Take the Fifth

Designated for publication

• Evans v. Garza, 23-50541, appeal from W.D. Tex.
  • en banc per curiam (coting against rehearing: Elrod, Smith, Stewart, Richman, Southwick, Haynes, Graves, Higginson, Douglas, Ramirez; voting for rehearing: Jones, Willett, Ho, Duncan, Engelhardt, Oldham, Wilson) (no oral argument); Richman, J., concurring in denial of rehearing; Ho, J., dissenting from denial of rehearing; Oldham, J., dissenting from denial of rehearing (joined by Jones, Willett, Ho, Duncan, Engelhardt); Younger abstention, First Amendment, en banc
  • Denying en banc rehearing of December 9, 2025, panel opinion (Richman, Oldham, Ramirez; Oldham, dissenting) affirming the denial of preliminary injunction against the district attorney from investigating or prosecuting the plaintiff for posting a photograph of a transgendered legislator washing their hands in the women’s restroom of the Texas state capitol.
  • Michelle Evans attended a debate at the Texas Capitol concerning gender-reassignment treatment for children. While in the women’s restroom, she encountered a biological male who identifies as female and was then running for the Texas House. Evans later posted on Twitter a photograph—taken by someone else in her group—of that individual washing hands at a restroom sink, accompanied by political commentary. The Travis County District Attorney, José Garza, investigated Evans for a potential violation of Texas Penal Code § 21.15(b), which criminalized transmitting a visual image of another person in a bathroom without consent and with intent to invade privacy. Evans was never prosecuted but sought a preliminary injunction in federal court to block investigation or prosecution, arguing the statute was unconstitutional on its face and as applied to her under the First and Fourteenth Amendments. The district court denied injunctive relief, and a panel affirmed.
  • At issue was whether the Fifth Circuit should grant rehearing en banc on the question of whether Texas Penal Code § 21.15(b) violates the First Amendment—both facially and as applied to Evans’s dissemination of a photograph of a fully clothed person at a restroom sink—where the statute criminalizes non-consensual transmission of restroom images with intent to invade privacy.
  • Judge Richman concurred in the denial of rehearing, and wrote that the statute did not impinge on Evans’s ability to broadcast her political views—Evans “could have conveyed her political views without publishing the photo.” She argued the state has a compelling interest in protecting restroom privacy sufficient to survive strict scrutiny, even when the person is fully clothed. She emphasized that “[a] public restroom has been considered as a practical matter ‘off limits’ to the press once someone crosses its threshold,” and that drawing a constitutional privacy line at the door of a stall would allow intrusive photography of people engaged in all manner of personal activities outside of stalls—nursing babies, adjusting clothing, and more. She concluded: “A public restroom in a government building is analogous to a bathroom in one’s home. It is a place that sometimes must be frequented to attend to bodily functions that cannot be ignored.”
  • Judge Ho dissented, contending the case continued a pattern of the court failing to protect disfavored speech, comparing it to Villarreal v. City of Laredo. He wrote: “We’re supposed to protect the freedom of speech no matter whose ox is gored.” Judge Ho criticized the concurrence for itself publishing the photograph—”the concurrence only dramatizes the First Amendment violation in this case”—arguing it proved the photo depicted the individual “in precisely the same way that that person chooses to present himself in public. So if that’s a violation of privacy, then we have truly lost all understanding of the word.” He also wrote : “A man enters a women’s bathroom—and it’s the man’s privacy that is violated? . . . So we’re turning the law upside down to suggest that men have a privacy right to enter a women’s restroom—and women have no First Amendment right to object.”
  • Judge Oldham dissented, highlighting that DA Garza had effectively abandoned the prosecution—informing the court that “previously gathered evidence was not retained” and the limitations period had run—yet the panel opinion remained intact. He described the situation as Kafkaesque, writing: “Kafka’s Inspector said, ‘I can’t even confirm that you are charged with an offense, or rather I don’t know whether you are.’ . . . That was not supposed to be an instruction manual.” He argued the decision left future speakers in Austin with no assurance they can “participate freely in public policy debates without worrying about ham-fisted local prosecutors who’ll abuse state law to suppress conservative speech.”

