Take the Fifth

Designated for publication

• Rand v. Eyemart Express, L.L.C., 25-10784, appeal from N.D. Tex.
  • Higginson, J. (Haynes, Higginson, Ho) (oral argument), standing, breach of contract, Federal Wiretap Act
  • Reversing dismissal of suit based on use of Meta “Pixel” on defendant’s website, on standing grounds, and remanding.
  • Eyemart Express operates retail stores and a website where customers browse products, purchase prescription eyewear, and schedule eye exams. Eyemart installed Meta’s “Pixel” tracking tool on its website, which collected users’ browsing activity—including searches for prescription eyewear, product viewing information, and appointment scheduling data—and shared it with Meta (Facebook’s parent company) without users’ knowledge or consent. Five Facebook users who used the Eyemart website brought a putative class action asserting claims under the Federal Wiretap Act, the Missouri Wiretap Act, the Illinois Eavesdropping Act, intrusion upon seclusion, and breach of contract, alleging that the Pixel disclosed their individually identifiable health information (“IIHI”) to Meta. The district court dismissed the case with prejudice, finding the “Search Plaintiffs” did not adequately allege they shared IIHI with Eyemart and that the “Prescription Plaintiffs” failed to plead that their IIHI was actually shared with Meta.
  • At issue on appeal was (1) whether the plaintiffs had Article III standing based on the alleged unauthorized disclosure of private health information via the Pixel; whether the Search Plaintiffs adequately alleged that they shared IIHI with Eyemart; and whether the Prescription Plaintiffs adequately alleged that their IIHI was disclosed to Meta through the Pixel.
  • The court held that all plaintiffs had Article III standing, joining several sister circuits in concluding that unauthorized disclosure of private browsing activity and personal information via the Pixel constitutes a cognizable injury in fact analogous to the common law torts of intrusion upon seclusion and public disclosure of private facts. The court noted that the health information at issue here is “inherently sensitive and personal,” making the analogy even stronger than in cases involving media consumption or shopping habits.
  • On the merits, the court found the district court erred in holding that the Search Plaintiffs did not share IIHI with Eyemart. The court emphasized that IIHI under HIPAA’s definition is not limited to specific diagnoses—it encompasses information that “relates to” a health condition or the provision of healthcare. “By virtue of its position as a healthcare products and services provider, activity on Eyemart’s Site pertains to individuals’ vision.”
  • As to the Prescription Plaintiffs, the court found the district court made “several impermissible inferences” from a demonstrative figure “in the light most favorable to Eyemart, rather than to Plaintiffs” and improperly relied on a single illustrative exhibit while “expressly ignoring other allegations.” The court stressed that under Rule 12(b)(6), district courts “‘must consider the complaint in its entirety.'” Taking the full range of factual allegations as true, plaintiffs adequately pleaded that the Pixel shared their IIHI with Meta.

• Lucio v. Brownsville Independent School District, 25-40746, appeal from S.D. Tex.
  • Higginson, J. (Stewart, Higginson, Ho) (no oral argument), Ho, J., dissenting in part; First Amendment, sec. 1983
  • Affirming dismissal of First Amendment and Fifth Amendment claims.
  • Coach and teacher Marc Lucio was invited to a Brownsville ISD board meeting to celebrate his TPSA team’s success at a state competition. During a receiving line, Lucio shook the hands of some board members but refused to shake the hands of several others, instead saying “Thank you. God bless you.” He alleged his refusal was motivated by both personal animosity—stemming from the district’s handling of a 2022 incident involving his minor son M.A.L.—and a desire not to appear to politically endorse the officials. Lucio received a “Notice of Warning” citing him for violating a school policy requiring employees to relate to colleagues “with respect, courtesy, and in a professional manner,” and was later forced to transfer schools. Plaintiffs (Lucio, his wife, and their minor son) brought § 1983 claims alleging violations of the First, Fourth, and Fifth Amendments and the Texas Constitution.
  • At issue on appeal was: (1) whether M.A.L.’s Fifth Amendment rights were violated by BISD’s interrogation of him during the 2022 incident; and (2) whether Lucio’s refusal to shake hands constituted protected speech under the First Amendment, specifically whether he spoke as a private citizen or as a public employee.
  • The Fifth Amendment claim failed because, under Chavez v. Martinez, 538 U.S. 760 (2003), “the mere use of compulsive questioning” does not violate the Fifth Amendment. A Fifth Amendment violation requires that an involuntary confession be used against the defendant in a criminal case, which was not alleged here.
  • On the First Amendment claim, the court applied the Pickering-Garcetti framework and found plaintiffs failed to adequately allege that Lucio was acting as a private citizen rather than in his capacity as a public employee. The court distinguished Kennedy v. Bremerton School District, noting that unlike the coach’s post-game prayer in Kennedy, Lucio’s actions “occurred during the board meeting that he was invited to in his capacity as a coach, in the presence of and while the board members were congratulating the students he coached.” The court concluded his actions “‘ow[ed their] existence’ to his responsibility as a coach.”
  • The Texas Constitution Article I, § 8 claim also failed for the same reasons, as plaintiffs did not show § 8 provides greater protections than the First Amendment.
  • Judge Ho agreed on the Fifth Amendment claim but dissented on the First Amendment issue, contending that whether Lucio spoke as a private citizen or as a public employee is a “fact question” that could not be resolved at the motion to dismiss stage. He argued the majority improperly weighed competing allegations and “selectively credit[ed] some of the complaint’s allegations over others.” “Construing the complaint in Plaintiffs’ favor, one could plausibly conclude that Lucio spoke in his personal capacity. Taking him at his word, he participated in a ‘purely political’ awards ceremony—that participation wasn’t within the scope of his ordinary coaching responsibilities—and BISD officials retaliated against him for expressing political views that they found personally offensive. That should be enough to overcome a motion to dismiss.”

