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 June 2021 statistics are based on 301 total opinions released by the Court, an exceptionally busy month for the Court (almost 100 more opinions than in May).
Where the appeals are coming from
- The most appellate decisions came from the Northern District of Texas, with 93 decisions from the 5th Circuit on cases originating there.
- The Southern District of Mississippi had the only perfect affirmance rate in June, with 6 affirmances, though there were also two cases out of the S.D. Miss. that were ordered for en banc rehearing.
- From decisions out of the Northern District of Mississippi, there were 2 affirmances/appeal dismissals; 1 full reversal; and 1 full vacatur.
- From the Western District of Texas, there were 44 affirmances/appeal dismissals; 1 partial affirmance/partial reversal/vacatur; 2 full reversals; and 2 full vacaturs.
- From the Eastern District of Texas, there were 20 affirmances/appeal dismissals; 1 partial affirmance/partial reversal/vacatur; and 1 full reversal.
- From the Southern District of Texas, there were 63 affirmances/appeal dismissals; 1 partial affirmance/partial reversal/vacatur; 3 full reversals; and 1 full vacatur.
- From the Northern District of Texas, there were 86 affirmances/appeal dismissals; 1 partial affirmance/partial reversal/vacatur; 2 full reversals; 3 full vacaturs; and 1 published order denying en banc rehearing.
- From the Eastern District of Louisiana, there were 7 affirmances/appeal dismissals; 1 partial affirmance/partial reversal/vacatur; 2 full reversals; and 1 full vacatur.
- From the Middle District of Louisiana, there were 6 affirmances/appeal dismissals; 2 full vacaturs; and 1 certification of a question to the state supreme court.
- From the Western District of Louisiana, there were 15 affirmances/appeal dismissals; and 1 full vacatur.
- In petitions for review of Board of Immigration Appeals decisions, there were 24 petition denials and 3 petition grants.
- In other decisions or agency-review petitions, there was 1 affirmance of a Tax Court decision, and 1 denial of a petition to review a Federal Communications Commission decision.
What the appeals are about
- The largest number of appeals are of criminal conviction and/or sentencing issues. 179 resulted in full affirmances/appeal dismissals; 1 was a partial affirmance/partial reversal/vacaturs; 3 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; and 1 full vacatur.
- In immigration cases, there was 1 full reversal; and there were 24 dismissals/denials of petitions for review of Board of Immigration Appeals orders; and 3 grants of petitions to review BIA orders.
- In prisoner suits, there were 10 full affirmances/appeal dismissals; 1 partial affirmance/partial reversal/vacatur; and 2 full vacaturs.
- In commercial – civil cases, there were 19 full affirmances/appeal dismissals; 2 partial affirmance/partial reversal/vacaturs; 4 full reversals; and 1 full vacatur.
- In civil rights/constitutional claims (non-prisoner-suits), there were 11 full affirmances/appeal dismissals; 1 partial affirmance/partial reversal/vacatur; 2 full reversals; and 4 full vacaturs.
- In qualified immunity cases, there were 4 full affirmances; 1 full reversal; and 1 published opinion denying en banc rehearing.
- In employment/labor law cases, there were 14 full affirmances/appeal dismissals; and 1 full reversal.
- In personal injury/non-commercial tort cases, there were 4 full affirmances/appeal dismissals; and 1 certification of a question to the state supreme court.
- In products liability cases, there was 1 full reversal.
- In social security cases, there was 1 full affirmance/appeal dismissal.
- In voting/election law cases, there was 1 full reversal; and 1 order of en banc rehearing.
- In tax law cases, there was 1 full affirmance/appeal dismissal.
- In administrative law cases, there was 1 denial of a petition to review an FCC order.
How much law is being made?
- Of the 301 opinions released by the 5th Circuit in June 2021, 31 were designated for publication. 17 of those were full affirmances; 2 were partial affirmances/partial reversal/vacaturs; 6 were full reversals; 1 was a full vacaturs; 1 was an order denying en banc rehearing; 2 were orders granting en banc rehearing; 1 was a certification of a question to the state supreme court; and 1 was a denial of a petition to review an agency order.
- 278 of the June opinions were unpublished, including 233 full affirmances/appeal dismissals; 3 partial affirmance/partial reversal/vacatur; 5 full reversals; 10 full vacaturs; 24 denials of petitions to review BIA orders; and 3 grants 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 June? (Judges Costa and Oldham, followed closely by Judges Jones, Duncan, and Dennis.) Who was the busiest writer, authoring the most attributed opinions? (Judge Duncan, followed closely by Judges Haynes, Higginson, and Willett.) How many opinions did the Court issue per curiam, with no author listed? (272, with 266 of those unpublished.) Who participated in making the most law, participating in the most panels with published opinions? (Judge Duncan, followed closely by Judge Oldham.) We have all that below (senior-status judges in italics):
| Judge | On panel | In majority | Author majority | Author concur | Author dissent/ dubitante | Published | Unpublished |
| Owen | 13 | 12 | 1 | 3 | 10 | ||
| Jones | 51 | 51 | 2 | 49 | |||
| Smith | 44 | 43 | 2 | 1 | 5 | 39 | |
| Stewart | 44 | 44 | 2 | 42 | |||
| Dennis | 49 | 49 | 2 | 1 | 5 | 44 | |
| Elrod | 48 | 48 | 1 | 5 | 43 | ||
| Southwick | 42 | 42 | 1 | 3 | 39 | ||
| Haynes | 41 | 40 | 2 | 1 | 1 | 5 | 36 |
| Graves | 36 | 35 | 1 | 35 | |||
| Higginson | 49 | 48 | 4 | 5 | 44 | ||
| Costa | 53 | 53 | 3 | 5 | 48 | ||
| Willett | 34 | 32 | 2 | 2 | 7 | 27 | |
| Ho | 30 | 29 | 2 | 1 | 5 | 25 | |
| Duncan | 51 | 50 | 4 | 1 | 9 | 42 | |
| Engelhardt | 48 | 48 | 5 | 33 | |||
| Oldham | 53 | 51 | 1 | 1 | 1 | 8 | 45 |
| Wilson | 30 | 30 | 1 | 3 | 27 | ||
| Dist. Ct. Judge sitting by designation | 8 | 8 | 2 | 3 | 5 | ||
| King | 30 | 30 | 1 | 29 | |||
| Jolly | 18 | 18 | 1 | 3 | 15 | ||
| Higginbotham | 35 | 35 | 1 | 6 | 29 | ||
| Davis | 47 | 47 | 3 | 3 | 44 | ||
| Wiener | 28 | 28 | 3 | 1 | 6 | 22 | |
| Barksdale | 10 | 10 | 10 | ||||
| Clement | 43 | 43 | 1 | 42 | |||
| per curiam | 272 | 6 | 266 |
Conclusions? Most decisions, as always, are unanimous, with only 8 dissenting opinions in June and 8 concurrences out of 301 opinions. By far the most decisions are per curiam, at 272, against 29 authored opinions. The Fifth Circuit continues to have a very active senior-status bench, with Judges King, Clement, Davis, Higginbotham, and Wiener participating in an equivalent or greater number of panels to some of the active-status judges (Judge Davis had participated in an astounding 47 opinions in June). Meanwhile, among active-status judges, the lightest production in June was from Chief Judge Owen and Judges Ho and Wilson.
Wrap it all together, and an opinion in June 2021 was most likely to be an unpublished per curiam affirming a criminal decision from the Northern District of Texas, with Judges Costa, Duncan, and Jones on the panel.
Take the Fifth 