• Texas Capital Bank v. Government National Mortgage Association, 25-10624, appeal from N.D. Tex.
  • Wilson, J. (Elrod, Willett, Wilson) (no oral argument), security interest, amendment, Administrative Procedure Act, sovereign immunity
  • Affirming dismissal of bank’s claims arising from extinguishment of interests securing financing of reverse mortgages.
  • Reverse Mortgage Funding, LLC (RMF) participated in Ginnie Mae’s HMBS program, securitizing federally insured reverse mortgages (HECM loans). When RMF filed for Chapter 11 bankruptcy, Texas Capital Bank provided over $28 million in DIP financing secured by RMF’s unsecuritized “tails”—incremental balances accruing on HECM loans after initial securitization. After negotiations failed, Ginnie Mae exercised its contractual and statutory authority under 12 U.S.C. § 1721(g)(1) to extinguish RMF’s interests in the pooled mortgages and purported also to eliminate Texas Capital’s separate lien on the tails. Texas Capital sued, asserting APA statutory-authority and arbitrary-and-capricious claims, promissory estoppel, and tortious interference.
  • At issue on appeal was (1) whether Ginnie Mae’s statutory authority to extinguish a defaulting issuer’s interests in pooled HECM mortgages also reached a third-party lender’s lien on unsecuritized “tails”; (2) whether Texas Capital’s tortious interference claim was barred by sovereign immunity; and (3) whether the district court erred by refusing to consider an arbitrary-and-capricious APA theory that was omitted from the complaint.
  • The court held that the plain text of § 1721(g)(1) empowers Ginnie Mae to extinguish “any . . . right, title, or interest of the issuer in any mortgage”—the statute targets the whole mortgage, not discrete subcomponents, so tails are included. Texas Capital’s lien was “wholly derivative of RMF’s rights in the collateral” because RMF could not convey greater rights than it possessed, and the Tail Agreement itself acknowledged the collateral was “subject to the rights and interests of Ginnie Mae.” The court found the constitutional-avoidance canon inapplicable because the statute was unambiguous: “Congress gave Ginnie Mae clear authority to extinguish a defaulting issuer’s interests in pooled ‘mortgages’ . . . not parts or ‘participations’ in such mortgages.”
  • On the tortious interference claim, the court held it was barred by sovereign immunity under the Federal Tort Claims Act, because the claim “ultimately rests on alleged interference with Texas Capital’s contractual payment rather than any freestanding property right.”
  • On the arbitrary-and-capricious theory, the court noted Texas Capital “conspicuously omitted” any reference to “arbitrary and capricious” from its complaint—even excising it from a quotation of § 706(2). The court concluded: “It is hardly ‘fair notice’ to excise ‘arbitrary and capricious’ from the complaint’s quotation of § 706(2) but expect Ginnie Mae to anticipate a claim based on that theory.” Texas Capital never moved to amend, even after the district court flagged the deficiency: “Even liberal pleading rules reach their limit.”

