On Thursday, July 11, 2026, a notable dissent emerged from the Fifth Circuit Court of Appeals concerning the denial of rehearing en banc in the case of Lopez v. The dissent, authored by Fifth Circuit Judge James Ho, voiced strong disagreement with the court's refusal to reconsider the case, emphasizing concerns about appellate jurisdiction and judicial error.

Judge Ho expressed his appreciation for Judge Smith, who authored the principal dissent from the denial of rehearing, stating, "I'm grateful to Judge Smith for flagging this case for our attention, and share his dismay that the court is denying rehearing en banc."

Central to the dissent is the argument that the mediation order in the case should have sufficed to establish appellate jurisdiction over the interlocutory appeal from the denial of qualified immunity. Both Judge Ho and Judge Smith urge that appellate jurisdiction was indeed proper, referencing the unpublished decision in De Leon v., which they describe as "equally errant" but nonetheless supportive of their position. As Judge Ho noted, "That decision, to be clear, found appellate jurisdiction in De Leon—the same result that both Judge Smith and I urge here."

However, the per curiam decision in the case contains a footnote (footnote 2) suggesting that appellate jurisdiction was lacking at an earlier stage, a point that complicates the jurisdictional analysis. Judge Ho lamented such errors, stating, "It's unfortunate when errors arise in our decisions—whether in express holdings in precedential decisions, or footnote asides in unpublished per curiam rulings."

The dissent further underscores the importance of judicial humility and transparency. Judge Ho remarked, "As judges, we should strive to be open about our mistakes, and look for opportunities to correct them. Any judge who claims that he or she has never made a mistake is a judge I wouldn't trust."

This debate highlights ongoing tensions within the judiciary regarding procedural jurisdiction and the willingness of courts to revisit potentially flawed decisions. The Lopez case thus serves as a focal point for discussions about judicial accountability and the standards for interlocutory appeals, particularly in qualified immunity contexts.

What to Watch

Observers will be closely monitoring whether further appeals or motions for rehearing arise from this case, as well as any broader implications for how appellate jurisdiction is interpreted in similar cases. The willingness of courts to acknowledge and correct errors remains a critical issue for the integrity of the judicial process.

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