Take the Fifth

Designated for publication

• Word v. U.S. Department of Energy, 25-10668, appeal from N.D. Tex.
  • Douglas, J. (Jones, Duncan, Douglas) (oral argument), standing, subject matter jurisdiction, administrative law
  • Affirming dismissal of suit challenging final rules of the Department of Energy under the Energy Policy and Conservation Act, holding that the Circuit Courts Appeals had exclusive jurisdiction over such judicial review challenged under the EPCA, to the exclusion of the district courts.
  • Appellants Bill Word and David Daquin, individual consumers of dishwashers and clothes washers, challenged two direct final rules (“DFRs”) issued by the Department of Energy under the Energy Policy and Conservation Act (“EPCA”), which imposed more stringent water-use standards on those appliances. They filed suit in federal district court seeking declaratory and injunctive relief, arguing the DOE exceeded its statutory authority. The DOE moved to dismiss for lack of subject-matter jurisdiction, contending that the EPCA’s statutory-review mechanism vests exclusive jurisdiction in the courts of appeals. The district court agreed and dismissed the suit with prejudice.
  • At issue on appeal was (1) whether the appellants had Article III standing under a “lost opportunity to purchase” theory; and (2) whether the EPCA’s grant of judicial review in the courts of appeals, 42 U.S.C. § 6306(b), implicitly strips federal district courts of jurisdiction over challenges to DOE appliance-efficiency rules.
  • The Fifth Circuit affirmed the district court’s dismissal, finding that (a) the appellants had standing but (b) the circuit courts have exclusive jurisdiction over challenges to rules prescribed under § 6295, and the appellants’ alternative theories—ultra vires review and the § 6306(b)(4) “savings clause”—did not provide a basis for district court jurisdiction.
  • Standing: Following Louisiana v. DOE, 90 F.4th 461 (5th Cir. 2024), the court held that the “lost opportunity to purchase” appliances precluded by regulation constitutes an injury in fact; traceability was reasonably inferable from the complaint’s allegation that appellants’ “choice of a preferred” appliance was “eliminated by” the DFRs; and redressability was satisfied because the court could review the lawfulness of the rules.
  • Exclusive Circuit Court Jurisdiction: Applying the Thunder Basin framework, the court found it “fairly discernible” from the EPCA’s text and structure that Congress intended to channel judicial review of appliance-efficiency rules to the courts of appeals, noting that “[s]pecific grants of jurisdiction to the courts of appeals override general grants of jurisdiction to the district courts.” The explicit district-court carveouts in § 6306(c) for other categories of disputes reinforced that conclusion, and allowing concurrent jurisdiction would create the “bifurcated and piecemeal review” that is “disfavored.” All three Thunder Basin factors supported the result: meaningful judicial review remains available in the circuit courts; the challenge is not collateral to the statutory review scheme; and the third factor (agency expertise) did not tip the balance where the question is which court—not whether an agency or a court—should hear the claim in the first instance.
  • Ultra Vires and Savings-Clause Arguments Rejected: The court held the appellants’ ultra vires claim was merely a “statutory-authority argument ‘dress[ed] up . . . as an ultra vires claim,'” citing Nuclear Regulatory Commission v. Texas, 605 U.S. 665 (2025), and noting that “[a] positive grant of authority does not equate to an express prohibition.” The § 6306(b)(4) “savings clause” likewise provided no separate jurisdictional hook because it preserves “other remedies provided by law,” not remedies “at law or in equity,” distinguishing the Securities Exchange Act provision discussed in Axon Enterprise, Inc.

