October 15, 2026, opinions

Posted on by tadbartlett

Designated for publication

  • Consumers’ Research v. Federal Communications Commission, 25-60535, petition for review of FCC order
    • Clement, J. (Elrod, Clement, Oldham) (no oral argument), administrative law
    • Granting petition for review of FCC creation of entity to administer universal service programs, and remanding to FCC.
    • The FCC collects billions of dollars annually from telecommunications carriers to fund universal service programs—Lifeline, High Cost, E-Rate, and Rural Health—through the Universal Service Fund. To administer the Fund, the FCC in 1997 directed the National Exchange Carrier Association (“NECA”) to create the Universal Service Administrative Company (“USAC”), a private, not-for-profit corporation incorporated under Delaware law. USAC estimates Fund expenses, collects carrier revenue projections, and submits those figures to the FCC for use in calculating a quarterly “contribution factor” that determines how much each carrier must pay. Petitioners—including Consumers’ Research (a nonprofit), Cause Based Commerce (a telecom reseller that pays directly into the Fund), and individual consumers—challenged the Fourth Quarter 2025 contribution factor of 38.1%, which was based largely on USAC’s projections of $2.25 billion in Fund expenses.
    • At issue on the petition was whether the FCC violated the Government Corporation Control Act (“GCCA”), 31 U.S.C. § 9102, by establishing USAC without specific congressional authorization to act as an agency or instrumentality of the United States.
    • The Fifth Circuit granted the petition for review, vacated the Fourth Quarter 2025 contribution factor, and remanded to the FCC for further proceedings. The court held that the FCC established USAC “to act as an agency” in administering the Universal Service Fund without a law specifically authorizing that action, in violation of the GCCA.
    • The court first confirmed jurisdiction. Cause Based Commerce had Article III standing based on a “classic pocketbook injury” from paying into the Fund, and the case was not moot because the quarterly contribution factor is “capable of repetition, yet evading review.” The court also held the GCCA challenge was timely under the Hobbs Act because the FCC’s reliance on USAC in each new contribution factor has “continuing application,” restarting the sixty-day filing clock.
    • On the merits, the court traced the history of the GCCA, enacted in 1945 after government corporations “had gotten out of hand, in both their number and their lack of accountability.” The GCCA requires that an agency may establish a corporation to act as an agency “only by or under a law of the United States specifically authorizing the action.” The court found USAC was indisputably “established” by the FCC (through NECA, which was itself an FCC creation) and that USAC was established “to act as an instrumentality of the FCC,” given that its “sole purpose” was “assist[ing] the FCC in the administration of the [universal-service] programs, as an agent and instrumentality of the FCC.”
    • The court rejected all three asserted bases for congressional authorization. First, the FCC’s general “necessary and proper” authority under 47 U.S.C. § 154(i) “is not infinitely elastic” and does not supply the specific authorization the GCCA demands. Second, Congress’s express authorization for NECA to administer only the Lifeline program under § 254(j) does not imply authorization for USAC to administer the entire multi-billion-dollar Fund—”[i]f anything, the text of § 254 suggests Congress actually meant to preclude private entities from administering [universal-service] programs other than Lifeline.” Third, Congress’s authorization for the FCC to use USAC to run two temporary COVID-era programs (the Affordable Connectivity Program and the Emergency Connectivity Fund) did not ratify USAC’s permanent appointment; the court was “loath to conclude that by authorizing the FCC to use USAC to administer two temporary, emergency measures—both of which ended in June 2024—Congress implicitly blessed USAC’s appointment as permanent administrator of the entire Universal Service Fund.” On remedy, the court applied vacatur as the default, finding that the FCC’s reliance on USAC was a “serious procedural deficiency” that could not be corrected on remand.
