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 October 2021 statistics are based on 203 total opinions released by the Court.

Where the appeals are coming from

• The most appellate decisions came from the Western District of Texas, with 46 decisions from the 5th Circuit on cases originating there. 40 were full affirmances or appeal dismissals; 1 was a partial affirmance/partial reversal or vacatur; 1 was a full reversal; 2 were full vacaturs; and 2 were grants of stays pending appeal.
• The Southern District of Mississippi, the Northern District of Mississippi, and the Eastern District of Texas had perfect affirmance rates in October, with 11 full affirmances from the Southern District of Mississippi, 1 full affirmance from the Northern District of Mississippi, and 16 full affirmances from the Eastern District of Texas.
• From decisions out of the Northern District of Texas, there were 41 full affirmances/appeal dismissals; 1 partial affirmance/partial reversal or vacatur; 1 full reversal; and 2 full vacaturs.
• From the Southern District of Texas, there were 34 full affirmances/appeal dismissals; 2 partial affirmances/partial reversals or vacaturs; and 4 full vacaturs.
• From the Eastern District of Louisiana, there were 7 full affirmances/appeal dismissals; and 2 partial affirmances/partial reversals/vacaturs.
• From the Middle District of Louisiana, there was 1 full affirmance; 1 partial affirmance/partial reversal or vacatur; 1 full vacatur; and 1 published order denying en banc rehearing.
• From the Western District of Louisiana, there were 4 full affirmances/appeal dismissals; and 1 full vacatur.
• In petitions for review of Board of Immigration Appeals decisions, there were 24 petition denials/dismissals and 1 petition grants.
• There was also one petition for agency-decision review.

What the appeals are about

• The largest number of appeals are of criminal conviction and/or sentencing issues. 96 resulted in full affirmances/appeal dismissals; 1 was a partial affirmance/partial reversal/vacatur; and 6 were full vacaturs/remands.
• In post-conviction relief cases, including state and federal habeas petitions, there were 5 full affirmances/appeal dismissals; and 1 full vacatur.
• In immigration cases, there were 24 dismissals/denials of petitions for review of Board of Immigration Appeals orders; and 1 grant of petitions to review BIA orders.
• In prisoner suits, there were 15 full affirmances/appeal dismissals; 2 partial affirmances/partial reversals or vacaturs; and 2 full vacaturs.
• In commercial – civil cases, there were 10 full affirmances/appeal dismissals; and 1 full reversal.
• In civil rights/constitutional claims (non-prisoner-suits), there were 8 full affirmances/appeal dismissals; 1 partial affirmance/partial reversal or vacatur; and 1 published order denying en banc rehearing.
• In qualified immunity cases, there were 2 full affirmances.
• In employment/labor law cases, there were 4 full affirmances/appeal dismissals; 1 full reversal; and 1 full vacatur.
• In personal injury/non-commercial tort cases, there were 4 full affirmances/appeal dismissals; and 1 partial affirmance/partial reversal or vacatur.
• In bankruptcy cases, there was 1 full affirmance.
• In abortion cases, there was 1 full affirmance; and 2 grants of motions to stay pending appeal.
• In arbitration cases, there were 2 full affirmances.
• In tax law cases, there was 1 full affirmance; and 1 partial affirmance/partial reversal.
• In voting/election law cases, there were 2 full affirmances.
• In environmental law/toxic tort cases, there was 1 full affirmance; and 1 partial affirmance/partial reversal or vacatur.
• In products liability cases, there was 1 full affirmance.
• In international law cases, there was 1 full affirmance.
• In administrative law cases, there was 1 grant of a stay pending review of an agency decision.

How much law is being made?

• Of the 203 opinions released by the 5th Circuit in October 2021, 22 were designated for publication. 14 of those were full affirmances; 3 were partial affirmances/partial reversal/vacaturs; 2 were full vacaturs; 1 was a published denial of en banc rehearing; 1 was a denial of a petition to review a BIA order; and 1 was an order granting a motion to stay pending appeal.
• 181 of the October opinions were unpublished, including 141 full affirmances/appeal dismissals; 4 partial affirmances/partial reversals or vacaturs; 2 full reversals; 8 full vacaturs; 23 denials/dismissals of petitions to review BIA orders; 1 grant of a petition to review BIA orders; and 2 orders granting motions to stay pending appeal.

Who was doing what on the Court?

Who was the busiest, in that they were on the most panels issuing opinions in October? (Judge Haynes, followed closely by Judges Elrod and Duncan.) Who was the busiest writer, authoring the most attributed opinions? (Judge Costa, followed by Judge Oldham.) How many opinions did the Court issue per curiam, with no author listed? (178, with 176 of those unpublished.) Who participated in making the most law, participating in the most panels with published opinions? (Judges Jones, Elrod, Costa, and 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	9	9				2	7
Jones	33	33	1			6	27
Smith	33	33	2			2	31
Stewart	29	28			1	2	27
Dennis	31	31	1			3	28
Elrod	35	35				6	29
Southwick	25	25	1			5	20
Haynes	37	36	1		1	5	32
Graves	27	26			1	1	26
Higginson	27	27	2			3	24
Costa	34	34	4		1	6	28
Willett	29	29	1			1	28
Ho	23	23	1			2	21
Duncan	35	34			1	4	31
Engelhardt	29	29	1			2	27
Oldham	31	28	1		3	6	25
Wilson	22	22				2	20
Dist. Ct. Judge sitting by designation
King	18	17			1	1	17
Jolly	20	20				1	19
Higginbotham	16	16	1			2	14
Davis	23	23	2			4	19
Wiener	27	27	3			2	25
Barksdale	9	9					9
Clement	7	7	1			1	6
per curiam			178			2	176

Conclusions? Most decisions in October, as always, were unanimous, with only 9 dissenting opinions and 6 concurrences out of 203 opinions. By far the most decisions are per curiam, at 178, against 23 authored opinions. The Fifth Circuit continues to have a very active senior-status bench, with Judges Wiener, Davis, and Jolly 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 October was from Chief Judge Owen and Judge Wilson.

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