Take the Fifth

Designated for publication

• La Unión del Pueblo Entero v. Federal Emergency Management Agency, 24-40756, appeal from S.D. Tex.
  • Higginson, J. (Southwick, Higginson, Douglas) (oral argument), Freedom of Information Act, administrative law
  • Reversing in part summary judgment for FEMA on plaintiff organization’s FOIA challenge, reversing dismissal of case with prejudice, finding that additional record development was required to determine equitable relief, and remanding for further development of the record.
  • La Unión del Pueblo Entero (LUPE), a Texas nonprofit that helps low-income residents access federal disaster relief, sued FEMA and the Department of Homeland Security under FOIA and the APA. LUPE alleged that FEMA relies on unpublished “secret rules” when deciding disaster-relief eligibility under the Individuals and Households Program (IHP) and that FEMA has a policy or practice of violating FOIA’s “reading-room provision,” 5 U.S.C. § 552(a)(2), which requires agencies to proactively post online certain policy statements, staff manuals, and frequently requested records. After years of FOIA requests that yielded no substantive responses, LUPE sought an injunction requiring FEMA to publish its IHP eligibility standards in its electronic reading room. FEMA ultimately produced thousands of pages of previously unreleased documents—including inspection guidelines used to decide IHP claims—only after court intervention.
  • At issue on appeal was (1) whether FOIA’s remedial provision, § 552(a)(4)(B), contains two distinct clauses granting courts separate powers—an “enjoin-from-withholding” clause and an “order-production” clause; (2) whether the enjoin-from-withholding clause empowers courts to issue prospective injunctive relief; (3) whether courts may order agencies to post materials online (i.e., relief extending to the public, not just the individual complainant); and (4) whether LUPE plausibly alleged an ongoing policy or practice of FOIA violations.
  • The court held that § 552(a)(4)(B) consists of two distinct clauses—one granting courts jurisdiction “to enjoin the agency from withholding agency records” and another “to order the production” of improperly withheld records—joining the Second and Ninth Circuits. Three textual features supported this reading: the coordinating conjunction “and,” the provision’s two separate infinitives with distinct postpositive modifiers, and the canon against superfluity. The court further held that the modifier “from the complainant” qualifies only the second (order-production) clause, meaning courts may order relief benefiting the public—not just the individual plaintiff—in reading-room cases, since “the violation at issue is inherently one about public access.” In so holding, the court parted ways with the D.C. Circuit’s CREW decision but aligned with the Second Circuit’s NYLAG and the Ninth Circuit’s ALDF.
  • On the merits, the court found that LUPE plausibly alleged FEMA has an ongoing practice of violating the reading-room provision. Each factor in the Judicial Watch test favored LUPE: the public interest in disclosure was high given that FEMA distributes $32 billion in IHP aid and the process for obtaining it has been described as “Kafkaesque”; FEMA’s declaration of future compliance was “modest” and “weak” (echoing the D.C. Circuit’s language in Payne); and FEMA has a long history of FOIA violations, including a prior ruling that it used an unpublished rule to decide hurricane claims. The court cautioned, however, that “courts should use caution when determining whether to issue such relief,” including to “avoid issuing a perpetual follow-the-law injunction,” and remanded for the district court to determine whether the specific IHP documents at issue are of the kind required to be posted under § 552(a)(2) and, if so, the appropriate scope of relief.