  • SEACOR Marine, L.L.C. v. GOL, L.L.C., 26-30021, appeal from E.D. La.
    • per curiam (Smith, Haynes, Engelhardt) (oral argument), Haynes, J., concurring; breach of contract, breach of fiduciary duty
    • Reversing summary judgment for defendant on breach of contract and fiduciary duty claims, and remanding for further proceedings.
    • SEACOR Marine owns and operates marine vessels it charters to offshore oil and gas companies. GOL is a vessel broker that SEACOR appointed as its agent under a Brokerage Agreement “solely for the purpose of obtaining charters for [SEACOR’s] vessels.” Pursuant to that agreement, GOL brokered SEACOR’s vessels to Cox Operating, which owed SEACOR $2.7 million when Cox filed for bankruptcy. GOL included SEACOR’s $2.7 million in its own $24.8 million prepetition claim against Cox—of which “at least 95%” consisted of claims belonging to third-party vessel owners like SEACOR. Under a Trade Agreement approved by the bankruptcy court, Cox paid GOL $13 million toward the $24.8 million claim. GOL paid none of that money to SEACOR; instead, it distributed the funds to itself and closely related entities owned by GOL’s principals, paying itself “more than triple its own alleged claim.”
    • At issue on appeal was (1) whether the Trade Agreement barred GOL from remitting any of the $13 million to SEACOR; (2) whether the Brokerage Agreement required GOL to pay SEACOR from those funds; and (3) whether GOL breached its fiduciary duties as SEACOR’s agent.
    • The court held that the plain text of the Trade Agreement supported SEACOR’s position. The $13 million was expressly to go “towards GOL’s Prepetition Claim,” which admittedly included SEACOR’s $2.7 million, and the agreement required GOL to apply the payment to “any amount secured by a lien”—and SEACOR’s balance was secured by a lien. There was therefore at least a question of fact whether a portion of the payment was for SEACOR’s invoices.
    • The court rejected the district court’s reading that the Trade Agreement implicitly restricted GOL to paying only vendors that continued providing services to Cox. The obligation to continue supplying services “applied only to GOL—not to SEACOR or any other vendor,” and the agreement expressly provided that “[t]he inability of Third-Party Vessel Interests to provide services to GOL or [Cox] shall not be a default by GOL.” The court criticized the lower court’s reliance on the Trade Agreement’s alleged “purpose” and “aim,” noting that under maritime contract principles, “a court should not look beyond the written language of the contract to determine the intent of the parties unless the disputed language is ambiguous,” and “courts will not rewrite agreements to insert provisions parties could have included or to imply restraints for which they have not bargained.”
    • On the fiduciary duty claims, the court noted that GOL conceded it was SEACOR’s agent for the limited purpose of obtaining charter hire and therefore owed SEACOR fiduciary duties, including duties of loyalty, not to self-deal, and not to mingle the principal’s property. Because the $13 million “arguably was for at least some of Cox’s debts to SEACOR” and nothing in the Trade Agreement prevented GOL from paying SEACOR, “whether GOL was required to pay SEACOR as SEACOR’s fiduciary raises genuine disputes of material fact and law.”
    • Judge Haynes concurred in the reversal and remand for trial on the genuine issues of material fact, but stated she “would hold that SEACOR is not entitled to the entire amount it gave because GOL lost 24.8 million dollars and received only 13 million dollars from Cox. So, at most, SEACOR could receive only about 52 percent (about 1.4 million dollars).”

