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 March 2021 statistics are based on 221 total opinions released by the Court.
Where the appeals are coming from
- The most appellate decisions came from the Northern District of Texas, with 51 decisions from the 5th Circuit on cases originating there.
- The Middle District of Louisiana, Northern District of Mississippi, and Eastern District of Texas had perfect affirmance rates in March, with 5 affirmances of Middle District of Louisiana decisions, 2 affirmances of Northern District of Mississippi decisions, and 15 affirmances of Eastern District of Texas decisions.
- From decisions out of the Western District of Texas, there were 32 affirmances/appeal dismissals; 1 partial affirmance/partial reversal/vacatur; 1 vacatur; and 1 certification to the Texas Supreme Court.
- From the Southern District of Texas, there were 28 affirmances/appeal dismissals; 3 partial affirmances/partial reversal/vacaturs; 4 full reversals; 2 vacaturs; and 1 order for en banc rehearing.
- From the Northern District of Texas, there were 47 affirmances/appeal dismissals; 2 partial affirmances/partial reversal/vacaturs; and 2 full vacaturs.
- From the Eastern District of Louisiana, there were 10 affirmances/appeal dismissals; 1 partial affirmance/partial reversal/vacatur; and 4 full vacaturs.
- From the Western District of Louisiana, there were 11 affirmances/appeal dismissals; 1 full reversal; and 1 full vacatur.
- From the Southern District of Mississippi, there were 11 affirmances/appeal dismissals; 1 full reversal; and 1 full vacatur.
- In addition, in agency-review actions, there were 1 vacatur and remand to the Consumer Products Safety Commission; 2 denials of petitions to review Department of Interior actions; 1 vacatur of a Department of Education decision; and 1 denial of a motion to reconsider transfer of venue to the D.C. Circuit to review an EPA decision.
What the appeals are about
- The largest number of appeals are of criminal conviction and/or sentencing issues. 91 resulted in full affirmances/appeal dismissals; 1 was a partial affirmance/partial reversal/vacatur; and 3 were full vacaturs/remands.
- In post-conviction relief cases, including state and federal habeas petitions, there were 5 full affirmances/appeal and 1 full vacatur/remand.
- In immigration cases, there were 34 dismissals/denials of petitions for review of Board of Immigration Appeals orders; and 2 grants of petitions for review of BIA orders.
- In prisoner suits, there were 18 full affirmances/appeal dismissals; 1 partial affirmance/partial reversal/vacatur; 1 full reversal; and 1 full vacatur.
- In commercial – civil cases, there were 16 full affirmances/appeal dismissals; 1 partial affirmance/partial reversal/vacatur; 2 full vacaturs; and 1 certification to a state Supreme Court.
- In civil rights/constitutional claims (non-prisoner-suits), there were 16 full affirmances/appeal dismissals; 2 partial affirmances/partial reversals/vacaturs; 1 full reversal; and 1 full vacatur.
- In qualified immunity cases, there were 1 full affirmance/appeal dismissal; 1 partial affirmance/partial reversal/vacatur; 1 full reversal; and 1 full vacatur.
- In employment/labor law cases, there were 8 full affirmances/appeal dismissals; 1 partial affirmances/partial reversals/vacaturs; 2 full vacaturs; and 1 order of en banc rehearing.
- In personal injury/non-commercial tort cases, there were 2 full affirmances/appeal dismissals; and 1 full reversal.
- In environmental law/toxic tort decisions, there were 2 denials of petitions for review of agency decisions.
- In products liability cases, there were 2 full affirmances/appeal dismissals.
- In bankruptcy, there were 1 full affirmance/appeal dismissal; and 1 full reversal.
- In arbitration cases, there were 1 full affirmance; and 1 full reversal.
- In administrative law cases, there was 1 full vacatur.
How much law is being made?
- Of the 221 opinions released by the 5th Circuit in March 2021, 47 were designated for publication. 27 of those were full affirmances; 3 were partial affirmances/partial reversal/vacaturs; 5 were full reversals; 5 were full vacaturs; 1 was an order of en banc rehearing; 1 was a denial of a petition to review a BIA order; 1 was a grant of a petition to review a BIA order; 2 were denials of petitions to review other agency orders; 1 was a grant of a petition to review another agency order; and 1 was a denial of a motion to reconsider transfer of venue.
- 181 of the March opinions were unpublished, including 134 full affirmances/appeal dismissals; 4 partial affirmances/partial reversals/vacaturs; 1 full reversal; 7 full vacaturs; 1 certification to a state supreme court; 33 denials of petitions to review BIA orders; and 1 grant of a petition to review a BIA order.
Who was doing what on the Court?
Who was the busiest, in that they were on the most panels issuing opinions in March? (Judges Stewart and Haynes, followed closely by Judge Willett.) Who was the busiest writer, authoring the most attributed opinions? (Judge Smith.) How many opinions did the Court issue per curiam, with no author listed? (178, with 174 of those unpublished.) Who participated in making the most law, participating in the most panels with published opinions? (Judge Elrod, followed closely by Judges Smith, Dennis, and Willett.) We have all that below (senior-status judges in italics):
| Judge | On panel | In majority | Author majority | Author concur | Author dissent | Published | Unpublished |
| Owen | 18 | 18 | 3 | 3 | 15 | ||
| Jones | 34 | 33 | 2 | 1 | 8 | 26 | |
| Smith | 33 | 33 | 8 | 11 | 22 | ||
| Stewart | 39 | 39 | 1 | 8 | 31 | ||
| Dennis | 31 | 31 | 2 | 11 | 20 | ||
| Elrod | 25 | 24 | 1 | 1 | 12 | 13 | |
| Southwick | 32 | 32 | 1 | 4 | 28 | ||
| Haynes | 39 | 38 | 2 | 1 | 5 | 34 | |
| Graves | 32 | 32 | 1 | 4 | 28 | ||
| Higginson | 33 | 33 | 5 | 28 | |||
| Costa | 26 | 26 | 2 | 5 | 21 | ||
| Willett | 38 | 38 | 2 | 1 | 11 | 27 | |
| Ho | 33 | 33 | 1 | 1 | 32 | ||
| Duncan | 32 | 32 | 1 | 6 | 26 | ||
| Engelhardt | 28 | 28 | 2 | 3 | 25 | ||
| Oldham | 25 | 23 | 1 | 2 | 2 | 8 | 17 |
| Wilson | 23 | 23 | 3 | 4 | 19 | ||
| Reavley | |||||||
| King | 30 | 30 | 2 | 9 | 21 | ||
| Jolly | 11 | 11 | 1 | 3 | 8 | ||
| Higginbotham | 25 | 25 | 2 | 7 | 18 | ||
| Davis | 24 | 24 | 2 | 3 | 21 | ||
| Duhe | |||||||
| Wiener | 22 | 22 | 1 | 3 | 19 | ||
| Barksdale | 14 | 14 | 1 | 2 | 12 | ||
| Benavides | |||||||
| Clement | 28 | 28 | 1 | 3 | 25 | ||
| per curiam | 178 | 4 | 174 |
Conclusions? Most decisions, as always, are unanimous, with only 5 dissenting opinions in March and 3 concurrences out of 221 opinions. By far the most decisions are per curiam, at 178, against 43 authored opinions. The Fifth Circuit continues to have a very active senior-status bench, with Judges King, Clement, Higginbotham, Davis, and Wiener 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 March was from Chief Judge Owen.
Wrap it all together, and an opinion in March 2021 was most likely to be an unpublished per curiam affirming a criminal decision from the Northern District of Texas, with Judges Stewart, Haynes, and Willett on the panel.
Take the Fifth 