• Sosnava Rodriguez v. Vergara (consolidated with Villegas Angel v. Mullin and Gomez Alvarado v. Vergara), 26-50183, 26-50219, 26-50221, appeals from W.D. Tex.
  • Wilson, J. (joined by Elrod, Jones, Smith, Richman, Willett, Ho, Duncan, Engelhardt, Oldham), Richman, J., concurring in judgment; Ho, J., concurring; Oldham, J., concurring; Southwick, J., dissenting (joined by Stewart, Graves, Higginson, Douglas, Ramirez); Haynes, J., dissenting; Douglas, J., dissenting (joined by Stewart, Graves, Higginson, Ramirez); Higginson, J., dissenting (joined by Stewart, Southwick, Graves, Douglas, Ramirez) (oral argument); en banc, immigration, habeas corpus, due process
  • After July 2, 2026, divided panel (Southwick, Graves, Wilson; Graves, J., specially concurring; Wilson, J., dissenting) affirmed habeas relief for immigrant-detainee petitioners, reversing habeas relief in 159 pages of various majority, concurring, and dissenting opinions on a 10-7 en banc result.
  • Three noncitizens—Ignacio Sosnava Rodriguez (a Mexican national residing in the U.S. without admission for over 22 years), Alejandro Villegas Angel (a Mexican national present since 2011 with two U.S.-citizen children), and Miguel Angel Gomez Alvarado (a Honduran national present since 2012 with one U.S.-citizen child)—were detained by ICE following traffic stops and placed in removal proceedings under 8 U.S.C. § 1225(b)(2)(A), which mandates detention of “applicants for admission” who are not “clearly and beyond a doubt entitled to be admitted.” Each filed habeas petitions arguing that detention without individualized bond hearings to assess dangerousness and flight risk violated their Fifth Amendment due process rights. The district courts granted habeas relief and ordered release, and a divided Fifth Circuit panel affirmed. The en banc court then took the cases sua sponte.
  • At issue on appeal was (1) whether unadmitted aliens detained under § 1225(b)(2)(A) pending removal proceedings have a constitutional right to individualized bond hearings on dangerousness and flight risk under the Fifth Amendment’s Due Process Clause; and (2) whether the duration of petitioners’ detention raised constitutional concerns.
  • The majority held that because petitioners were never “admitted” to the United States, they are “applicants for admission” under § 1225 and may not assert a right to further process beyond what Congress has provided in § 1225(b)(2)(A). Citing DHS v. Thuraissigiam, 591 U.S. 103 (2020), the court reasoned that “admission status—not physical presence—informs what procedural rights are available to an alien.”
  • The majority further held that even if petitioners could bring a procedural due process challenge, it would fail because the facts they sought to prove at bond hearings—dangerousness and flight risk—”are irrelevant to detention under § 1225(b)(2)(A).” Relying on Connecticut Dep’t of Public Safety v. Doe, the court reasoned that “due process does not entitle [Petitioners] to a hearing to establish a fact that is not material under [the] statute.”
  • On substantive due process, the majority applied rational-basis review, finding petitioners had no fundamental right to freedom from custody pending removal. Detention was rationally related to the legitimate government interest of ensuring aliens appear for removal proceedings. The court distinguished Zadvydas v. Davis, 533 U.S. 678 (2001), which addressed post-removal-order detention where removal was no longer practically attainable, noting that petitioners’ removal remained viable and their detention would end when proceedings concluded.
  • On duration, the majority held that so long as detention has “a definite termination point”—removal or release—continued confinement without a bond hearing does not offend due process. Petitioners had been detained for periods ranging from three weeks to three months.