• Hogan v. Rodriguez, 25-50315, appeal from W.D. Tex.
  • Wilson, J. (Southwick, Graves, Wilson) (no oral argument), Graves, J., dissenting; habeas corpus, First Step Act
  • Affirming denial of § 2241 petition.
  • Dennis Michael Hogan, a federal prisoner convicted of enticement of a minor, was sentenced in August 2020 but did not arrive at his designated BOP facility (FCI La Tuna) until June 2021—a gap of roughly 308 days during which he was transferred through seven facilities in five states. He filed a § 2241 habeas petition arguing that the BOP owed him First Step Act (FSA) earned time credits for that pre-arrival period, contending the BOP wrongfully denied him the opportunity to participate in qualifying recidivism-reduction programs. The BOP’s regulation, 28 C.F.R. § 523.42(a), provides that credits begin accruing only upon arrival at the designated facility.
  • Whether BOP regulation § 523.42(a) conflicts with the FSA by denying prisoners the opportunity to earn time credits after sentencing but before arrival at a designated facility; and whether a prisoner who did not actually participate in qualifying programs is entitled to credits for the pre-arrival period.
  • The majority acknowledged that the question of whether the BOP regulation conflicts with the FSA was “novel” and “compelling,” but declined to resolve it. Instead, the court held Hogan’s claim failed on a simpler ground: he “does not substantiate any participation—even attempted participation—in EBRR programming or PAs.” Citing the Fourth and Tenth Circuits, the court emphasized that the FSA “requirements of completing, earning, and participating are defined with active verbs requiring conforming action by the prisoner.” As the court put it: “‘For [Hogan], it is not a question of whether he successfully participated; it is a question of whether he participated at all, and the record shows that he did not.'” The court also rejected Hogan’s claim for a “windfall” of credits based on evidence first raised on appeal, his request for court-ordered home confinement (which only the BOP can authorize), and his judicial-bias claim as conclusory.
  • Judge Graves dissented, contending that the majority’s reasoning was “a legal absurdity and reprehensible” because it penalized Hogan for failing to participate in programs the BOP itself refused to offer him. He wrote that “the prisoner cannot schedule, create or perform his own assessment or programming. The prisoner can only participate and complete such once the BOP performs its duty.” He criticized the majority for adopting what he called “circular logic”—concluding that “Hogan’s failure to participate in the required programs prior to the date that the BOP finally decided to create such programs and allow him to participate is ‘fatal’ to his claim.” He pointed to the Fourth Circuit’s decision in Benson v. Warden FCI Edgefield, which held that an inmate’s ability to earn time credits “is not tied to his arrival at” the designated facility. Judge Graves concluded there were genuine disputes of material fact precluding summary judgment and would have vacated and remanded.

• Gakou v. Warden of the Prairieland Detention Center, 26-10925, appeal from N.D. Tex.
  • per curiam (Smith, Southwick, Douglas) (no oral argument), immigration, stay
  • Denying emergency motion to stay deportation pending appeal regarding deportation to third country.
  • Abasse Gakou, a native of Senegal in ICE custody, was set to be imminently deported to Sierra Leone (a third country, not his country of origin). He filed a habeas petition in the Northern District of Texas challenging his continued detention and seeking an injunction against third-country removal pending further litigation of his Convention Against Torture (CAT) claims. The district court denied all relief and declined to enter a stay of removal. Gakou then moved for an emergency stay of removal pending appeal.
  • At issue on the motion was (1) whether the court had jurisdiction to grant a stay of removal under 8 U.S.C. § 1252(g), which strips courts of jurisdiction over claims arising from the government’s execution of removal orders; and (2) whether Gakou could demonstrate a likelihood of success on the merits sufficient to warrant a stay.
  • The court held it lacked jurisdiction under § 1252(g), citing its precedent that “[a] request for stay of removal is a challenge to a removal order” within the ambit of that provision’s jurisdiction-stripping effect. Separately, the court noted that the Supreme Court had “effectively ratified third-country removal of the sort that Gakou faces” by granting certiorari in DHS v. D.V.D. while “still explicitly permitting the government to continue with third-country removals unabated pending full resolution on the merits.” Because Gakou failed to demonstrate “any meaningful probability of success on the merits,” no stay was warranted, and the court did not reach the remaining stay factors.