• United States v. Estrada, 25-50963, appeal from W.D. Tex.
  • per curiam (Jones, Southwick, Duncan) (no oral argument), criminal, compassionate release
  • Affirming denial of early termination of supervised release term for prisoner who had gained compassionate release from imprisonment.
  • Jose Estrada pleaded guilty in the Eastern District of Pennsylvania to conspiring to distribute more than one kilogram of heroin and was sentenced to 240 months’ imprisonment (later reduced to 188 months) and five years of supervised release. In 2024, the sentencing court granted compassionate release, reducing imprisonment to time served but keeping the five-year supervised release term with an initial six months of home detention. On the same day he was released, Estrada filed a notice of appeal challenging the home-detention condition, and five days later the Pennsylvania court transferred jurisdiction over his supervision to the Western District of Texas under 18 U.S.C. § 3605. After the Third Circuit affirmed the compassionate-release order, Estrada moved in Texas to terminate his supervised release, arguing both that the transfer was void because it was entered while his appeal was pending and that, on the merits, his age and health warranted early termination. The Texas court denied his motion.
  • At issue on appeal was (1) whether a pending appeal from a compassionate-release order divested the sentencing court of authority to transfer supervision under § 3605; and (2) whether the district court abused its discretion in denying early termination of supervised release.
  • On jurisdiction, the court held that a notice of appeal “divests the district court of its control over those aspects of the case involved in the appeal,” quoting Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58 (1982), but does not strip authority over all matters. Because Estrada’s appeal challenged the home-detention condition—not the transfer—the transfer order did not affect the matter on appeal: “It did not lengthen or shorten the term, add or remove a condition, or alter the home-detention requirement.” The court also rejected Estrada’s argument that if a notice of appeal froze transfer power, “it would have either frozen Estrada in place in Pennsylvania . . . or left him with no supervision in Texas until the Third Circuit appeal concluded. Neither can be Congress’s purpose in the transfer statute.”
  • On the merits, the court found no abuse of discretion. The district court properly grounded the denial in “adequate deterrence” and “protect[ing] the public”—permissible considerations under §§ 3553(a)(2)(B) and (C)—and its references to Estrada’s original offense and criminal history were not impermissible retribution under Esteras v. United States, 606 U.S. 185 (2025), but rather informed the deterrence and public-protection analysis. As the court noted, the statute “confers broad discretion,” and “[c]ompliance and rehabilitation are what supervision is designed to produce, and a district court does not abuse its discretion by declining to treat them as sufficient reason to end supervision early.”