  • Judge Ho concurred, writing that the case presented a “clear and stark choice” between national sovereignty and the dissenters’ position, which he characterized as granting “illegal aliens” a “de facto constitutional right to remain in our country unlawfully.” He contended: “Petitioners aren’t claiming a right to liberty. They’re claiming a right to unlawful entry.” He also contended that Zadvydas was wrongly decided and should not be extended.
  • Judge Oldham authored a lengthy concurrence examining the history of habeas corpus from Magna Carta through the Founding, contending that the Great Writ is a purely procedural mechanism and “provides zero substantive liberty guarantees.” He contended that the process due to unadmitted aliens facing deportation “is precisely what the Legislature deigned to afford them in statutes.” Using a baseball analogy, he wrote: “The Great Writ does not define the strike zone. The League or the Legislature uses positive law to define a strike.”
  • Judge Richman concurred in the judgment denying habeas relief, agreeing that petitioners are “applicants for admission” and that the Due Process Clause does not require bond hearings prior to detention under § 1225. She expressed no opinion on whether immigration officials might instead proceed under § 1226, and noted that petitioners had not challenged the duration of their detention.
  • Judge Southwick dissented, contending that the majority “constructed an impenetrable wall between the Constitution and these long-term residents, a wall not designed, recognized, or even suggested by the Supreme Court.” He contended that freedom from physical restraint is “the core of the liberty protected by the Due Process Clause” and that applying the Glucksberg unenumerated-rights framework was inappropriate because the right at issue is already recognized. He emphasized that the Supreme Court’s civil-detention precedents require a justification connecting the detention to dangerousness or flight risk and concluded: “The Constitution does not permit the Government to hold an alien for as long as that decision takes, with no obligation ever to justify continuing confinement.”
  • Judge Haynes dissented, agreeing with Judge Southwick’s basic points, but would limit the analysis to individuals like petitioners—those who “resided in this country for more than ten years, have no criminal history, and have close American relatives.”
  • Judge Douglas dissented, writing that “the majority opinion detonates the core of the Due Process Clause based on a case about whether sex offenders may be required to publicly register their names under state law.” She argued the right not to be detained in the interior without good reason is “deeply rooted in this nation’s history,” challenged the majority’s reliance on Demore‘s footnote about pre-1907 bail practices, and concluded that “detention of aliens ‘unlawfully present’ in our country is a modern phenomenon.” She warned that the majority’s ruling makes the country “a less lawful place” for all residents, including citizens who “prefer to travel the interior of this country without having to be prepared to show that we are ‘clearly and beyond a doubt entitled to be admitted’ at any time.”
  • Judge Higginson dissented, focusing on statutory interpretation, contending that the court’s holding in Buenrostro-Mendez “was a misstep” and that § 1226—not § 1225—should govern the detention of noncitizens seized within the U.S. interior. He urged the court to apply constitutional avoidance rather than reaching the Due Process question, noting the Fifth Circuit’s position is in the “minority” among the circuits. He concluded: “For decades, Congress, the Executive Branch, and the courts, spoke with a singular voice to guarantee that all persons in the United States are protected by the Constitution when our government seizes and confines them. Today the majority speaks over that historical consensus.”

