Take the Fifth

At the end of each month, we tally various statistics from opinions released by the U.S. Court of Appeals for the Fifth Circuit. Then, corresponding to the traditional court term start date of October 1, we aggregate those statistics to note interesting trends for the previous court year (October through September). This is our first annual compilation, aggregating statistics from October 2020 through September 2021.

The 2020-2021 statistics are based on 2,331 total opinions released by the Court. 1,768 were full affirmances (or appeal dismissals); 81 were partial affirmances/partial reversals/vacaturs; 83 were full reversals; 2 were orders of mandamus; 106 were full vacaturs; 7 were certifications of questions to state supreme courts; 7 were published orders denying en banc rehearing; 10 were grants of en banc rehearing; 3 were grants of panel rehearings; 212 were denials or dismissals of petitions for review of Board of Immigration Appeals decisions; 18 were grants of petitions to review BIA decisions; 16 were denials of petitions to review other agency decisions; 4 were grants of petitions to review other agency decisions; 4 were motion denials; and 10 were grants of motions. The total affirmance rate across all opinions, without breaking down by court or by type of appeal, was 85.63%. Below, we break that down further.

Appeals by District Court (or other review origin)

• The most appellate decisions in the 2020-21 count came from the Northern District of Texas, with 633 decisions from the 5th Circuit on cases originating there. 567 were full affirmances or appeal dismissals; 13 were partial affirmances/partial reversals/vacaturs; 17 were full reversals; 1 was an order of mandamus; 25 were full vacaturs; 2 were certifications to the state supreme court; 2 were published opinions denying en banc rehearing; 3 were orders of en banc rehearing; 2 were motion denials; and 1 was a grant of a motion. There was an 89.6% full affirmance rate for N.D. Tex. decisions.
• The next-highest number of appeals originated in the Southern District of Texas, with 530 total opinions from cases originating there. 448 were full affirmances or appeal dismissals; 20 were partial affirmances/partial reversals/vacaturs; 26 were full reversals; 29 were full vacaturs; 1 was a certification to the state supreme court; 2 were orders of en banc rehearing; 1 was a motion denial; and 3 were grants of motions. There was an 84.5% full affirmance rate for S.D. Tex. decisions.
• Next was the Western District of Texas, with 501 total opinions from cases originating there. 419 were full affirmances or appeal dismissals; 20 were partial affirmances/partial reversals/vacaturs; 16 were full reversals; 35 were full vacaturs; 1 was a certification to the state supreme court; 2 were orders of en banc rehearing; 1 was a motion denial; and 5 were grants of motions. There was an 83.6% full affirmance rate for W.D. Tex. decisions.
• Next highest was the Eastern District of Texas, with 162 total opinions from cases originating there. 152 were full affirmances or appeal dismissals; 4 were partial affirmances/partial reversals/vacaturs; 3 were full reversals; 1 was an order of mandamus; and 2 were full vacaturs. There was a 93.8% full affirmance rate for E.D. Tex. decisions, the highest from any District Court.
• The Western District of Louisiana had the next highest total number of Fifth Circuit opinions, with a total of 130 opinions originating from there. 108 were full affirmances or appeal dismissals; 6 were partial affirmances/partial reversals/vacaturs; 8 were full reversals; 5 were full vacaturs; 1 was a certification to the state supreme court; 1 was a published opinion denying en banc rehearing; and 1 was a grant of panel rehearing. There was an 83% full affirmance rate for W.D. La. decisions.
• Next came the Eastern District of Louisiana, with 117 Fifth Circuit opinions originating from cases there. 85 were full affirmances or appeal dismissals; 11 were partial affirmances/partial reversals/vacaturs; 6 were full reversals; 12 were full vacaturs; 1 was a published opinion denying en banc rehearing; 1 was an order of en banc rehearing; and 1 was a grant of panel rehearing. There was a 72.6% full affirmance rate for E.D. La. decisions.
• The Southern District of Mississippi had the next highest number of Fifth Circuit opinions, with 102. 95 were full affirmances or appeal dismissals; 2 were partial affirmances/partial reversals/vacaturs; 1 was a full reversal; 2 were full vacaturs; and 2 were orders of en banc rehearing. There was a 93.1% full affirmance rate for S.D. Miss. decisions.
• The next highest point-of-origin district was the Middle District of Louisiana, with 63 opinions. 49 were full affirmances or appeal dismissals; 5 were partial affirmances/partial reversals/vacaturs; 3 were full reversals; 5 were full vacaturs; and 1 was a certification to the state supreme court. There was a 77.8% full affirmance rate for M.D. La. decisions.
• The lowest number of opinions originated from cases from the Northern District of Mississippi, with a total of 40 opinions originating there. 34 were full affirmances or appeal dismissals; 3 were full reversals; 2 were full vacaturs; and 1 was a published opinion denying en banc rehearing. There was an 85% full affirmance rate for N.D. Miss. decisions.
• In addition to the review of District Court decisions, the Fifth Circuit also reviewed 3 decisions of the U.S. Tax Court in 2020-21, fully affirming 2 and partially affirming/partially reversing/vacating 1, for a full affirmance rate of 66.67%. The Court also engaged in 13 actions on agency decision, denying petitions to review 9 of those, denying a motion filed in one more, vacating 2 agency decisions, and granting a petition to review one more, for a 71.43% affirmance (or petition-denial) rate.
• Additionally, the Fifth Circuit reviewed 230 petitions for review of Board of Immigration Appeals decisions, of which 212 were denied or dismissed, and 18 were granted, for an “affirmance” rate of 92.17%.

