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 August 2021 statistics are based on 306 total opinions released by the Court.
Where the appeals are coming from
- The most appellate decisions came from the Northern District of Texas, with 76 decisions from the 5th Circuit on cases originating there. 67 were full affirmances or appeal dismissals; 2 were partial affirmances/partial reversals/vacaturs; 3 were full reversals; 3 were full vacaturs; 1 was a certification to a state supreme court; and 1 was a stay pending appeal.
- The Southern District of Mississippi, the Northern District of Mississippi, and the Middle District of Louisiana had perfect affirmance rates in August, with 17 full affirmances in the Southern District of Mississippi, 6 full affirmances in the Northern District of Mississippi, and 6 full affirmances in the Middle District of Louisiana.
- From decisions out of the Southern District of Texas, there were 52 full affirmances/appeal dismissals; 3 partial affirmances/partial reversal/vacaturs; 1 full reversal; 3 full vacaturs; and 1 certification to the state supreme court.
- From the Western District of Texas, there were 52 full affirmances/appeal dismissals; 4 partial affirmances/partial reversal/vacaturs; 1 full reversal; and 5 full vacaturs.
- From the Eastern District of Texas, there were 17 full affirmances/appeal dismissals; 1 partial affirmance/partial reversal/vacatur; and 1 full vacatur.
- From the Eastern District of Louisiana, there were 11 full affirmances/appeal dismissals; 1 partial affirmance/partial reversal/vacatur;1 full reversal; and 1 full vacatur.
- From the Western District of Louisiana, there were 6 full affirmances/appeal dismissals; 1 partial affirmances/partial reversal/vacaturs; and 1 full vacatur.
- In petitions for review of Board of Immigration Appeals decisions, there were 29 petition denials/dismissals and 3 petition grants.
What the appeals are about
- The largest number of appeals are of criminal conviction and/or sentencing issues. 144 resulted in full affirmances/appeal dismissals; 3 were partial affirmances/partial reversal/vacaturs; and 8 were full vacaturs/remands.
- In post-conviction relief cases, including state and federal habeas petitions, there were 8 full affirmances/appeal dismissals.
- In immigration cases, there was 1 full affirmance of a district court opinion; there were 29 dismissals/denials of petitions for review of Board of Immigration Appeals orders; 3 grants of petitions to review BIA orders; and 1 stay pending appeal.
- In prisoner suits, there were 20 full affirmances/appeal dismissals; 1 partial affirmance/partial reversal/vacatur; and 2 full vacaturs.
- In commercial – civil cases, there were 18 full affirmances/appeal dismissals; 2 partial affirmances/partial reversal/vacaturs; 2 full reversals; 3 full vacaturs; and 2 certifications of questions to state supreme courts.
- In civil rights/constitutional claims (non-prisoner-suits), there were 13 full affirmances/appeal dismissals; and 2 partial affirmances/partial reversals/vacaturs.
- In qualified immunity cases, there were 3 full affirmances; and 1 full reversal.
- In employment/labor law cases, there were 12 full affirmances/appeal dismissals; 5 partial affirmances/partial reversals/vacaturs; and 1 full reversal.
- In personal injury/non-commercial tort cases, there were 8 full affirmances/appeal dismissals.
- In social security cases, there were 2 full affirmances.
- In bankruptcy cases, there was 1 full affirmance.
- In abortion cases, there was 1 full vacatur.
- In arbitration cases, there was 1 full affirmance.
- In administrative law cases, there was 1 full affirmance.
- In environmental law/toxic tort cases, there were 2 full affirmances.
- In maritime law cases, there was 1 full affirmance and 1 full reversal.
How much law is being made?
- Of the 306 opinions released by the 5th Circuit in August 2021, 53 were designated for publication. 27 of those were full affirmances; 10 were partial affirmances/partial reversal/vacaturs; 6 were full reversals; 4 were full vacaturs; 2 were certifications of questions to a state supreme court; 3 were dismissals/denials of petitions to review BIA orders; and 1 was an order denying a motion to stay pending appeal.
- 250 of the August opinions were unpublished, including 208 full affirmances/appeal dismissals; 3 partial affirmance/partial reversal/vacatur; 10 full vacaturs; 26 denials/dismissals 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 August? (Judge Engelhardt, followed closely by Judges Oldham and Stewart.) Who was the busiest writer, authoring the most attributed opinions? (Judge Higginson, followed closely by Judge Ho.) How many opinions did the Court issue per curiam, with no author listed? (253, with 247 of those unpublished.) Who participated in making the most law, participating in the most panels with published opinions? (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 | 7 | 7 | 1 | 3 | 4 | ||
| Jones | 51 | 51 | 4 | 10 | 41 | ||
| Smith | 47 | 46 | 1 | 1 | 7 | 40 | |
| Stewart | 55 | 54 | 2 | 6 | 49 | ||
| Dennis | 44 | 41 | 1 | 3 | 6 | 38 | |
| Elrod | 45 | 45 | 5 | 12 | 33 | ||
| Southwick | 48 | 48 | 5 | 9 | 39 | ||
| Haynes | 49 | 49 | 1 | 8 | 41 | ||
| Graves | 38 | 36 | 1 | 1 | 4 | 34 | |
| Higginson | 30 | 30 | 6 | 1 | 1 | 10 | 20 |
| Costa | 52 | 50 | 3 | 1 | 11 | 41 | |
| Willett | 41 | 41 | 1 | 3 | 38 | ||
| Ho | 49 | 49 | 6 | 1 | 9 | 40 | |
| Duncan | 37 | 37 | 4 | 7 | 30 | ||
| Engelhardt | 57 | 57 | 1 | 9 | 48 | ||
| Oldham | 56 | 56 | 1 | 17 | 39 | ||
| Wilson | 39 | 39 | 2 | 12 | 27 | ||
| Dist. Ct. Judge sitting by designation | 4 | 4 | 1 | 1 | 3 | ||
| King | 33 | 33 | 4 | 29 | |||
| Jolly | 24 | 24 | 2 | 4 | 20 | ||
| Higginbotham | 24 | 24 | 3 | 6 | 18 | ||
| Davis | 34 | 34 | 1 | 4 | 30 | ||
| Wiener | 33 | 33 | 4 | 29 | |||
| Barksdale | 11 | 11 | 1 | 10 | |||
| Clement | 12 | 12 | 2 | 3 | 9 | ||
| per curiam | 253 | 6 | 247 |
Conclusions? Most decisions in August, as always, were unanimous, with only 7 dissenting opinions and 3 concurrences out of 306 opinions. By far the most decisions are per curiam, at 253, against 53 authored opinions. The Fifth Circuit continues to have a very active senior-status bench, with Judges King, Higginbotham, Davis, Jolly, 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 August was from Chief Judge Owen.
Wrap it all together, and an opinion in August 2021 was most likely to be an unpublished per curiam affirming a criminal decision from the Northern District of Texas, with Judges Engelhardt, Oldham, and Stewart on the panel.
Take the Fifth 