The following are summaries of selected criminal opinions issued by the United States Court of Appeals for the Fifth Circuit. The summaries are overviews; please review the entire opinions. The subsequent histories are current as of November 17, 2025.
UNIVERSITY EMPLOYMENT—Fifth Circuit rejects First Amendment challenge to “unwritten speech codes.”
Lowery v. Mills (5th Cir. No. 24-50879).The Fifth Circuit affirmed the dismissal of UT-Austin professor Richard Lowery’s First Amendment claims, rejecting his effort to recast workplace disputes as unconstitutional retaliation or chilling of protected speech. Lowery alleged that administrators responded to his public criticisms—on issues ranging from DEI to university governance—by threatening his affiliation with the Salem Center for Public Policy, discussing his conduct with police, and pressuring his supervisor to “do something” about him. The district court dismissed Lowery’s retaliation claim and later granted partial summary judgment on Lowery’s “chilled speech” claim, concluding thar Lowery had not suffered an adverse employment action.
Judge Smith’s opinion first held that Lowery had Article III standing to pursue injunctive relief because alleged “unwritten speech codes” and threats of future enforcement constituted a substantial risk of future harm under Speech First, Inc. v. Fenves, 979 F.3d 319 (5th Cir. 2020). Turning to the merits, the panel emphasized that the Fifth Circuit has not recognized a freestanding “chilled speech” cause of action apart from retaliation, and that retaliation actionable under § 1983 against a public employee requires an adverse employment action such as termination, demotion, or formal discipline. Criticism, meetings, internal discussions, and even an internal police inquiry did not meet that threshold—particularly because Lowery continued to receive raises, reappointment, and tenure protections. The court also affirmed dismissal of Lowery’s challenge to an “unwritten” civility policy because the complaint lacked factual allegations establishing the existence of an enforceable speech code.
Lowery thus develops the Fifth Circuit’s body of law for public-employee speech claims. Counsel should consider Lowery when facing First Amendment suits arising from political or academic speech within public institutions. Public employers like universities gain authority that informal pushback, criticism, or internal monitoring—when standing alone—does not give rise to actionable retaliation. Public-employee plaintiffs must show concrete adverse employment actions, not perceived hostility or mere self-imposed silence.
MUNICIPAL EMPLOYMENT—Court erases race-discrimination jury award for former city manager.
Jones v. City of Hutto (5th Cir. No. 24-50096). The Fifth Circuit affirmed in part and reversed in part an appeal of a multimillion-dollar jury verdict in favor of former Hutto City Manager Odis Jones. Jones had alleged racial discrimination and contractual impairment after the city rescinded his separation agreement and demanded repayment of $412,000. Jones claimed that certain members of the City Council harbored racial animus and engineered the rescission under pretextual concerns about budget shortfalls and defects in executing the contract. The jury awarded $8 million under § 1981 and $4.5 million for state-law breach of contract; the district court later required remittitur based on a statutory contract-damages limitation.
On appeal, the panel held that Jones satisfied the threshold Monell requirements for a § 1983 cause of action because the City Council’s rescission resolution constituted official municipal policy directly impairing Jones’ contract rights. Jones, however, still needed to prove that racial animus was the but-for cause of the City Council’s action for his
§ 1981 claim. Although the record contained evidence of hostility and possibly discriminatory remarks by two councilmembers, the panel emphasized that Jones failed to tie racial animus to a majority of the voting body. Without four votes motivated by race, the “headcount” requirement for municipal intent was not met. The court also rejected Jones’s attempt to invoke “cat’s paw” liability, holding that the doctrine—rooted in agency law—is incompatible with Monell’s bar on respondeat superior liability.
This ruling illustrates the high hurdle for § 1981 contract-impairment claims against municipalities. Plaintiffs must prove discriminatory motive of the policymaking majority—not merely influential actors. The case also clarifies that “cat’s paw” theories do not circumvent Monell. Plaintiffs thus face a formidable defense when at most only a minority of municipal officials harbored improper motives.
CLASS ACTIONS—Divided panel rejects cross-jurisdictional tolling; deems Hurricane Harvey claims time-barred.
Ackerman v. Arkema Inc. (5th Cir. No. 25-20006). A Fifth Circuit panel affirmed the dismissal of nearly 800 property-damage suits filed nearly six years after the Arkema plant explosions during Hurricane Harvey. The panel deemed the claims barred by Texas’s two-year statute of limitations. Plaintiffs argued that the pendency of a related class action had tolled limitations under American Pipe & Construction Co. v. Utah, 414 U.S. 538 (1974). But as that related class action was a federal class action, and Texas courts had recognized only state-court class-action tolling, the new claims were untimely.
Chief Judge Elrod’s opinion reaffirmed the Fifth Circuit’s longstanding Erie prediction: Texas would not adopt cross-jurisdictional tolling. In view of this Circuit precedent, the panel stressed that only the Texas Legislature or the Texas Supreme Court could alter that rule. Plaintiffs’ argument that equitable considerations warranted an extension of tolling doctrine—given Arkema’s notice of the federal class claims and the number of affected claimants—was rejected as foreclosed by precedent. The panel also noted that intermediate Texas courts have consistently applied tolling only where the underlying class actions were filed in Texas state court. Judge Haynes dissented in part, urging certification of the tolling question to the Texas Supreme Court.
Arkema thus rejects cross-jurisdictional tolling under Texas law. Litigators should proceed with care, as limitations may run unabated during federal or out-of-state class actions. Plaintiffs’ counsel should be mindful of potential state-court actions that could preserve state-law claims. Otherwise, Arkema reflects serious dismissal risk for late-filed class-action suits following unsuccessful or incomplete federal class proceedings.