• Parish of Cameron v. Devon Energy Production Co., L.P., 26-30505, appeal from W.D. La.
  • per curiam (Smith, Southwick, Wilson) (no oral argument), federal officer jurisdiction, remand, jurisdiction
  • Granting motion to stay remand to state court pending appeal of order remanding case that had been removed on federal-officer jurisdiction grounds, holding that such an appeal resulted in an automatic stay.
  • Louisiana parishes and the State of Louisiana sued oil and gas companies, including Devon Energy, in 42 different suits in state courts for damage to the Louisiana coast. Devon removed one of those cases to federal court under the federal officer removal statute, 28 U.S.C. § 1442, asserting it had acted under federal officers in conservation activities on the Rockefeller Wildlife Refuge and in connection with a co-defendant’s World War II aviation-gas production. The district court found Devon failed to satisfy the “acting under” element and remanded. Devon appealed under § 1447(d) and sought recognition of an automatic stay of the remand order pending appeal.
  • At issue on appeal was whether the filing of a § 1447(d) notice of appeal from a remand of a case removed under the federal officer removal statute triggers an automatic stay of the district court’s remand order.
  • Griggs Principle Applies: The court applied the Griggs principle as distilled in Coinbase, Inc. v. Bielski, 599 U.S. 736 (2023), which teaches that when an interlocutory appeal is filed, an automatic stay obtains where not granting one would “defeat[] the point of the appeal” and nullify “Congress’ decision . . . to afford a right to an interlocutory appeal.” The court found the logic of Coinbase applies with equal force to § 1447(d) appeals: “the entire case is essentially ‘involved in the appeal,'” and not staying the remand would subject Devon to the very state-court jurisdiction it seeks to avoid, potentially mooting the appeal.
  • Section 1447(c) Does Not Displace Griggs: The court rejected Louisiana’s argument that once a remand is mailed to state court there are no district court “proceedings” left to stay, relying on Plaquemines Parish v. Chevron USA, Inc., 84 F.4th 362 (5th Cir. 2023), which held that where a remand order is appealable under § 1447(d), the district court retains jurisdiction to vacate—and therefore to stay—its own remand order. The Griggs principle, as a “background principle” that “reflects a longstanding tenet of American procedure,” is presumptively read into silent authorizations of interlocutory appeal.
  • Anti-Injunction Act: The court held the Anti-Injunction Act, 28 U.S.C. § 2283, does not bar the automatic stay because it operates on the district court’s own remand order—not on state court proceedings directly—and, even if characterized as enjoining state proceedings, it falls within the Act’s “necessary in aid of [appellate] jurisdiction” exception.
  • Previous court decisions: And, while not specifically referring to any of the other 41 Parish coastal-loss lawsuits, including at least one that went to a multi-million-dollar verdict and judgment in state court after the 5th Circuit had reversed a denial of remand, the court called into doubt any post-remand/appeal-pendence state court results: “And by divesting the remand of its legal force, the stay turns off the state court’s jurisdictional ‘pipeline,’ rendering any state court proceedings a nullity in turn.”

• In re Jamaal Howard, 26-40605, appeal from E.D. Tex.
  • per curiam (Smith, Ho, Duncan) (no oral argument), habeas corpus, Atkins
  • Denying motion to authorize a successive habeas petition and to stay execution to urge revived Atkins claim based on new intellectual-disability standards.
  • Jamaal Howard, convicted of capital murder for the 2000 shooting death of Vickie Swartout in Silsbee, Texas, was scheduled for execution on October 7, 2026. In his first federal habeas petition, Howard advanced but later abandoned an Atkins intellectual-disability claim after his own expert concluded he was not intellectually disabled. As his execution date approached, Howard revived the Atkins claim, arguing that updated clinical standards—including revised publications from the AAIDD, DSM-5-TR, and new APA guidelines—would now classify him as intellectually disabled and thus ineligible for execution. He sought authorization to file a successive § 2254 application and, alternatively, a stay of execution pending the Supreme Court’s decision in Guerrero v. Johnson.
  • At issue on Howard’s motions was (1) whether Howard’s successive habeas application was time-barred under 28 U.S.C. § 2244(d)(1); (2) whether equitable tolling was available; (3) whether the Atkins claim was “presented in a prior application” and thus barred by § 2244(b)(1); and (4) whether a stay of execution was warranted.
  • Statute of Limitations: The court found the one-year limitations period had elapsed under any applicable trigger date. The constitutional right against execution of the intellectually disabled was recognized in Atkins in 2002—twenty-four years ago—foreclosing § 2244(d)(1)(C). As for the “factual predicate” trigger under subsection (D), only the August 2026 APA guidelines fell within one year of filing, but the court held these merely “substantiate[] Dr. Patton’s methods and conclusions, rather than uncovering a previously undiscoverable factual predicate.”
  • No Equitable Tolling: The court found Howard “slept on his rights,” filing his state habeas petition on September 28, 2026—half a year after his execution was scheduled and less than two weeks before the date—even though many of the events he cited occurred years earlier. The court further held Howard acted with “unclean hands” by “waiting until the eleventh hour” and thereby “manufactured a sense of urgency that could have been averted by an earlier filing.”
  • Previously Presented Claim: Even setting aside limitations, the court held the Atkins claim was “presented in a prior application” under § 2244(b)(1) because Howard had funded, developed, and briefed it in his first habeas petition before abandoning it, and “[p]resentation is distinct from adjudication.” Relying on In re Coleman, 768 F.3d 367 (5th Cir. 2014), the court held that new factual support (updated clinical standards) for the same legal claim does not escape the § 2244(b)(1) bar.
  • Stay of Execution Denied: Howard showed no likelihood of success on the merits; the state and public interest in enforcing criminal judgments weighed against a stay; and the court reiterated that “[t]he Court’s grant of certiorari in a capital case does not allow us to deviate from circuit law, nor is it grounds for a stay of execution.” Howard’s laches and unclean hands further disfavored equitable relief.

