We report after each month on interesting statistics from the data we generate from the daily opinion summaries from the U.S. Court of Appeals for the Fifth Circuit, and at the end of a year we will aggregate that–all of which provides useful insights into the inner workings of the Court, the relative success of various appeals, and more.
The February 2021 statistics are based on 162 total opinions released by the Court.
Where the appeals are coming from
- The most appellate decisions came from the Western District of Texas, with 46 decisions from the 5th Circuit on cases originating there.
- The district courts in Mississippi had perfect affirmance rates in February, with 3 affirmances of Northern District of Mississippi decisions and 5 affirmances of Southern District of Mississippi decisions.
- From decisions out of the Western District of Texas, there were 39 affirmances/appeal dismissals; 1 partial affirmance/partial reversal/vacatur; 2 full reversals; and 4 vacaturs.
- From the Southern District of Texas, there were 22 affirmances/appeal dismissals; 1 partial affirmance/partial reversal/vacatur; and 4 vacaturs.
- From the Eastern District of Texas, there were 7 affirmances/appeal dismissals; and 1 partial affirmance/partial remand/vacatur.
- From the Northern District of Texas, there were 33 affirmances/appeal dismissals; 3 full reversals; and 1 order for an en banc rehearing.
- From the Eastern District of Louisiana, there were 7 affirmances/appeal dismissals; 1 partial affirmance/partial reversal/vacatur; 1 full reversal; 1 vacatur; and 1 published denial of en banc rehearing.
- From the Middle District of Louisiana, there was 1 full reversal; and 1 vacatur.
- From the Western District of Louisiana, there were 4 affirmances/appeal dismissals; and 1 full reversal.
What the appeals are about
- The largest number of appeals are of criminal conviction and/or sentencing issues. 71 resulted in full affirmances/appeal dismissals; 1 was a partial affirmance/partial reversal/vacatur; 1 was a full reversal; and 4 were full vacaturs/remands.
- In post-conviction relief cases, including state and federal habeas petitions, there were 8 full affirmances/appeal dismissals/COA denials; 2 full reversal; and 3 full vacatur/remand.
- In immigration cases, there was 1 affirmance; 1 full reversal; and 19 dismissals/denials of petitions for review of Board of Immigration Appeals orders.
- In prisoner suits, there were 9 full affirmances/appeal dismissals; and 1 vacatur.
- In commercial – civil cases, there were 10 full affirmances/appeal dismissals; 1 partial affirmance/partial reversal/vacatur; 1 full vacaturs; and 1 denial of a petition for review of an agency action by the Federal Motor Carriers Safety Administration.
- In civil rights/constitutional claims (non-prisoner-suits), there were 4 full affirmances/appeal dismissals; 1 full reversal; 1 vacatur; and 1 order for an en banc rehearing.
- In qualified immunity cases, there were 3 full affirmances/appeal dismissals; 1 full reversal; and 1 vacatur.
- In employment/labor law cases, there were 7 full affirmances/appeal dismissals; 1 partial affirmances/partial reversals/vacaturs; and 1 full reversal.
- In personal injury/non-commercial tort cases, there was 1 decision denying en banc rehearing.
- In environmental law/toxic tort decisions, there was 1 partial affirmance/partial reversal/vacatur; and 1 full reversal.
- In products liability cases, there were 3 full affirmances/appeal dismissals.
- In bankruptcy, there was 1 full affirmance/appeal dismissal.
- In arbitration cases, there was 1 full affirmance.
- In tax cases, there was 1 full affirmance/appeal dismissal.
How much law is being made?
- Of the 162 opinions released by the 5th Circuit in February 2021, 32 were designated for publication. 16 of those were full affirmances; 3 were partial affirmances/partial reversal/vacaturs; 6 were full reversals; 4 were vacaturs; 1 was a denial of en banc rehearing; 1 was a granting of en banc rehearing; and 1 was a denial of a petition to review a BIA order.
- 130 of the February opinions were unpublished, including 105 full affirmances/appeal dismissals; 1 partial affirmance/partial reversal/vacatur; 2 full reversals; 6 full vacaturs; 18 denials of petitions to review BIA orders; and 1 denial of petition to review an agency decision.
Who was doing what on the Court?
Who was the busiest, in that they were on the most panels issuing opinions in February? (Judge Higginson, followed closely by Judges Southwick and Engelhardt.) Who was the busiest writer, authoring the most attributed opinions? (Judge Higginson, followed by Judges Elrod and Southwick.) How many opinions did the Court issue per curiam, with no author listed? (130, with 125 of those unpublished.) Who participated in making the most law, participating in the most panels with published opinions? (Judge Southwick, followed closely by Judges Dennis, Elrod, Haynes, Higginson, Willett, and Ho.) We have all that below (senior-status judges in italics):
| Judge | On panel | In majority | Author majority | Author concur | Author dissent | Published | Unpublished |
| Owen | 7 | 7 | 2 | 5 | 2 | ||
| Jones | 21 | 21 | 3 | 6 | 15 | ||
| Smith | 25 | 25 | 2 | 5 | 20 | ||
| Stewart | 24 | 23 | 1 | 23 | |||
| Dennis | 23 | 22 | 1 | 7 | 16 | ||
| Elrod | 24 | 23 | 3 | 1 | 7 | 17 | |
| Southwick | 34 | 33 | 3 | 1 | 8 | 26 | |
| Haynes | 25 | 23 | 2 | 7 | 18 | ||
| Graves | 19 | 18 | 1 | 1 | 4 | 15 | |
| Higginson | 36 | 35 | 5 | 1 | 7 | 29 | |
| Costa | 24 | 23 | 2 | 3 | 21 | ||
| Willett | 18 | 17 | 2 | 7 | 11 | ||
| Ho | 16 | 16 | 2 | 7 | 9 | ||
| Duncan | 23 | 23 | 1 | 5 | 18 | ||
| Engelhardt | 34 | 34 | 1 | 5 | 29 | ||
| Oldham | 13 | 13 | 2 | 1 | 5 | 8 | |
| Wilson | 23 | 23 | 2 | 21 | |||
| Reavley | |||||||
| King | 21 | 21 | 2 | 19 | |||
| Jolly | 16 | 16 | 2 | 14 | |||
| Higginbotham | 17 | 16 | 1 | 5 | 12 | ||
| Davis | 15 | 15 | 1 | 2 | 13 | ||
| Duhe | |||||||
| Wiener | 15 | 15 | 2 | 13 | |||
| Barksdale | 8 | 8 | 1 | 7 | |||
| Benavides | |||||||
| Clement | 25 | 25 | 1 | 2 | 23 | ||
| per curiam | 130 | 5 | 125 |
Conclusions? Most decisions, as always, are unanimous, with only 5 dissenting opinions in February and 3 concurrences out of 162 opinions. By far the most decisions are per curiam, at 130, against 32 authored opinions. The Fifth Circuit continues to have a very active senior-status bench, with Judges King, Jolly, Higginbotham, Davis, Wiener, and Clement participating in an equivalent or greater number of panels to some of the active-status judges. Meanwhile, among active-status judges, the lightest production in February was from Chief Judge Owen.
Wrap it all together, and an opinion in February 2021 was most likely to be an unpublished per curiam affirming a criminal decision from the Western District of Texas, with Judges Higginson, Engelhardt, and Southwick on the panel.
Take the Fifth 