• Jackson Federation of Teachers v. Fitch, 25-60496, appeal from S.D. Miss.
  • Smith, J. (Smith, Haynes, Engelhardt) (oral argument), Haynes, J., concurring in judgment; First Amendment. preliminary injunction, judge disqualification, AI hallucinations
  • Vacating preliminary injunction of state’s DEI-ban, and reassigning case to a new district court judge on remand due to extensive AI hallucinations in TRO.
  • In April 2025, Mississippi enacted House Bill 1193, a law designed to prevent public education funds from being spent on diversity, equity, and inclusion (“DEI”) initiatives. The law prohibits public schools and colleges from mandating DEI programs or diversity training, punishing students for disagreeing with DEI concepts, endorsing or promoting DEI through course materials, and otherwise engaging in DEI methods. It excepts scholarly research, student organization activities (unless state-funded), creative works, and actions necessary to comply with accreditation standards or state and federal law. A group of teachers, professors, students, parents, and activist organizations filed a pre-enforcement facial challenge, claiming the law violates the First Amendment and is void for vagueness. District Judge Henry Wingate issued a TRO that was riddled with fabricated facts—naming plaintiffs and defendants not in the case, citing a nonexistent Fourth Circuit case, referencing “declarations” from individuals who may not even exist, and misquoting the statute. After it came to light, Judge Wingate admitted a law clerk had used AI to draft an earlier version of the TRO, replaced it with a seemingly corrected version backdated to the original date, and characterized the errors as “clerical.” The corrected TRO still contained an AI-hallucinated case citation, discovered at oral argument. Judge Wingate then granted a preliminary injunction enjoining enforcement of H.B. 1193 statewide.
  • At issue on appeal was (1) whether the district court’s preliminary injunction was legally sound under the First Amendment facial-challenge framework set forth in Moody v. NetChoice, 603 U.S. 707 (2024); (2) whether the case should be reassigned to a different district judge on remand; and (3) the proper scope and constitutional analysis of H.B. 1193.
  • The court excoriated the district judge, stating: “This district judge carelessly exercised his Article III power by issuing sloppy edicts based on falsehoods and fabrications.” It found the preliminary injunction legally deficient because it failed to apply the two-step Moody framework, which requires a court first to assess the scope of the challenged law, then to compare its unconstitutional applications against its constitutional ones and determine whether the “ratio of unlawful-to-lawful applications” is “lopsided” enough to sustain a facial challenge. Judge Wingate instead referred to the Moody framework as only “supposedly” required and took plaintiffs’ assertions at face value—”[t]hat is legal analysis so poor that it hardly deserves the label.” The court also found that the district court fundamentally misread Trump v. CASA, Inc., 145 S. Ct. 2540 (2025), citing its instruction to tailor injunctive relief narrowly as support for “all-or-nothing” injunctions—”almost exactly the opposite of what CASA says.”
  • On reassignment, the court applied its two tests for remand reassignment and found both satisfied. Under the first test, the judge’s decision to simply excise the AI-hallucinated facts without explaining why the order should still stand “may already evince a ‘substantial difficulty’ in setting aside views based on ‘findings determined to be erroneous,'” and “the waste of the tainted proceedings is ‘already on the balance sheet.'” Under the second test, “an objective observer might question the impartiality of the proceedings.”
  • The court then provided detailed instructions for the new district judge, clarifying that H.B. 1193 regulates public schools and colleges—not students—and that most of its sweep falls within the state’s plenary police power over government speech and curricula under Chiras v. Miller, 432 F.3d 606 (5th Cir. 2005). Where personal (non-curricular) speech of teachers or professors is implicated, the court directed application of the Garcetti framework as outlined in Kennedy v. Bremerton School District, 597 U.S. 507 (2022). The court also rejected the Eleventh Circuit’s approach in Pernell v. Florida Board of Governors, which held that Kennedy‘s Garcetti framework does not apply in the university context, siding instead with Judge Lagoa’s dissent. On vagueness, the court held that a facial void-for-vagueness challenge can succeed only where a law “is so unclear” that people “must necessarily guess at its meaning” “in all of its applications,” and that terms like “promote,” “support,” and “expressing or celebrating views” have survived vagueness challenges.
  • Judge Haynes concurred in the judgment (vacatur and remand) but wrote separately to emphasize that “it is very important to make sure that teachers at school are in no way limited or forbidden from teaching the students not to discriminate as set out in Title VII, including race, color, religion, sex, gender, etc.”

Unpublished decisions

• Schnatzmeyer v. State Farm Lloyds, 25-11369, appeal from N.D. Tex.
  • per curiam (Stewart, Richman, Higginson) (no oral argument), insurance, timeliness, forfeiting argument
  • Affirming summary judgment for insurer.
  • Homeowners Mark Schnatzmeyer and Carole Sandlin sued their insurer, State Farm Lloyds, over property damage from a February 2021 winter freeze. State Farm inspected the property, paid $4,261.52, and closed the claim on March 12, 2021. Nearly two years later, after a second freeze in December 2022, the insureds revisited the 2021 claim, asserting previously unreported ceramic tile damage. State Farm reinvestigated but stood by its original determination. The insureds sued in November 2023, raising claims for breach of contract, bad faith, misrepresentation, fraud, conspiracy, and violations of the Texas Prompt Payment of Claims Act (TPPCA).
  • At issue on appeal was whether the statute of limitations barred the insureds’ claims related to the 2021 property damage, including (1) contractual and extracontractual causes of action, (2) bad faith, (3) misrepresentation, fraud, and conspiracy, and (4) their TPPCA claim.
  • The court held that State Farm’s March 12, 2021, determination letter was a final denial that triggered the two-year limitations period, and that the insurer’s later reconsideration did not restart the clock because State Farm never withdrew or changed its initial decision. Because the insureds did not sue until November 2023—well past the contractual and statutory deadlines—all four categories of claims were time-barred. The court also noted that the insureds’ misrepresentation argument was forfeited because it was not raised before the district court, and that post-loss communications cannot support fraud claims under Texas law.