Unpublished decisions

• United States v. Moore, 25-11306, appeal from N.D. Tex.
  • per curiam (Stewart, Richman, Higginson) (no oral argument), criminal, Second Amendment, Commerce Clause, sentencing
  • Affirming conviction sentencing for felon-in-possession.
  • Curtis Moore, Jr. pleaded guilty to possession of a firearm by a convicted felon under 18 U.S.C. § 922(g)(1) and was sentenced within the guidelines range to 66 months of imprisonment. On appeal, he argued for the first time that § 922(g)(1) violates the Second Amendment on its face under New York State Rifle & Pistol Ass’n, Inc. v. Bruen and that the statute exceeds Congress’s Commerce Clause power. He also challenged the district court’s application of an enhanced base offense level under U.S.S.G. § 2K2.1(a)(3), contending that his prior Texas robbery offense does not qualify as a crime of violence because the mens rea for Texas robbery is broader than that for robbery under the Sentencing Guidelines.
  • The court held both constitutional arguments foreclosed by circuit precedent. As to the sentencing enhancement, reviewing for plain error, the court relied on United States v. Williams, 184 F.4th 757 (5th Cir. 2026), which held that § 4B1.2(e)(3) lacks a scienter requirement based on its plain language, making the Texas statute a categorical match for Guidelines robbery.

• United States v. Ekene, 25-20448, appeal from S.D. Tex.
  • per curiam (Stewart, Richman, Higginson) (no oral argument), criminal, compassionate release
  • Affirming denial of motion for compassionate release.
  • Francis Ekene, a federal prisoner, appealed the denial of his motion for compassionate release under 18 U.S.C. § 3582(c)(1)(A)(i). Ekene argued that his lack of criminal history, post-sentencing rehabilitation, low risk of recidivism, and poor health meant the § 3553(a) factors favored release. He also argued the district court should have held an evidentiary hearing via video conference.
  • The district court — also the original sentencing judge — determined that Ekene’s considerable involvement in a years-long Medicare fraud conspiracy meant that reducing his below-guidelines sentence would not reflect the seriousness of the offenses, promote respect for the law, provide just punishment, deter criminal conduct, or protect the public. Ekene’s mere disagreement with the court’s weighing of the factors did not warrant reversal.

• United States v. Shelton, 25-40456, appeal from E.D. Tex.
  • per curiam (Smith, Southwick, Oldham) (no oral argument), habeas corpus, ineffective assistance of counsel
  • Affirming denial of habeas relief on IAC grounds.
  • Michael Jason Shelton pleaded guilty to accessory after the fact to murder (18 U.S.C. § 3) and was sentenced to 180 months of imprisonment. After his direct appeal was dismissed, he filed a 28 U.S.C. § 2255 motion claiming ineffective assistance of counsel, arguing that trial counsel failed to move for dismissal on statute-of-limitations grounds before he was indicted. The district court denied relief and denied a COA; this court granted a COA on the statute-of-limitations claim.
  • Under Strickland v. Washington, the court found that Shelton failed to establish prejudice because he did not show a reasonable probability that, but for counsel’s error, he would not have pleaded guilty and would have insisted on going to trial.

• Salinas v. Sheriff Romeo R. Ramirez, 25-40723, appeal from S.D. Tex.
  • per curiam (Stewart, Richman, Higginson) (no oral argument), sec. 1983, appellate jurisdiction
  • Dismissing appeal of dismissal of sec. 1983 claims, for lack of timely notice of appeal.
  • Roberto Salinas, proceeding pro se, appealed the dismissal of his 42 U.S.C. § 1983 complaint. The appellee asserted that the court lacked jurisdiction because Salinas failed to file a timely notice of appeal.
  • Citing Bowles v. Russell, 551 U.S. 205 (2007), the court held that the statutory time limit for a civil appeal is a jurisdictional prerequisite, and because Salinas’s notice of appeal was untimely, the court lacked jurisdiction.

• United States v. Jackson, 25-50767, appeal from W.D. Tex.
  • per curiam (Smith, Southwick, Oldham) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Iraheta v. Blanche, U.S. Attorney General, 25-60704, petition for review of BIA order
  • per curiam (Clement, Haynes, Ramirez) (no oral argument), immigration
  • Denying petition for review of BIA affirmance of denial of cancellation of removal.
  • Walter Misael Iraheta petitioned for review of a BIA order affirming the denial of his application for cancellation of removal. He challenged the BIA’s determination that he failed to demonstrate the “exceptional and extremely unusual hardship” required under 8 U.S.C. § 1229b(b)(1)(D).
  • The court applied deferential review of this mixed question of law and fact, as required by Wilkinson v. Garland, 601 U.S. 209 (2024), and agreed with the BIA. Even without deference, Iraheta failed to show sufficient hardship.

