Take the Fifth

Designated for publication

• U.S. v. Landrum, 25-60167, appeal from S.D. Miss.
  • Davis, J. (Davis, Jones, Stewart) (no oral argument), criminal
  • Affirming conviction of possession of a firearm by a felon.
  • Lester Landrum pleaded guilty but preserved constitutional challenges to the statute, arguing that it violates the Second Amendment (both facially and as applied), the Equal Protection Clause, the Commerce Clause, and that it is unconstitutionally vague. The court held that all of Landrum’s constitutional claims except vagueness were foreclosed by binding Fifth Circuit precedent upholding § 922(g)(1), including cases holding the statute constitutional as applied to individuals with drug-trafficking felonies and to those possessing firearms while on supervised release.
  • Addressing the vagueness challenge de novo, the court rejected Landrum’s argument that post-Bruen Second Amendment jurisprudence made § 922(g)(1) unclear because courts must now perform historical analyses to determine whether particular felonies justify disarmament. The panel explained that the vagueness doctrine concerns whether the statute itself provides fair notice, and § 922(g)(1) plainly defines the prohibited conduct—possession of a firearm by a felon. Moreover, neither Bruen nor later Fifth Circuit decisions could have created uncertainty about the statute’s validity at the time of Landrum’s offense, especially given his drug-trafficking felony and supervised-release status, both of which fall within established precedent allowing disarmament.

Unpublished decisions

• Deno v. Progressive Casualty Insurance Co., 25-10507, apply for N.D. Tex.
  • per curiam (Stewart, Graves, Oldham) (oral argument), insurance, maritime law
  • Affirming dismissal of yacht-owner’s limitation of liability claim on basis that the court lacked federal admiralty jurisdiction.

• U.S. v. Pearson, 25-10558, appeal from N.D. Tex.
  • per curiam (Elrod, Higginson, Ramirez) (no oral argument), criminal, sentencing
  • Affirming 78-month sentence on conviction of possession of a firearm by a felon.

• U.S. v. Ballard, 25-10621, appeal from N.D. Tex.
  • per curiam (King, Haynes, Ho) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. McLearen, 25-10718, appeal from N.D. Tex.
  • per curiam (King, Haynes, Ho) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Kunze v. Baylor Scott & White Health, 24-11040, appeal from N.D. Tex.
  • per curiam (Wiener, Engelhardt, Oldham) (oral argument withdrawn), Oldham, J., concurring; Fair Labor Standards Act, attorneys’ fees
  • Affirming attorneys’ fees award under the FLSA.
  • The panel affirmed the district court’s award of attorneys’ fees and costs following an overtime dispute brought under the Fair Labor Standards Act (FLSA). HealthTexas Provider Network discovered that a flaw in its timekeeping system had caused some employees to be underpaid and conducted an audit to correct the wage payments. The employees later filed a collective action alleging unpaid overtime and ultimately prevailed on summary judgment against HealthTexas (though not against Baylor Scott & White Health). After the parties settled the remaining claims, the only contested issue was the amount of attorneys’ fees and costs. The plaintiffs requested more than $3 million in fees and roughly $101,000 in costs, but the district court reduced the award to about $919,000 in fees and $16,519 in costs, applying the lodestar method and limiting recoverable costs to those authorized by 28 U.S.C. § 1920. On appeal, both sides challenged the award—plaintiffs arguing it was too low and defendants arguing it was too high—but the Fifth Circuit held that the district court carefully exercised its discretion and committed no abuse of discretion or clear factual error. Concluding that the district court’s calibrated reduction struck the proper balance, the panel affirmed the fee and cost awards.
  • Judge Oldham concurred because, in his view, the majority correctly applied existing Fifth Circuit precedent. But he wrote separately to highlight the deep conceptual confusion surrounding fee-shifting doctrine. Tracing the issue historically, Judge Oldham contrasts the English “loser pays” rule with the “American Rule.” English law, dating back to statutes like the Statute of Marlborough (1267) and the Statute of Gloucester (1275), gradually evolved toward a simple parity principle: “the loser would always pay the winner.” By contrast, American law rejected this system. Early U.S. law experimented with statutory caps on attorneys’ fees, then shifted toward a freedom-of-contract model allowing lawyers and clients to set compensation themselves. This development—reinforced by cases like Arcambel v. Wiseman and later federal statutes—produced what we now call the American Rule: each side ordinarily pays its own lawyers. Yet Congress simultaneously created numerous statutory exceptions—such as civil rights and antitrust laws—resulting in what Judge Oldham describes as a “long and complicated relationship with attorneys’ fees.”
  • Judge Oldham argues that the modern system for determining “reasonable” fees under these statutes has become particularly incoherent in the Fifth Circuit. While the Supreme Court embraced the relatively structured lodestar method—multiplying hours worked by a reasonable hourly rate—this circuit instead relies on the twelve-factor test from Johnson v. Georgia Highway Express. Judge Oldham criticizes this framework as historically ungrounded and practically unworkable: the factors, he notes, came essentially from “nowhere,” and the test is “neither predictable ex ante nor clear ex post.” Echoing Justice Thomas’s critique of balancing tests, he calls the approach “utterly indeterminate,” complaining that it offers “very little actual guidance to district courts” and leaves judges with “sometimes subjective factors” producing “disparate results.” The present case—where plaintiffs’ attorneys sought more than $3 million in fees after a failed class certification—illustrates the problem. In Judge Oldham’s view, the analysis should simply ask whether the requested fee is reasonable under the statute. Instead, courts are forced into what he calls a “tortured test” built on “made-up and under-theorized standards,” leaving the law of fee awards confusing, historically disconnected, and difficult to administer.

