett, Duncan, Engelhardt) (no oral argument), § 1983, service of process
  • Affirming dismissal for failure to effect proper service of process.
  • Pro se plaintiff Anthony Murphy, Sr. filed a 42 U.S.C. § 1983 suit against two Biloxi Police Department officials for alleged civil rights violations related to the death of his son. The district court dismissed the complaint under Federal Rule of Civil Procedure 4(m) for failure to serve the defendants after nearly fifteen months, despite multiple extensions, show-cause orders, and detailed service instructions. Murphy argued good cause based on grief over his son’s death and his pro se status. The court noted that pro se status does not excuse failure to effect service, and Murphy’s son had passed nearly four years before dismissal. Although the dismissal was nominally without prejudice, the court applied heightened scrutiny because the claims were likely now time-barred, but still found a clear record of delay caused by Murphy himself.
  • The district court did not abuse its broad discretion in dismissing rather than granting yet another extension, given Murphy’s repeated failure to comply with deadlines and court orders.