Unpublished decisions

• Bank of America, N.A. v. Ztar Mobile Inc., 25-11330, appeal from N.D. Tex.
  • Higginson, J. (King, Higginson, Douglas) (no oral argument), breach of contract, fraud
  • Affirming summary judgment for plaintiff on breach of contract claim.
  • Whether the district court properly granted summary judgment to Bank of America on its breach-of-contract claim against Ztar Mobile and its CEO, Kevin Haddad, where the defendants raised a fraudulent-inducement defense based on an oral and written representation—made seven months before contract execution—that a personal guaranty would be removed from the loan documents. The court also addressed whether an alleged oral promise to extend the loan term could support a separate fraudulent-inducement or fraud defense.
  • Under Texas law, Haddad could not establish justifiable reliance on a prior representation that the guaranty would be removed because the executed loan agreement unambiguously included the guaranty, a separate document was conspicuously titled “Continuing and Unconditional Guaranty,” and Haddad—an experienced businessman represented by in-house counsel—signed without reading the documents. As to the alleged oral promise to extend the loan, the court held that any such representation conflicted with the unambiguous third amendment and, in any event, rescission of that amendment would only reset the maturity date without relieving Ztar of its repayment obligations.

• Allemond v. Talos QN Exploration, L.L.C., 25-20567, appeal from S.D. Tex.
  • per curiam (Jones, Southwick, Duncan) (no oral argument), Outer Continental Shelf Lands Act, personal tort
  • Affirming judgment for defendant on OCSLA-venue claim arising under Louisiana tort law.
  • Whether a moving conductor pipe on an offshore oil platform constituted an unreasonably dangerous condition under Louisiana’s risk-utility balancing test, and whether the platform owner exercised operational control over the independent-contractor welder. The case arose under the Outer Continental Shelf Lands Act, applying Louisiana substantive law.
  • The court concluded the moving conductor was not unreasonably dangerous as to the plaintiff—an experienced welder who was hired to stabilize the very hazard that injured him and who was warned at least seven times about pinch points before the accident. The court distinguished Renwick v. PNK Lake Charles, noting the plaintiff there was not injured by the defect he was hired to repair. On operational control, the court found the issue was forfeited because Allemond never raised it before the district court.

• United States v. Marache, 25-20578, appeal from S.D. Tex.
  • per curiam (Stewart, Richman, Higginson) (no oral argument), criminal
  • Affirming judgment with limited remand to address clerical errors.
  • At issue on appeal was whether clerical errors in the written judgment—incorrectly identifying the count of conviction as “Count 10S” rather than Count 10 and misquoting the substance description—warranted correction under Federal Rule of Criminal Procedure 36.

• United States v. Garza-Gomez, 25-51072, appeal from W.D. Tex.
  • per curiam (King, Higginson, Douglas) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Gorbunov v. Blanche, 25-60565, petition for review of BIA order
  • per curiam (Clement, Oldham, Douglas) (no oral argument), immigration
  • Dismissing for lack of jurisdiction Russian citizen’s petition for review of BIA remand order.
  • At issue on petition was whether the court had jurisdiction to review the BIA’s decision where the BIA issued a general remand to the Immigration Judge for further proceedings, including consideration of a CAT claim, before the petitioner filed for review. The opinion addressed the distinction between general and limited BIA remands, the impact of the Supreme Court’s decision in Riley v. Bondi on finality of removal orders, and whether a premature petition for review can be cured by a later-occurring final order.
  • The BIA’s remand was general—not limited to withholding-only proceedings—so the removal order was not administratively final when the petition was filed. Under Moreira v. Mukasey, a premature petition is a nullity that cannot be cured by a later-arising final order. The court also rejected the law-of-the-case argument, holding that a motions panel’s denial of a motion to dismiss is merely provisional.

• Zarazua Hernandez v. Blanche, 25-60713, petition for review of BIA order
  • per curiam (Barksdale, Willett, Douglas) (no oral argument), immigration
  • Dismissing in part and denying in part petition for review of BIA order dismissing appeal of IJ decision.
  • At issue on the petition was whether the BIA abused its discretion in summarily dismissing the petitioner’s untimely appeal and rejecting his equitable-tolling argument, where counsel’s address was not properly updated in accordance with EOIR procedures. The petitioner also challenged the BIA’s use of a single-member decision rather than a three-member panel, and raised unexhausted timeliness and due-process arguments.
  • The court lacked jurisdiction to review the BIA’s discretionary choice to decide the appeal through a single member. The timeliness and due-process contentions were unexhausted. On equitable tolling, the court held the BIA did not abuse its discretion because counsel’s unsupported assertions about updating his address were not evidence, and even if counsel did update his address through the EOIR portal, EOIR procedures required a separate form submission for each individual case, which was not done.