Unpublished decisions

• United States v. Ciancia, 24-50874, appeal from W.D. Tex.
  • per curiam (Jones, Southwick, Duncan) (no oral argument), criminal, guilty plea
  • Affirming guilty-plea conviction of possession of child pornography.
  • At issue on appeal was whether the defendant’s guilty plea to knowingly possessing child pornography (18 U.S.C. § 2252A(a)(5)(B)) was supported by sufficient evidence and was knowing and voluntary; whether the government breached the plea agreement by discussing aggravating evidence at sentencing; and whether the district court abused its discretion in denying the defendant’s motion to withdraw his guilty plea.
  • The court held that the plea was supported by ample evidence, as Ciancia himself repeatedly admitted to knowingly possessing child pornography, including by viewing files on a virtual-reality headset. The plea was knowing and voluntary based on the colloquy record, and Ciancia’s bare assertions of attorney misadvice did not overcome the strong presumption of verity. The government did not breach the plea agreement because it expressly reserved “full rights of allocution” at sentencing, and the facts discussed were contained in the PSR. Finally, applying the Carr factors, the district court did not abuse its discretion in denying plea withdrawal given Ciancia’s five-month delay and the tenuous nature of his claimed misunderstanding.

• United States v. Hulbert, 25-11225, appeal from N.D. Tex.
  • per curiam (Willett, Duncan, Engelhardt) (no oral argument), criminal, sentencing, supervised release
  • Affirming supervised-release revocation and sentencing.
  • At issue on appeal was whether the district court erred in classifying a Texas assault offense (Tex. Penal Code § 22.01(b)(2)(B)) as a Grade A supervised-release violation under U.S.S.G. § 7B1.1(a)(1), and whether the court improperly relied on the retributive sentencing factor of 18 U.S.C. § 3553(a)(2)(A) when fashioning a revocation sentence.
  • Reviewing for plain error, the court found no clear or obvious error in the Grade A classification because the Fifth Circuit has not settled whether the categorical approach applies to § 7B1.1(a)(1), and other circuits are divided. The court also found that the district court’s remarks about the assault were ambiguous and did not unmistakably invoke retribution; they could equally reflect permissible factors like deterrence or incapacitation.

• Narro v. Singh Sukhwinder, et al., 25-11288, appeal from N.D. Tex.
  • per curiam (Clement, Oldham, Douglas) (no oral argument), personal tort
  • Affirming jury verdict for plaintiff in personal-injury case.
  • At issue on appeal was whether the jury verdict of nearly $1.2 million in a personal-injury negligence case arising from an 18-wheeler collision should be overturned, where the truck driver conceded negligence but disputed causation and the extent of the plaintiff’s injuries.
  • After carefully reviewing the briefs and the record, the court found no reversible error.

