Take the Fifth

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 September 2021 statistics are based on 184 total opinions released by the Court.

Where the appeals are coming from

• The most appellate decisions came from the Southern District of Texas, with 52 decisions from the 5th Circuit on cases originating there. 46 were full affirmances or appeal dismissals; 3 were full reversals; 1 was a full vacatur; 1 was a denial of a motion to stay execution; and 1 was a partial stay of an injunction of immigration policies pending appeal.
• The Southern District of Mississippi, the Middle District of Louisiana, and the Eastern District of Texas had perfect affirmance rates in September, with 12 full affirmances in the Southern District of Mississippi, 12 full affirmances in the Eastern District of Texas, and 1 full affirmance in the Middle District of Louisiana.
• From decisions out of the Northern District of Texas, there were 44 full affirmances/appeal dismissals; and 2 full reversals.
• From the Western District of Texas, there were 27 full affirmances/appeal dismissals; 3 full vacaturs; and 1 grant of a motion to stay pending appeal.
• From the Eastern District of Louisiana, there were 7 full affirmances/appeal dismissals; 1 partial affirmance/partial reversal/vacatur; 2 full reversals; and 1 full vacatur.
• From the Western District of Louisiana, there were 5 full affirmances/appeal dismissals; 1 full reversal; and 1 published denial of a petition for en banc rehearing.
• From the Northern District of Mississippi, there were 2 full affirmances/appeal dismissals; and 1 full reversal.
• From the U.S. Tax Court, there was 1 partial affirmance/partial reversal.
• In petitions for review of Board of Immigration Appeals decisions, there were 14 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. 100 resulted in full affirmances/appeal dismissals; 1 was a partial affirmance/partial reversal/vacatur; and 1 was a full vacatur/remand.
• In post-conviction relief cases, including state and federal habeas petitions, there were 8 full affirmances/appeal dismissals.
• In immigration cases, there were 14 dismissals/denials of petitions for review of Board of Immigration Appeals orders; 3 grants of petitions to review BIA orders; and 1 partial stay of an injunction against new immigration policies pending appeal.
• In prisoner suits, there were 14 full affirmances/appeal dismissals; and 1 full vacatur.
• In commercial – civil cases, there were 16 full affirmances/appeal dismissals; 2 full reversals; and 2 full vacaturs.
• In civil rights/constitutional claims (non-prisoner-suits), there were 6 full affirmances/appeal dismissals; 2 full reversals; and 1 motion denial.
• In qualified immunity cases, there was 1 full affirmance; 2 full reversals; and 1 full vacatur.
• In employment/labor law cases, there were 4 full affirmances/appeal dismissals; 2 full reversals; and 1 published denial of en banc rehearing.
• In personal injury/non-commercial tort cases, there were 2 full affirmances/appeal dismissals.
• In social security cases, there was 1 full affirmance.
• In bankruptcy cases, there were 2 full affirmances.
• In abortion cases, there was 1 grant of a motion to stay an injunction against Texas’s SB8 pending appeal.
• In arbitration cases, there was 1 full affirmance; and 1 full reversal.
• In tax law cases, there was 1 partial affirmance/partial reversal.

How much law is being made?

• Of the 184 opinions released by the 5th Circuit in September 2021, 29 were designated for publication. 12 of those were full affirmances; 2 were partial affirmances/partial reversal/vacaturs; 7 were full reversals; 2 were full vacaturs; 1 was a published denial of en banc rehearing; 2 were grants of petitions to review BIA orders; 1 was an order denying a motion to stay pending appeal; and 2 were orders granting motions to stay pending appeal.
• 171 of the September opinions were unpublished, including 151 full affirmances/appeal dismissals; 2 full reversals; 3 full vacaturs; 14 denials/dismissals of petitions to review BIA orders; and 1 grant of a petition 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 September? (Judge Costa, followed closely by Judges Smith and Ho.) Who was the busiest writer, authoring the most attributed opinions? (Judge Smith, followed by Judge Ho.) How many opinions did the Court issue per curiam, with no author listed? (161, with 155 of those unpublished.) Who participated in making the most law, participating in the most panels with published opinions? (Judge Smith, followed by Judge Duncan.) 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	9	8		1		7	2
Jones	25	24	1		1	4	21
Smith	36	36	6			11	25
Stewart	29	29	2			4	25
Dennis	27	24	1		2	7	20
Elrod	15	14			1	2	13
Southwick	21	20				3	18
Haynes	31	31				1	30
Graves	32	31	2		1	6	26
Higginson	22	22	2			6	16
Costa	38	38	2			5	33
Willett	33	32			1	6	27
Ho	34	34	2	2		4	30
Duncan	32	32	2			8	24
Engelhardt	32	32	1			4	28
Oldham	22	22	1	2		6	16
Wilson	30	30	1			4	26
Dist. Ct. Judge sitting by designation	3	3					3
King	26	26	1			2	24
Jolly	17	17				1	16
Higginbotham	26	26	1	1		4	22
Davis	12	12	1			2	10
Wiener	16	15			1	1	15
Barksdale	6	6					6
Clement	17	17				2	15
per curiam			161			6	155

Conclusions? Most decisions in September, as always, were unanimous, with only 7 dissenting opinions and 6 concurrences out of 184 opinions. By far the most decisions are per curiam, at 161, against 26 authored opinions. The Fifth Circuit continues to have a very active senior-status bench, with Judges King, Higginbotham, Jolly, Clement, 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 September was from Chief Judge Owen and Judge Elrod.

Wrap it all together, and an opinion in September 2021 was most likely to be an unpublished per curiam affirming a criminal decision from the Southern District of Texas, with Judges Smith, Costa, and Ho on the panel.