• Knight v. Sorrells, et al., 26-10092, appeal from N.D. Tex.
  • per curiam (Stewart, Richman, Haynes) (no oral argument), prisoner suit
  • Dismissing as frivolous Texas state prisoner’s appeal from dismissal of sec. 1983 claims.
  • Joshua Knight, a Texas state prisoner, moved for leave to proceed IFP from the dismissal of his civil rights complaint. He argued the district court erred in denying leave to file a second amended complaint and in dismissing his suit under 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1) for failure to state a claim. Knight conceded that he lacked the knowledge and facts to support his claims.
  • The court found Knight failed to identify a nonfrivolous issue for appeal. The IFP motion was denied and the appeal dismissed as frivolous. The dismissals counted as strikes under § 1915(g); combined with a prior strike, Knight now has three strikes and is barred from proceeding IFP while incarcerated unless under imminent danger of serious physical injury. Knight was warned that future frivolous filings may result in additional sanctions.

• United States v. Hobson, 26-10174, appeal from N.D. Tex.
  • per curiam (King, Higginson, Douglas) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Ward, on behalf of E & T Grill v. State Farm Fire & Casualty Co., 26-30068, appeal from W.D. La.
  • per curiam (Haynes, Graves, Ramirez) (no oral argument), insurance, forfeiting argument
  • Affirming summary judgment for insurer.
  • Raveon Ward sued State Farm after a fire damaged her business, E&T Grill and Restaurant, LLC, alleging the insurer failed to adequately pay for her losses. The district court granted State Farm’s three unopposed motions for summary judgment, finding: (1) Ward lacked capacity to sue on behalf of E&T Grill; (2) E&T Grill could not sue on its own behalf because it was a revoked LLC; (3) Ward could not recover because she was not a named insured under the policy; and (4) State Farm had not acted in bad faith.
  • The court first held that Ward’s arguments were waived because she failed to oppose State Farm’s summary judgment motions in the district court. Even under de novo review, the court agreed with the district court: Ward lacked capacity under Louisiana law to sue on behalf of E&T Grill because LLC members cannot sue personally for damages to LLC property. Moreover, the insurance policy only covered E&T Grill’s losses, not Ward’s personal loss of income, and State Farm had already paid E&T Grill for its covered losses. The court also rejected bad faith claims under both Arkansas and Louisiana law, as no evidence showed State Farm engaged in dishonest or arbitrary conduct.

• United States v. Guerrero, 26-40103, appeal from S.D. Tex.
  • per curiam (Stewart, Richman, Higginson) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• United States v. Lee, 26-40163, appeal from E.D. Tex.
  • per curiam (Smith, Southwick, Oldham) (no oral argument), criminal
  • Affirming criminal judgment.
  • Chia Jean Lee, a federal prisoner proceeding pro se, appealed the denial of her motion to correct a clerical error under Federal Rule of Criminal Procedure 36. Lee sought to have her base offense level changed from 36 to 34.
  • The court held that the district court did not err in determining that the proposed change does not fall within the scope of Rule 36, which is limited to correcting clerical errors rather than substantive sentencing decisions.

• United States v. Perry, 26-50160, appeal from W.D. Tex.
  • per curiam (Smith, Southwick, Oldham) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• United States v. Santos-Quintero, 26-50205, appeal from W.D. Tex.
  • per curiam (Smith, Southwick, Oldham) (no oral argument), criminal, sentencing
  • Affirming sentence on conviction of illegal reentry.
  • Rigoberto Santos-Quintero appealed his sentence for illegal reentry, arguing: (1) the district court failed to give sufficient reasons for imposing a 30-month, above-guidelines sentence; (2) the sentence was substantively unreasonable; (3) the court erred by imposing sex-offender-related special conditions of supervised release; and (4) the court failed to adequately explain those conditions.
  • Reviewing for plain error, the court found the district court articulated specific, individualized reasons tied to 18 U.S.C. § 3553(a) factors and Santos-Quintero’s history of removals and criminal conduct. Santos-Quintero showed no clear or obvious error, nor a reasonable probability that further explanation would have resulted in a lesser sentence. His substantive-reasonableness challenge likewise failed. As to the supervised release conditions, the presentence report supported a conclusion that the sex-offender-related conditions were reasonably related to Santos-Quintero’s history and characteristics, and the district court’s reasoning was clear from the record.