• Day v. Amazon.com Services, L.L.C., 26-10155, appeal from N.D. Tex.
  • per curiam (Haynes, Graves, Ramirez) (no oral argument), employment discrimination, Rule 60(b)
  • Affirming denial of Rule 60(b) motion from dismissal of employment discrimination claims.
  • At issue on appeal was whether the court had jurisdiction to review the underlying Rule 12(b)(6) dismissal of a pro se plaintiff’s employment-discrimination claims (under the ADA and VEVRAA) when the plaintiff appealed only from the denial of a Rule 60(b) motion filed nearly a year after judgment, and whether the district court abused its discretion in denying that Rule 60(b) motion.
  • The court lacked jurisdiction over the underlying dismissal because the Rule 60(b) motion was filed well beyond 28 days and therefore did not extend the time to appeal. As to the Rule 60(b) motion itself, the plaintiff abandoned the issue through inadequate briefing—offering only conclusory assertions without identifying which Rule 60(b) ground warranted relief, applying the relevant legal standards, or citing supporting authority.

• Hilal v. Mendoza, 26-50242, appeal from W.D. Tex.
  • per curiam (Willett, Duncan, Engelhardt) (no oral argument), § 1983, amendment, service of process
  • Affirming dismissal of pro se § 1983 and other claims, and denial of leave to amend.
  • At issue on appeal was whether the district court violated due process by adopting the magistrate judge’s R&R despite uncertain service on the pro se plaintiff; whether the court abused its discretion in denying leave to amend where the proposed second amended complaint reasserted futile § 1983 claims (failure to investigate a theft) and added claims under §§ 1981 and 1985; and whether the court abused its discretion in denying reconsideration.
  • Due process was satisfied because the district court ordered supplemental service, the plaintiff ultimately received actual notice and an opportunity to be heard, and the court considered his response on the merits after assuming good cause for the delay. Leave to amend was properly denied as futile: the private-company defendants were not state actors, there is no constitutional right to a police investigation, and the §§ 1981 and 1985 claims lacked essential elements (no allegation of racial discrimination or conspiratorial motive). The denial of reconsideration was not an abuse of discretion.

• Cox v. Mitchell, 26-50301, appeal from W.D. Tex.
  • per curiam (Stewart, Richman, Higginson) (no oral argument), § 1983, municipal liability
  • Affirming dismissal of § 1983 and Monell claims.
  • At issue on appeal was whether a pro se plaintiff stated a plausible § 1983 claim arising from an altercation at the Uvalde County Courthouse, where a county judge allegedly seized the plaintiff’s delivery dolly, ordered him handcuffed, and temporarily took his phone. The appeal focused on Monell municipal liability (whether the county judge was a final policymaker), a “class-of-one” selective-enforcement equal-protection claim, and whether the district court erred in dismissing with prejudice without granting further leave to amend.
  • The Monell claim failed because the complaint contained only conclusory statements that Judge Mitchell exercised policymaking authority and alleged no specific facts about county policies, customs, or their connection to the judge’s actions. The selective-enforcement claim failed because the plaintiff did not allege that the judge was motivated by an improper consideration such as race, religion, or the desire to prevent the exercise of a constitutional right—mere allegations of targeting “without rational basis” and “ill will” were insufficient. The court rejected the leave-to-amend argument, noting the plaintiff never actually moved for further leave to amend. The district court also flagged the plaintiff’s misuse of artificial intelligence, noting he “continued to cite non-existent cases and misrepresent the propositions for which his citations stand.”