• United States v. Puac-Ramirez, 25-40718, appeal from S.D. Tex.
  • per curiam (Barksdale, Willett, Douglas) (no oral argument), criminal, sentencing
  • Affirming conviction and sentence for illegal reentry.
  • Following a jury trial, Miguel Angel Puac-Ramirez was convicted of illegal reentry under 8 U.S.C. § 1326(a) and sentenced to time served plus one year of supervised release. Puac challenged his within-Guidelines sentence as both procedurally and substantively unreasonable, arguing that the district court failed to make individualized findings justifying supervised release for a deportable alien and relied on a miscalculated Guidelines range.
  • At issue on appeal was (1) whether the district court procedurally erred by not articulating individualized reasons for imposing supervised release on a deportable alien and by relying on an incorrect Guidelines range; and (2) whether the one-year term of supervised release was substantively unreasonable.
  • The Fifth Circuit affirmed, reviewing only for plain error because Puac failed to preserve his objections below. On procedural reasonableness, the court found no clear-or-obvious error: the district court stated it considered the Guidelines and § 3553 factors, and its warning about immigration-related conditions indicated implicit consideration of the deterrent effect of supervised release. Although the PSR incorrectly listed the supervised-release range as one to three years, the court imposed a permissible one-year term and did not expressly rely on the erroneous calculation. On substantive reasonableness, a rebuttable presumption of reasonableness applied to the within-Guidelines sentence, and Puac’s arguments amounted to mere disagreement with the court’s weighing of the relevant factors.

• Rincon v. Ibarra, 25-40820, appeal from S.D. Tex.
  • per curiam (Davis, Stewart, Duncan) (no oral argument), qualified immunity, municipal liability
  • Affirming dismissal of Monell claims and summary judgment dismissal of officer defendants on qualified immunity.
  • Pro se plaintiff Ismael Rincon sued the City of Laredo and three police officers after he was detained, arrested, and had his car searched and impounded while parked alone in a vacant lot at approximately 1:29 a.m. during a COVID-19 curfew on February 6, 2021. When officers approached, Rincon refused to identify himself; a frisk produced what appeared to be a pellet gun, and Rincon stated he had “plenty” more weapons. The district court dismissed the failure-to-train claim against the City and later granted the officers qualified immunity on summary judgment.
  • At issue on appeal was whether the officers were entitled to qualified immunity on Rincon’s claims of false arrest (based on the curfew violation, failure to identify, and unlawful carrying), unreasonable search and seizure, and whether the City was liable under § 1983 for failure to train.
  • On the false-arrest claim, the court held that the officers had at least arguable probable cause to arrest Rincon under the COVID-19 curfew order because a reasonable officer could have believed the order applied to someone parked alone in a vacant lot during curfew hours with no apparent business purpose—and no contemporaneous decision clearly established otherwise. Because arguable probable cause supported the arrest, the false-arrest claims based on unlawful carrying and failure to identify also fell under qualified immunity. On the search and seizure, the court held that the discovery of what appeared to be a holstered handgun during the frisk, combined with Rincon’s statement about additional weapons, gave the officers a reasonable basis for a protective search of the passenger compartment and subsequent inventory of the impounded vehicle. The court also affirmed dismissal of the § 1983 claim against the City, noting Rincon’s brief barely addressed the district court’s reasoning.