What the appeals are about

• The largest number of appeals are of criminal conviction and/or sentencing issues. 1,229 resulted in full affirmances/appeal dismissals; 19 were partial affirmances/partial reversals/vacaturs; 7 were full reversals; 45 were full vacaturs/remands; and 2 were orders of en banc rehearing. The full affirmance rate for criminal/sentencing cases was 94.4%.
• In post-conviction relief cases, including state and federal habeas petitions, there were 114 full affirmances/appeal dismissals; 1 partial affirmance/partial reversal/vacatur; 4 full reversals; 11 full vacaturs/remands; and 2 orders of en banc rehearing. The full affirmance rate for these cases was 86.4%.
• In immigration cases, there were 6 full affirmances from district court decisions; 2 partial affirmances/partial reversals/vacaturs from district court decisions; 1 full reversal from a district court decision; 212 dismissals/denials of petitions for review of BIA orders; 18 grants of petitions to review BIA orders; and 3 grants of motions. The full affirmance rate for combined district court and BIA review was 92%.
• In prisoner suits, there were 139 full affirmances/appeal dismissals; 4 partial affirmances/partial reversals/vacaturs; 2 full reversals; 16 full vacaturs; and 1 grant of a motion. The full affirmance rate for prisoner suits was 85.8%.
• In commercial – civil cases, there were 164 full affirmances/appeal dismissals; 17 partial affirmances/partial reversals/vacaturs; 17 full reversals; 2 orders of mandamus; 17 full vacaturs; 4 certifications of questions to state supreme courts; 1 order of en banc rehearing; and 3 denials of petitions for review of agency actions. The full affirmance rate from commercial/civil cases was 72.9%.
• In civil rights/constitutional claims (non-prisoner-suits), there were 103 full affirmances/appeal dismissals; 14 partial affirmances/partial reversals/vacaturs; 13 full reversals; 15 full vacaturs; 2 published orders denying en banc rehearing; 1 order of en banc rehearing; and 1 motion denial. The full affirmance rate for these cases was 69.1%.
• In qualified immunity cases, there was 24 full affirmances; 4 partial affirmances/partial reversals/vacaturs; 12 full reversals; 4 full vacaturs; and 1 published order denying en banc rehearing. The full affirmance rate for qualified immunity cases was 53.3%.
• In employment/labor law cases, there were 91 full affirmances/appeal dismissals; 15 partial affirmances/partial reversals/vacaturs; 11 full reversals; 6 full vacaturs; 1 published denial of en banc rehearing; 1 grant of en banc rehearing; 3 denials of petitions for review of agency decisions; and 1 grant of a petition for review of an agency decision. The full affirmance rate for these cases was 70.5%.
• In personal injury/non-commercial tort cases, there were 40 full affirmances/appeal dismissals; 3 partial affirmances/partial reversals/vacaturs; 4 full reversals; 1 certification of a question to a state supreme court; 1 published denial of en banc rehearing; and 3 orders of en banc rehearing. The full affirmance rate for these cases was 76.9%.
• In social security cases, there were 10 full affirmances and a 100% affirmance rate.
• In bankruptcy cases, there were 12 full affirmances and 1 full reversal, for a 92.3% affirmance rate.
• In abortion cases, there were 2 full affirmances; 1 partial affirmance/partial reversal/vacatur; 2 full vacaturs; 1 order for en banc rehearing; and 1 grant of a motion to stay an injunction against Texas’s SB8 pending appeal. The full affirmance rate for these cases was 28.6%.
• In arbitration cases, there were 7 full affirmances; 1 partial affirmance/partial reversal/vacatur; and 3 full reversals. The full affirmance rate was 63.6%.
• In tax law cases, there were 5 full affirmances; 1 partial affirmance/partial reversal/vacatur; and 1 certification of a question to the state supreme court. The full affirmance rate for tax cases was 71.4%.
• There was 1 ACA challenge decision, a full vacatur.
• In voting/election law cases, there was 1 full affirmance; 1 partial affirmance/partial reversal/vacatur; 3 full reversals; 1 full vacatur; 1 order of en banc rehearing; 1 motion denial; and 4 motion grants. The full affirmance rate for these cases was 8.33%.
• In environmental law/toxic tort cases, there were 6 full affirmances; 2 partial affirmances/partial reversals/vacaturs; and 2 full reversals. The full affirmance rate was 60%.
• In products liability cases, there were 11 full affirmances; 1 full reversal; and 1 certification of a question to a state supreme court. The full affirmance rate was 84.6%.
• In maritime law cases, there were 6 full affirmances; 1 partial affirmance/partial reversal/vacatur; and 1 full reversal, for a 75% full affirmance rate.
• There was 1 attorney discipline appeal, resulting in a full affirmance.