• Canales v. Walmart Texas, L.L.C., 25-20550, appeal from S.D. Tex.
  • per curiam (Elrod, Richman, Ramirez) (no oral argument), personal tort
  • Affirming summary judgment dismissal of premises-liability claim.
  • At issue on appeal was whether the district court properly granted summary judgment on a Texas premises-liability slip-and-fall claim, specifically whether the plaintiff presented sufficient evidence that Walmart had actual or constructive knowledge of water on the floor.
  • Under Texas’s “time-notice rule,” temporal evidence is required for a reasonable factfinder to assess constructive knowledge. The court found that security footage showing employees walking near the area was insufficient without evidence of how long the water had been present; the plaintiff’s theory that unchanged floor conditions proved the water was present for the entire 75-minute video amounted to speculation. Evidence of another person slipping only eight minutes before the plaintiff’s fall was also legally insufficient, and photographs of dirty footprints do not establish the duration of a hazard under Texas law.

• United States v. Carrizal, 25-50878, c/w 25-50880, appeal from W.D. Tex.
  • per curiam (Haynes, Graves, Ramirez) (no oral argument), criminal, sentencing
  • Affirming 72-month sentence on conviction of illegal reentry.
  • At issue on appeal was whether the district court procedurally erred by failing to adequately explain its reasons for an above-guidelines upward variance; whether the resulting 72-month sentence for illegal reentry (8 U.S.C. § 1326) was substantively unreasonable; and whether the consecutive 14-month supervised-release revocation sentence was plainly unreasonable.
  • The district court cited appropriate § 3553(a) factors and gave reasons tied to those factors, so there was no procedural error. The defendant failed to show the sentence gave significant weight to an irrelevant or improper factor or represented a clear error of judgment in balancing sentencing factors. The consecutive revocation sentence was likewise not plainly unreasonable.

• Cortez-Mejia v. Blanche, 25-60440, petition for review of BIA order
  • per curiam (Elrod, Richman, Ramirez) (no oral argument), immigration
  • Dismissing as untimely petition for review of a reinstated removal order.
  • At issue on appeal was whether the court had jurisdiction to review a reinstated removal order as a “final order of removal” under 8 U.S.C. § 1252(a)(1) in light of Riley v. Bondi, 606 U.S. 259 (2025); and whether the petition for review was timely under 8 U.S.C. § 1252(b)(1)’s 30-day filing deadline.
  • The court declined to resolve whether Riley undermined jurisdiction over reinstatement orders, choosing instead to dismiss on timeliness grounds. Relying on Liao v. Bondi, the court held that § 1252(b)(1)’s 30-day filing rule is a mandatory claim-processing rule that must be enforced when the government presses it. Cortez-Mejia filed his petition more than seven months after the January 2025 reinstatement order and did not argue equitable tolling.

• United States v. Lloyd, 26-10167, 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. Nolly, 26-10176, appeal from N.D. Tex.
  • per curiam (Haynes, Graves, Ramirez) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Deras v. Johnson & Johnson Services, Inc., 26-10362, appeal from N.D. Tex.
  • per curiam (Jones, Southwick, Duncan) (no oral argument), Fair Labor Standards Act, Rule 60(b)
  • Affirming denial of Rule 60(b) motion to reopen FLSA case after failure to comply with local rules.
  • At issue on appeal was whether the district court abused its discretion in denying a Rule 60(b)(1) motion to reopen a case dismissed without prejudice under Fed. R. Civ. P. 41(b) for failure to comply with a local rule requiring retention of local counsel; specifically, whether counsel’s ignorance of the local rules constituted “excusable neglect” under the Pioneer factors.
  • The case had already been to the Fifth Circuit once and remanded for proper application of the Pioneer factors. On remand, the district court found that counsel’s failure to designate local counsel amounted to ignorance of local rules and failure to make reasonable inquiry when put on notice—insufficient to clear the circuit’s “high bar” for Rule 60(b)(1) relief. The Fifth Circuit held it was not an abuse of discretion for the district court to find a single Pioneer factor (reason for delay) weighed so heavily against relief as to be effectively dispositive, citing the longstanding rule that “inadvertent mistake, gross carelessness, ignorance of the rules, or ignorance of the law are insufficient bases for 60(b)(1) relief.”

