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 each court year (Oct.-Sept.) 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 May 2021 statistics are based on 207 total opinions released by the Court.
Where the appeals are coming from
- The most appellate decisions came from the Northern District of Texas, with 58 decisions from the 5th Circuit on cases originating there.
- The Eastern District of Texas, Middle District of Louisiana, Northern District of Mississippi, and Southern District of Mississippi had perfect affirmance rates in May, with 16 affirmances from the Eastern District of Texas, 5 affirmances of Middle District of Louisiana decisions, 1 affirmance of a Northern District of Mississippi decision, and 6 affirmances of Southern District of Mississippi decisions.
- From decisions out of the Western District of Texas, there were 28 affirmances/appeal dismissals; 1 partial affirmance/partial reversal/vacatur; 5 full reversals; and 3 full vacaturs.
- From the Southern District of Texas, there were 44 affirmances/appeal dismissals; 1 partial affirmance/partial reversal/vacatur; 2 full reversals; and 2 full vacaturs.
- From the Northern District of Texas, there were 56 affirmances/appeal dismissals; 1 full vacatur; and 1 order of en banc rehearing.
- From the Eastern District of Louisiana, there were 7 affirmances/appeal dismissals; 1 partial affirmance/partial reversal/vacatur; and 1 full vacatur.
- From the Western District of Louisiana, there were 8 affirmances/appeal dismissals; and 1 full reversal.
- In petitions for review of Board of Immigration Appeals decisions, there were 17 petition denials and no grants.
- In other agency-review petitions, there was 1 denial of a petition to review a Benefits Review Board decision.
What the appeals are about
- The largest number of appeals are of criminal conviction and/or sentencing issues. 129 resulted in full affirmances/appeal dismissals; 2 were partial affirmance/partial reversal/vacaturs; 2 were full reversals; 2 were full vacaturs/remands; and 1 was an order of en banc rehearing.
- In post-conviction relief cases, including state and federal habeas petitions, there were 7 full affirmances/appeal dismissals.
- In immigration cases, there were 17 dismissals/denials of petitions for review of Board of Immigration Appeals orders.
- In prisoner suits, there were 8 full affirmances/appeal dismissals; and 3 full vacaturs.
- In commercial – civil cases, there were 7 full affirmances/appeal dismissals; 1 partial affirmance/partial reversal/vacatur; 2 full reversals; and 1 full vacatur.
- In civil rights/constitutional claims (non-prisoner-suits), there were 10 full affirmances/appeal dismissals; and 1 full reversal.
- In qualified immunity cases, there was 1 full reversal.
- In employment/labor law cases, there were 4 full affirmances/appeal dismissals; 1 full reversal; 1 full vacatur; and 1 denial of a petition to review a decision of the Benefits Review Board.
- In personal injury/non-commercial tort cases, there was 1 full affirmances/appeal dismissal.
- In products liability cases, there was 1 full affirmances/appeal dismissal.
- In social security cases, there were 2 full affirmance/appeal dismissals.
- In voting/election law cases, there was 1 full reversal.
- In maritime law cases, there were 2 full affirmance/appeal dismissals.
How much law is being made?
- Of the 207 opinions released by the 5th Circuit in May 2021, 31 were designated for publication. 13 of those were full affirmances; 2 were partial affirmances/partial reversal/vacaturs; 7 were full reversals; 4 were full vacaturs; 1 was an order of en banc rehearing; 3 were denials of petitions to review a BIA order; and 1 was a denial of a petition to review other agency orders.
- 177 of the May opinions were unpublished, including 158 full affirmances/appeal dismissals; 1 partial affirmance/partial reversal/vacatur; 1 full reversal; 3 full vacaturs; and14 denials of petitions to review BIA orders.
Who was doing what on the Court?
Who was the busiest, in that they were on the most panels issuing opinions in May? (Judge Graves, followed closely by Judges Willett, Haynes, and Ho.) Who was the busiest writer, authoring the most attributed opinions? (Judge Oldham.) How many opinions did the Court issue per curiam, with no author listed? (177, all of those unpublished.) Who participated in making the most law, participating in the most panels with published opinions? (Judge Oldham, followed closely by Judge Stewart.) We have all that below (senior-status judges in italics):
| Judge | On panel | In majority | Author majority | Author concur | Author dissent | Published | Unpublished |
| Owen | 3 | 3 | 1 | 2 | 1 | ||
| Jones | 30 | 30 | 2 | 28 | |||
| Smith | 29 | 28 | 1 | 1 | 7 | 22 | |
| Stewart | 29 | 29 | 3 | 10 | 19 | ||
| Dennis | 28 | 27 | 1 | 1 | 4 | 24 | |
| Elrod | 27 | 27 | 4 | 23 | |||
| Southwick | 27 | 27 | 1 | 4 | 23 | ||
| Haynes | 42 | 42 | 1 | 7 | 35 | ||
| Graves | 46 | 46 | 2 | 6 | 40 | ||
| Higginson | 24 | 23 | 3 | 1 | 8 | 16 | |
| Costa | 30 | 29 | 1 | 2 | 28 | ||
| Willett | 43 | 43 | 1 | 5 | 38 | ||
| Ho | 41 | 41 | 4 | 7 | 34 | ||
| Duncan | 37 | 37 | 2 | 35 | |||
| Engelhardt | 28 | 28 | 2 | 3 | 25 | ||
| Oldham | 34 | 33 | 4 | 1 | 1 | 11 | 23 |
| Wilson | 18 | 18 | 1 | 5 | 13 | ||
| Dist. Ct. Judge sitting by designation | 2 | 2 | 2 | ||||
| King | 24 | 24 | 1 | 23 | |||
| Jolly | 15 | 15 | 2 | 4 | 11 | ||
| Higginbotham | 9 | 8 | 2 | 1 | 4 | 5 | |
| Davis | 24 | 24 | 1 | 3 | 21 | ||
| Wiener | 7 | 7 | 7 | ||||
| Barksdale | 10 | 10 | 1 | 3 | 7 | ||
| Clement | 29 | 29 | 2 | 27 | |||
| per curiam | 177 | 177 |
Conclusions? Most decisions, as always, are unanimous, with only 6 dissenting opinions in May and 2 concurrences out of 207 opinions. By far the most decisions are per curiam, at 177, against 30 authored opinions. The Fifth Circuit continues to have a very active senior-status bench, with Judges King, Clement, and Davis 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 May was from Chief Judge Owen and Judge Wilson.
Wrap it all together, and an opinion in May 2021 was most likely to be an unpublished per curiam affirming a criminal decision from the Northern District of Texas, with Judges Graves, Willett, and Haynes on the panel.
Take the Fifth 