How much law is being made?

• Of the 2,331 opinions released by the 5th Circuit in 2020-21, 460 were designated for publication. 240 of those were full affirmances; 53 were partial affirmances/partial reversal/vacaturs; 58 were full reversals; 1 was an order of mandamus; 37 were full vacaturs; 6 were certifications to state supreme courts; 7 were published denials of en banc rehearing; 10 were orders granting en banc rehearing; 2 were grants of panel rehearing; 19 were denials of petitions for review of BIA orders; 6 were grants of petitions to review BIA orders; 8 were denials of petitions to review other agency decisions; 2 were grants of petitions to review other agency decisions; 3 were denials of motions; and 8 were grants of motions. The full affirmance rate for published decisions was 58%.
• 1,871 of the 2020-21 opinions were unpublished, including 1,528 full affirmances/appeal dismissals; 28 partial affirmances/partial reversals/vacaturs; 25 full reversals; 1 order of mandamus; 69 full vacaturs; 1 certification of a question to a state supreme court; 1 grant of panel rehearing; 193 denials/dismissals of petitions to review BIA orders; 12 grants of a petition to review BIA orders; 8 denials of petitions to review other agency decisions; 2 grants of petitions to review other agency decisions; 1 denial of a motion; and 2 grants of motions. The full affirmance rate for unpublished decisions was 92.4%.

Who was doing what on the Court?

Who was the busiest, in that they were on the most panels issuing opinions in 2020-21? (Judge Haynes, followed closely by Judges Jones and Ho.) Who was the busiest writer, authoring the most attributed opinions? (Judge Higginson.) How many opinions did the Court issue per curiam, with no author listed? (2,110, with 2,063 of those unpublished.) Who participated in making the most law, participating in the most panels with published opinions? (Judge Smith, followed by Judge Oldham.) Who was the most “independent” judge, voting with the majority in the lowest percentage of panels? (Judge Dennis, at 96.26%; not surprisingly, he also authored the highest number of dissents, at 11). Which judges always voted with the majority opinion, 100% of the time? (Among active judges, only Judge Engelhardt; among senior-status judges, Judges King, Jolly, and Barksdale). Who was the concurring-est judge? (Judge Ho, with 13 concurring opinions, sometimes even concurring separately to his own majority opinions). We have all that below (senior-status judges in italics):

Judge	On panel	In majority	Author majority	Author concur	Author dissent/ dubitante	Published	Unpublished	Majority percentage
Owen	138	134	19	2	3	53	85	97.1%
Jones	418	412	23	1	4	74	344	98.56%
Smith	391	385	39		3	97	294	98.47%
Stewart	412	406	20		1	60	352	98.54%
Dennis	374	360	13	4	11	77	297	96.26%
Elrod	347	338	23	4	6	85	262	97.41%
Southwick	368	365	24		2	75	293	99.18%
Haynes	422	417	17	5	5	69	353	98.82%
Graves	363	353	13	1	6	49	314	97.25%
Higginson	353	342	42	3	8	80	273	96.88%
Costa	410	404	19	1	4	63	347	98.54%
Willett	379	371	23	2	4	82	297	97.89%
Ho	418	414	26	13	3	77	341	99.04%
Duncan	376	372	21		1	74	302	98.93%
Engelhardt	395	395	11			60	325	100%
Oldham	323	314	22	10	6	90	233	97.21%
Wilson	284	282	8			55	229	99.3%
Dist. Ct. Judge sitting by designation	21	21	4			8	13	100%
King	307	307	6			40	267	100%
Jolly	211	211	10	3		33	178	100%
Higginbotham	281	278	16	3	3	62	219	98.93%
Davis	269	268	10		1	25	244	99.63%
Wiener	206	204	5	1	2	29	177	99.03%
Barksdale	117	117	4			14	103	100%
Clement	291	290	13		1	45	246	99.66%
unattributed			1				1
per curiam			2,110			48	2,063

Conclusions? The 2020-21 statistics show that we can often over-emphasize the importance of the composition of the panel, as the lowest percentage judge with regard to voting with the majority still voted with the majority over 96% of the time. We also often over-emphasize the difficulty of gaining a reversal or vacatur on appeal when we look to the overall affirmance rates; depending on the type of case, that rate can come way down. The Fifth Circuit’s senior-status bench pulls a lot of weight, with Judges King, Higginbotham, Davis, and Clement participating in a generally equivalent number of panels as many of the active-status judges.

Wrap it all together, and an opinion in the 2020-21 term was most likely to be an unpublished per curiam affirming a criminal decision from the Northern District of Texas, with Judges Haynes, Jones, and Ho on the panel.