We have our first month under our belts of summarizing all of the opinions released by the Fifth Circuit, so now we have a ton of good data. We will report after each month on interesting statistics from this data, and at the end of a year aggregate that–all of which provides useful insights into the inner workings of the Court, the relative success of various appeals, and more.
The October 2020 statistics are based on 198 total opinions released by the Court.
Where the appeals are coming from
- The most appellate decisions came from the Northern District of Texas, with 43 decisions from the 5th Circuit on cases originating there. 36 were affirmances or dismissals of appeals; 3 were partial affirmances and partial reversals/vacaturs; 1 reversal; 1 order of mandamus; 1 vacatur/remand; and 1 order of en banc rehearing.
- The federal district courts in Mississippi has the best affirmance rate in the 5th Circuit in October, with the Southern District of Mississippi a perfect 7 affirmances out of 7 appellate decisions, and the Northern District of Mississippi a perfect 6 affirmances out of 6 appellate decisions. There was also a single affirmance of the single Tax Court decision on review to the 5th Circuit.
- From decisions out of the Western District of Texas, there were 24 affirmances/appeal dismissals; 3 partial affirmances/partial reversal/vacaturs; 7 full vacaturs; 4 stays pending appeals; and 1 en banc rehearing order.
- From the Southern District of Texas, there were 34 affirmances/appeal dismissals; 5 partial affirmances/partial reversal/vacaturs; 3 full reversals; 4 full vacaturs; 1 stay pending appeal; and 1 en banc rehearing order.
- From the Eastern District of Texas, there were 12 affirmances/appeal dismissals; and 1 partial affirmance/partial reversal/vacatur.
- From the Eastern District of Louisiana, there were 4 affirmances/appeal dismissals; 1 partial affirmance/partial reversal/vacatur; and 1 full vacatur.
- From the Middle District of Louisiana, there were 5 affirmances/appeal dismissals; and 2 partial affirmances/partial reversal/vacaturs.
- From the Western District of Louisiana, there were 15 affirmances/appeal dismissals; and 2 partial affirmances/partial reversal/vacaturs.
What the appeals are about
- The largest number of appeals are of criminal conviction and/or sentencing issues. 72 resulted in full affirmances/appeal dismissals; 5 were partial affirmances/partial reversal/vacaturs; and 6 full vacaturs.
- In post-conviction relief cases, including state and federal habeas and compassionate release petitions, there were 24 full affirmances/appeal dismissals/COA denials; and 1 partial affirmance/partial reversal/vacatur.
- In immigration cases, there was 1 full affirmance/appeal dismissal; 1 partial affirmance/partial reversal/vacatur; and 17 dismissals of petitions for review of Board of Immigration Appeals orders.
- In prisoner suits, there were 14 full affirmances/appeal dismissals; and 1 stay pending appeal.
- In commercial – civil cases, there were 12 full affirmances/appeal dismissals; 3 partial affirmances/partial reversal/vacaturs; 2 full reversals; 1 mandamus; 3 full vacaturs; and 1 en banc rehearing order (for an appeal of an SEC proceeding).
- In civil rights/constitutional claims, there were 9 full affirmances/appeal dismissals; 4 partial affirmances/partial reversal/vacaturs; 2 full reversals; and 2 full vacaturs.
- In employment law cases, there were 5 full affirmances/appeal dismissals; and 2 partial affirmances/partial reversal/vacaturs.
- In voting rights/election law cases, there was 1 partial affirmance/partial reversal/vacatur; 1 full vacatur; and 4 stays pending appeal.
- In personal injury cases, there were 3 full affirmances/appeal dismissals; and 1 en banc rehearing order (for a Jones Act/seaman case).
- In arbitration decisions (which overlap with commercial – civil and employment), there were 2 full affirmances; and 1 partial affirmance/partial reversal/vacatur.
- In abortion law cases, there were 2 full affirmances; and 1 en banc rehearing order.