• Cutchall v. Chubb Lloyds Insurance Co. of Texas, 25-20024, appeal from S.D. Tex.
  • per curiam (Davis, Jones, Stewart) (oral argument withdrawn), insurance
  • Affirming summary judgment in favor of insurer on basis of lack of genuine dispute of material fact that no hailstorm occurred over plaintiff’s home on date of claimed damage.

• Carbo Ceramics, Inc. v. Board of Tax Assessors, 24-20439, appeal from S.D. Tex.
  • per curiam (Jones, Graves, Rodriguez, by designation) (oral argument), tax law, bankruptcy
  • Affirming bankruptcy and district court judgments that debtor was not entitled to credits on its ad valorem tax liability under memorandum of understanding between debtor and taxing authority.

• Taylor v. Walmart Inc., 25-30332, apply for E.D. La.
  • per curiam (Elrod, Higginbotham, Graves) (oral argument withdrawn), personal tort
  • Affirming summary judgment for defendant in slip-and-fall claim.

• U.S. v. Rasco, 25-30454, appeal from W.D. La.
  • per curiam (Elrod, Smith, Stewart) (no oral argument), criminal, sentencing
  • Affirming 120-month sentence on conviction of conspiracy to distribute and to possess with intent to distribute methamphetamine.

• Shaw v. Gillen, 25-40197, appeal from E.D. Tex.
  • per curiam (Richman, Engelhardt, Wilson) (oral argument), sec. 1983
  • Affirming dismissal of excessive force claim as Heck-barred.

• Esparza v. Rubio, 25-40219, appeal from S.D. Tex.
  • per curiam (Clement, Douglas, Ramirez) (no oral argument), immigration
  • Affirming judgment after bench trial denying plaintiff’s claim for declaratory judgment that he was born in the United States.

• U.S. v. Flores, 25-40284, appeal from S.D. Tex.
  • per curiam (Elrod, Smith, Stewart) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Boldene, 25-40315, appeal from E.D. Tex.
  • per curiam (King, Haynes, Ho) (no oral argument), criminal, guilty plea
  • Dismissing appeal of conviction on basis of appeal-waiver in plea agreement.

• Anders v. Rumfield, 25-40387, appeal from E.D. Tex.
  • per curiam (Jones, Stewart, Willett) (no oral argument), sec. 1983
  • Affirming dismissal of sec. 1983 claim and denial of writ of execution.

• U.S. v. Melendez-Saldivar, 25-40445, appeal from S.D. Tex.
  • per curiam (Jones, Richman, Southwick) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Alvarado v. CITGO Petroleum Corp., 25-40455, appeal from S.D. Tex.
  • per curiam (King, Haynes, Ho) (no oral argument), employment discrimination, disability discrimination
  • Affirming dismissal of disability discrimination claims against former employer.

• U.S. v. Gomez-Dominguez, 25-50712, appeal from W.D. Tex.
  • per curiam (Richman, Southwick, Willett) (no oral argument), criminal, sentencing
  • Affirming sentence on conviction of illegal reentry.

• U.S. v. Crisler, 25-60099, appeal from S.D. Miss.
  • per curiam (Clement, Douglas, Ramirez) (oral argument withdrawn), criminal
  • Affirming conviction of knowingly soliciting, demanding, accepting, or agreeing to accept a bribe and selling or disposing of ammunition to a convicted felon.

• Bryant v. Rosenberg, 25-60196, appeal from S.D. Miss.
  • per curiam (Richman, Higginson, Oldham) (oral argument withdrawn), Oldham, J., concurring; defamation
  • Affirming dismissal of defamation suit.
  • Judge Oldham concurred, recognizing the actual-malice standard from Sullivan applied, but critiquing the vitality of that standard and the creation of the “constitutional right to lie.” “Why should public figures—the very people most prone to attract libels—be uniquely disabled to combat them? And in the social media age, when almost anyone can become a public figure almost instantly, why should the First Amendment protect some Americans less than it protects others?”

• Okorie v. Foxworth, 25-60431, appeal from S.D. Miss.
  • per curiam (Clement, Douglas, Ramirez) (no oral argument), foreclosure
  • Affirming dismissal of claims arising from foreclosure sale of property plaintiff operated as a medical clinic.

• U.S. v. Johnson, 25-60479, appeal from S.D. Miss.
  • per curiam (Elrod, Smith, Stewart) (no oral argument), criminal, sentencing
  • Vacating 36-month sentence on revocation of supervised release, and remanding for resentencing.

• Perez-De Madrid v. Bondi, 25-60594, petition for review of BIA order
  • per curiam (King, Haynes, Ho) (no oral argument), immigration
  • Denying Salvadoran citizen’s petition for review of BIA order denying her motion for reconsideration.