• United States v. Kasali, 26-20375, appeal from S.D. Tex.
  • per curiam (Elrod, Richman, Ramirez) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Sonderling v. Sills, 26-30272, appeal from M.D. La.
  • per curiam (Davis, Stewart, Duncan) (no oral argument), ERISA
  • Affirming summary judgment for Secretary of Labor, and $209,466 judgment against defendant, on ERISA fiduciary-breach claims against construction company owner.
  • At issue on appeal was whether the district court properly granted summary judgment for the Acting Secretary of Labor on ERISA fiduciary-breach claims against the president and sole owner of a construction company, who allegedly withheld employee plan contributions without remitting them to insurers and failed to pay claims under a self-funded health plan; whether the defendant was a “functional fiduciary” under ERISA; whether the district court’s application of Local Rule 56 amounted to summary judgment “by default”; and whether the court abused its discretion in denying Rule 56(d) additional-discovery and Rule 59(e) reconsideration motions.
  • The court held that Local Rule 56 merely implements Fed. R. Civ. P. 56 and does not create a means of entering judgment by default; because Sills failed to controvert the Secretary’s statement of material facts, the district court properly deemed them admitted. Uncontroverted evidence—including deemed admissions from unanswered requests for admission—established that Sills exercised discretionary authority over Plan management and was a functional fiduciary. His argument that a third-party surety’s control of company receivables caused the Plan’s losses did not excuse his failure to remit employee contributions. The $209,466.34 judgment (comprising $172,351.35 in denied claims and $37,114.99 in unremitted employee contributions) was supported by the record. The permanent injunction barring Sills from serving as an ERISA fiduciary was affirmed because his challenge depended on vacatur of the liability judgment. The Rule 56(d) denial was proper because Sills submitted no affidavit or declaration, and the Rule 59(e) denial was proper because it merely reiterated summary-judgment arguments.

• United States v. Johnson, 26-40102, appeal from E.D. Tex.
  • per curiam (Clement, Oldham, Douglas) (no oral argument), criminal, appellate jurisdiction
  • Dismissing appeal of interlocutory order restricting pre-sentencing filing of pro se motions.
  • At issue on appeal was whether the Fifth Circuit had jurisdiction under 28 U.S.C. § 1292(a)(1) over an interlocutory appeal of a district court order restricting a convicted but not-yet-sentenced defendant’s ability to file pro se motions and letters unrelated to sentencing.
  • The court held that an order regulating the conduct or progress of litigation before a district court is ordinarily not an “injunction” appealable under § 1292(a)(1). Even assuming the order qualified as an injunction, the defendant failed to show “serious, perhaps irreparable, consequences,” because the order left him free to file all sentencing-related motions and objections.

• United States v. Flores-Jimenez, 26-40304, appeal from S.D. Tex.
  • per curiam (Haynes, Graves, Ramirez) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• United States v. Sandoval-Linan, 26-50069, appeal from W.D. Tex.
  • per curiam (Willett, Duncan, Engelhardt) (no oral argument), criminal, sentencing
  • Affirming enhanced sentence on conviction of illegal reentry.
  • At issue on appeal was whether the sentencing enhancement in 8 U.S.C. § 1326(b) for illegal reentry is unconstitutional because it allows a sentence above the statutory maximum based on facts not alleged in the indictment and either admitted or proved beyond a reasonable doubt.
  • The court held the argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998), which persists as a narrow exception permitting judges to find the fact of a prior conviction.

• United States v. De Luna-Torres, 26-50120, appeal from W.D. Tex.
  • per curiam (Willett, Duncan, Engelhardt) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• United States v. Olivera-Hernandez, 26-50154, appeal from W.D. Tex.
  • per curiam (Willett, Duncan, Engelhardt) (no oral argument), criminal, sentencing
  • Affirming enhanced sentence for illegal reentry, on basis that the defendant’s argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998).