- In bankruptcy, there was 1 full affirmance.
- In ACA challenges, there was 1 full vacatur.
- In tax law cases, there was 1 full affirmance.
- In social security benefits cases, there was 1 full affirmance.
- And in environmental law/toxic tort cases, there was 1 full affirmance.
How much law is being made?
- Of the 198 opinions released by the 5th Circuit in October 2020, 57 were designated for publication. 28 were full affirmances; 7 were partial affirmances/partial reversal/vacaturs; 4 were full reversals; 1 was a mandamus; 8 were full vacaturs; 4 were stays pending appeal; and 3 were en banc rehearing orders.
- 141 of the October opinions were unpublished, including 110 full affirmances/appeal dismissals; 10 partial affirmances/partial reversal/vacaturs; 5 full vacaturs; and 1 stay pending appeal.
Who was doing what on the Court?
Who was. the busiest, in that they were on the most panels issuing opinions in October? Who was the busiest writer, authoring the most opinions? How many opinions did the Court issue per curiam, with no author listed? Who made the most law, authoring the most published opinions or participating in the most panels with published opinions? We have all that below (senior-status judges in italics):
| Judge | Panels | On majority | Authored majority op. | Authored concurring op. | Authored dissenting op. | published op. | unpublished op. |
| Owen, C.J. | 18 | 18 | 3 | 8 | 10 | ||
| Jones | 33 | 33 | 1 | 7 | 26 | ||
| Smith | 30 | 30 | 4 | 10 | 20 | ||
| Stewart | 31 | 30 | 3 | 1 | 7 | 24 | |
| Dennis | 28 | 27 | 1 | 1 | 4 | 24 | |
| Elrod | 25 | 25 | 4 | 8 | 17 | ||
| Southwick | 31 | 31 | 4 | 10 | 21 | ||
| Haynes | 28 | 28 | 1 | 6 | 22 | ||
| Graves | 32 | 32 | 1 | 3 | 29 | ||
| Higginson | 33 | 32 | 4 | 1 | 6 | 27 | |
| Costa | 33 | 33 | 3 | 7 | 26 | ||
| Willett | 20 | 19 | 3 | 1 | 7 | 13 | |
| Ho | 29 | 29 | 3 | 1 | 8 | 21 | |
| Duncan | 17 | 17 | 1 | 4 | 13 | ||
| Engelhardt | 35 | 35 | 1 | 7 | 28 | ||
| Oldham | 24 | 23 | 4 | 1 | 13 | 11 | |
| Wilson | 18 | 18 | 1 | 17 | |||
| Reavley | 0 | ||||||
| King | 28 | 28 | 1 | 5 | 23 | ||
| Jolly | 11 | 11 | 1 | 1 | 10 | ||
| Higginbotham | 26 | 26 | 2 | 1 | 9 | 17 | |
| Davis | 20 | 20 | 1 | 4 | 16 | ||
| Duhe | 0 | ||||||
| Wiener | 10 | 10 | 1 | 2 | 8 | ||
| Barksdale | 11 | 11 | 2 | 9 | |||
| Benavides | 0 | ||||||
| Clement | 35 | 35 | 2 | 13 | 22 | ||
| Unattributed | 1 | 1 | |||||
| Per curiam | 149 | 5 | 144 |
Conclusions? Most panels are unanimous, with only 4 opinions featuring dissents and 3 featuring concurrences in October. By far the most decisions are per curiam (plus one strange unattributed opinion), at 150, against 48 authored opinions. Judge Clement, although senior status, counts as one of the busiest judges in October, with opinions issued from 35 panels of which she was a part (matched only by Judge Engelhardt), including 2 attributing her as the author and 13 designated for publication (matched only by Judge Oldham). Judges King, Higginbotham, and Davis were other senior-status judges working fairly full loads. Meanwhile, among active-status judges, the lightest productions in October were from Judges Duncan and Wilson.
Take the Fifth 