Unpublished decisions

  • United States v. Jimison, 25-11387, appeal from N.D. Tex.
    • per curiam (Clement, Haynes, Ramirez) (no oral argument), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Martinez v. Hidalgo County, 25-40464, appeal from S.D. Tex.
    • per curiam (King, Smith, Ramirez) (oral argument), sovereign immunity, qualified immunity, municipal liability, amendment
    • Affirming dismissal of § 1983 claims on sovereign immunity and qualified immunity grounds.
    • This case arose from the fatal shooting of Guillermo Sanchez by two Hidalgo County sheriff’s deputies during a domestic disturbance call. Deputies responded to a 911 call about Sanchez, who was described as mentally ill and aggressive toward his mother. After Mrs. Sanchez—a co-resident—was heard on bodycam footage shouting at the deputies to “break down the door,” the deputies entered the home, where Sanchez confronted them with an 8-inch kitchen knife, refused commands to drop it, and advanced toward the deputies, who then fired their weapons. Plaintiffs brought claims under 42 U.S.C. § 1983 (warrantless entry, warrantless arrest, and excessive force) against the deputies individually and in their official capacities, as well as claims against Hidalgo County under the Texas Tort Claims Act.
    • At issue on appeal was (1) whether the TTCA waived sovereign immunity for the county where the claims sounded in intentional tort; (2) whether the deputies were entitled to qualified immunity on § 1983 claims for warrantless entry, warrantless arrest, and excessive force; (3) whether Monell liability could attach to the county absent an underlying constitutional violation; and (4) whether the district court erred in denying plaintiffs’ Rule 59(e) motion to alter or amend judgment based on newly proffered evidence.
    • TTCA Claim: The TTCA does not waive sovereign immunity for intentional torts, and the deputies’ conduct—shooting and handcuffing—was intentional, so Hidalgo County retained immunity.
    • Warrantless Entry: Mrs. Sanchez, as a co-resident, had common control of the home and gave consent when she shouted “break down the door” in response to escalating circumstances; no genuine dispute existed as to the identity of the speaker.
    • Warrantless Arrest: The deputies had probable cause to arrest Sanchez for family violence based on Mrs. Sanchez’s statements, visible injuries, and Sanchez’s erratic behavior; Texas law explicitly authorized warrantless arrest for family violence offenses.
    • Excessive Force: Under the totality of the circumstances—including Sanchez’s armed approach in a confined space—the use of deadly force was not objectively unreasonable, applying Elizondo v. Green. The number of shots fired (eleven) was not excessive because the deputies ceased firing when Sanchez fell, consistent with Plumhoff v. Rickard. Handcuffing injuries were de minimis and insufficient to sustain an excessive force claim.
    • Monell Liability: Absent any underlying constitutional violation, there can be no municipal liability under § 1983.
    • Rule 59(e) Motion: The newly proffered evidence—a county “High Risk Situation” policy and expert opinions—did not create new genuine factual disputes and was available to plaintiffs before the summary judgment ruling.
  • United States v. Day, 25-50534, appeal from W.D. Tex.
    • per curiam (King, Higginson, Douglas) (no oral argument), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Percelle v. Freedom Mortgage Corp., 25-50962, appeal from W.D. Tex.
    • per curiam (Higginbotham, Smith, Ho) (no oral argument), foreclosure
    • Affirming summary judgment in favor of lender.
    • Pro se plaintiffs Barry and Yolanda Percelle appealed summary judgment in favor of Freedom Mortgage Corporation and Real Star Property Management. They raised arguments regarding the denial of a TRO, procedural due process, spoliation and concealment, and removal defects. The Fifth Circuit held that the Percelles forfeited any challenge to the grant of summary judgment by failing to file a response to the summary judgment motions below, and further found that, even under liberal construction, they abandoned their appellate issues through inadequate briefing.
  • United States v. Vazquez, 26-10032, appeal from N.D. Tex.
    • per curiam (King, Higginson, Douglas) (no oral argument), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • United States v. O’Connor, 26-10221, appeal from N.D. Tex.
    • per curiam (King, Higginson, Douglas) (no oral argument), criminal, compassionate release
    • Affirming denial of motion for compassionate release.
    • Michael O’Connor, a federal prisoner, appealed the denial of his motion for compassionate release under 18 U.S.C. § 3582(c)(1)(A)(i). He argued the district court failed to address all his arguments, that his rehabilitation, medical conditions, and low recidivism risk warranted a sentence reduction, and that the court misconstrued his motion as a § 2255 motion. The Fifth Circuit held that the district court’s balancing of the § 3553(a) factors—emphasizing the seriousness of the offense (possession of hundreds of child pornography images, including images of infants, and a prior criminal history including sexual assault of a minor), the need for deterrence, and just punishment—was not an abuse of discretion. The court further held the district court correctly determined that challenges to the legality of the original sentencing were not cognizable in a compassionate-release motion.
  • United States v. Britt, 26-10251, appeal from N.D. Tex.
    • per curiam (Elrod, Richman, Duncan) (no oral argument), criminal, compassionate release
    • Dismissing as frivolous appeal from denial of motion for compassionate release.
    • Federal prisoner L. J. Britt moved for leave to proceed IFP on appeal from the denial of his compassionate-release motion under 18 U.S.C. § 3582(c)(1)(A)(i). He argued that he established extraordinary and compelling reasons for release, that the district court failed to weigh his post-sentencing rehabilitation, that there existed unwarranted sentencing disparities under current law, and that the district court abused its discretion by not considering his reply brief. The Fifth Circuit found no arguable abuse of discretion; the district court’s order stated it had considered the parties’ pleadings and applicable law and concluded that the § 3553(a) factors weighed heavily against relief. Britt’s arguments amounted to mere disagreement with that balancing, which is insufficient for reversal. The reply brief was filed after the court’s denial order and largely rehashed prior arguments, so the failure to consider it was not an abuse of discretion.