• Tuang v. Blanche, 25-60394, petition for review of BIA order
  • per curiam (Jones, Clement, Richman) (oral argument), immigration
  • Denying Burmese citizen’s petition for review of BIA order reversing IJ’s grant of deferral of removal under the Convention Against Torture.
  • Pau Than Tuang, a native of Burma (Myanmar) of Chin ethnicity and Christian faith, entered the United States as a refugee in 2012 and became a lawful permanent resident in 2017. In 2021, he pleaded guilty to forcible sodomy of a child and lewd molestation charges in Oklahoma. Upon release from prison, removal proceedings were initiated. Tuang conceded removability but sought deferral of removal under the Convention Against Torture (CAT). An immigration judge granted deferral, finding it more likely than not that Tuang would face forced conscription and torture at the hands of Burma’s military junta based on his ethnicity and religion. The BIA reversed, concluding the IJ’s predictive findings of fact were clearly erroneous and ordering Tuang’s removal.
  • At issue on the petition were (1) whether the BIA improperly conducted de novo factual review rather than applying the clearly erroneous standard when it reversed the IJ’s findings; (2) whether substantial evidence supported the BIA’s conclusion that Tuang failed to show it was more likely than not he would be tortured; and (3) whether the BIA was required to remand to the IJ rather than entering its own order of removal.
  • The court found that the BIA correctly identified and applied the clearly erroneous standard of review. Examining each link in the IJ’s chain of reasoning, the court agreed with the BIA that: (a) Tuang failed to show it was more likely than not he would be forcibly conscripted, given that Burma planned to draft only 60,000 out of 14 million eligible people per year and the evidence from Thailand showed only a few dozen conscripted out of 144,000 deportees; (b) the evidence did not support a finding that Tuang would be assigned dangerous duties or used as a human shield based on his ethnicity or religion if conscripted; and (c) the IJ’s conclusion that Tuang would face disproportionate punishment based on his Chin identity and Christian faith was speculative. The court also held the BIA was not required to remand because it did not engage in independent factfinding—it simply determined the IJ’s pivotal factual findings were clearly erroneous, and Tuang had not met his burden of proof.

• Zimmer v. Estrada, 26-10046, appeal from N.D. Tex.
  • per curiam (Davis, Stewart, Duncan) (no oral argument), Americans with Disabilities Act, § 1983
  • Affirming dismissal of plaintiff’s claims arising from dismissal from airport volunteer program.
  • Pro se plaintiff Kevin Zimmer, a doctoral student at MIT who lives in Dallas and alleges he has autism, sued three City of Dallas employees and the City after he was dismissed from Love Field Airport’s volunteer “Love Helpers” program and had his airport identification card revoked. Zimmer claimed the real reason for his dismissal was that defendants perceived him as “odd” and “suspicious” because of traits flowing from his autism. He asserted claims under Title II of the ADA, Section 504 of the Rehabilitation Act, 42 U.S.C. § 1983, and state law, seeking only injunctive relief.
  • At issue on appeal was (1) whether Zimmer plausibly alleged he was excluded from the program “by reason of his disability” as required under the ADA and Rehabilitation Act; (2) whether his disparate-impact claim was adequately pleaded; (3) whether he stated a due-process claim or a Monell claim against the City; and (4) whether the district court abused its discretion in dismissing with prejudice and denying a second opportunity to amend.
  • The court agreed that Zimmer failed to plausibly allege his exclusion was “by reason of his disability” because he never alleged he disclosed his autism diagnosis to anyone in the program, and being perceived as “odd” or socially awkward does not equate to knowledge of autism. His disparate-impact claim failed because he pleaded no facts showing Parker’s subjective view that oddness was a “red flag” actually had a disparate effect on autistic individuals. The due-process claim failed for lack of a cognizable property or liberty interest in a volunteer position. The Monell claim and state-law claims were forfeited because Zimmer’s opening brief did not address the district court’s reasoning on those issues. The court found no abuse of discretion in denying further amendment because Zimmer never identified new facts he would plead.

• United States v. Rivas-Gonzalez, 26-50199, appeal from W.D. Tex.
  • per curiam (Stewart, Richman, Higginson) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.