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 November 2021 statistics are based on 233 total opinions released by the Court.
Where the appeals are coming from
- The most appellate decisions came from the Northern District of Texas, with 57 decisions from the 5th Circuit on cases originating there. 49 were full affirmances or appeal dismissals; 1 was a partial affirmance/partial reversal or vacatur; 3 were full reversals; and 4 were full vacaturs.
- The Western District of Texas and the Southern District of Mississippi had perfect affirmance rates in November, with 41 full affirmances from the Western District of Texas and 10 full affirmances from the Southern District of Mississippi.
- From decisions out of the Eastern District of Texas, there were 14 full affirmances/appeal dismissals; 2 partial affirmances/partial reversals or vacaturs; 1 full reversal; and 1 full vacatur.
- From the Southern District of Texas, there were 35 full affirmances/appeal dismissals; 2 partial affirmances/partial reversals or vacaturs; 2 full vacaturs; 1 certification of a question to the Texas Supreme Court, and 1 order of an en banc rehearing.
- From the Eastern District of Louisiana, there were 6 full affirmances/appeal dismissals; 1 partial affirmance/partial reversal/vacatur; and 1 full reversal.
- From the Middle District of Louisiana, there were 5 full affirmances; and 3 partial affirmances/partial reversals or vacaturs.
- From the Western District of Louisiana, there were 13 full affirmances/appeal dismissals; 1 full reversal; and 1 full vacatur.
- From the Northern District of Mississippi, there were 2 full affirmances/appeal dismissals; 1 partial affirmance/partial reversal/vacatur; and 1 full vacatur.
- From the U.S. Tax Court, there were 2 full affirmances.
- In petitions for review of Board of Immigration Appeals decisions, there were 23 petition denials/dismissals and 1 petition grants.
- In petitions for other agency review, there was 1 partial affirmance/partial reversal/vacatur of an agency decision, 1 denial of a petition for agency review, and 3 grants of stays pending determination on the merits of petitions for agency review.
What the appeals are about
- The largest number of appeals are of criminal conviction and/or sentencing issues. 116 resulted in full affirmances/appeal dismissals; 2 were partial affirmances/partial reversals/vacaturs; and 5 were full vacaturs/remands.
- In post-conviction relief cases, including state and federal habeas petitions, there were 8 full affirmances/appeal dismissals; 1 partial COA grant/partial denial; and 1 full vacatur.
- In immigration cases, there was 1 order of en banc rehearing; and t here were 23 dismissals/denials of petitions for review of Board of Immigration Appeals orders; and 1 grant of a petition to review a BIA order.
- In prisoner suits, there were 14 full affirmances/appeal dismissals; and 2 partial affirmances/partial reversals or vacaturs.
- In commercial – civil cases, there were 11 full affirmances/appeal dismissals; 1 partial affirmance/partial reversal/vacatur; 3 full reversals; and 1 certification of a question to a state supreme court.
- In civil rights/constitutional claims (non-prisoner-suits), there were 6 full affirmances/appeal dismissals; 1 partial affirmance/partial reversal or vacatur; and 1 full reversal.
- In qualified immunity cases, there was 1 partial affirmance/partial reversal/vacatur.
- In employment/labor law cases, there were 6 full affirmances/appeal dismissals; 3 partial affirmances/partial reversals/vacaturs; and 1 full reversal.
- In personal injury/non-commercial tort cases, there were 5 full affirmances/appeal dismissals; and 2 full vacaturs.
- In bankruptcy cases, there were 2 full affirmances.
- In arbitration cases, there were 2 full affirmances; and 1 full vacatur.
- In tax law cases, there were 2 full affirmances.
- In environmental law/toxic tort cases, there were 2 full affirmances.
- In administrative law cases, there was 1 full reversal; 1 denial of a petition for agency review, and 3 grants of stays pending resolution of the merits.
- In social security cases, there were 2 full affirmances.
- In maritime law cases, there was 1 full affirmance.
How much law is being made?
- Of the 233 opinions released by the 5th Circuit in November 2021, 36 were designated for publication. 15 of those were full affirmances; 9 were partial affirmances/partial reversal/vacaturs; 5 were full reversals; 2 were full vacaturs; 1 was a certification of a question to a state supreme court; 1 was an order of en banc rehearing; 1 was a denial of a petition to review a BIA order; 1 was a grant of a petition for review of a BIA order; and 1 was an order granting a motion to stay pending appeal.
- 197 of the November opinions were unpublished, including 162 full affirmances/appeal dismissals; 2 partial affirmances/partial reversals or vacaturs; 1 full reversal; 7 full vacaturs; 22 denials/dismissals of petitions to review BIA orders; 1 denial of a petition to review an agency order; 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 November? (Judge Oldham.) Who was the busiest writer, authoring the most attributed opinions? (Judges Haynes and Ho, followed by Judge Smith.) How many opinions did the Court issue per curiam, with no author listed? (202, with 196 of those unpublished.) Who participated in making the most law, participating in the most panels with published opinions? (Judge Smith, followed by Judges King and Ho.) 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 | 5 | 4 | 1 | 3 | 2 | ||
| Jones | 41 | 40 | 1 | 3 | 38 | ||
| Smith | 34 | 34 | 4 | 11 | 23 | ||
| Stewart | 27 | 27 | 4 | 23 | |||
| Dennis | 7 | 7 | 1 | 6 | |||
| Elrod | 43 | 43 | 2 | 5 | 38 | ||
| Southwick | 52 | 52 | 2 | 5 | 47 | ||
| Haynes | 25 | 24 | 3 | 1 | 1 | 8 | 17 |
| Graves | 26 | 26 | 1 | 25 | |||
| Higginson | 14 | 14 | 3 | 4 | 10 | ||
| Costa | 34 | 34 | 1 | 1 | 4 | 30 | |
| Willett | 40 | 38 | 1 | 2 | 6 | 34 | |
| Ho | 40 | 40 | 2 | 3 | 9 | 31 | |
| Duncan | 20 | 20 | 2 | 1 | 4 | 16 | |
| Engelhardt | 38 | 38 | 1 | 3 | 35 | ||
| Oldham | 59 | 58 | 2 | 5 | 54 | ||
| Wilson | 54 | 54 | 2 | 5 | 49 | ||
| Dist. Ct. Judge sitting by designation | |||||||
| King | 32 | 32 | 2 | 9 | 23 | ||
| Jolly | 27 | 27 | 3 | 24 | |||
| Higginbotham | 17 | 17 | 1 | 6 | 11 | ||
| Davis | 31 | 31 | 1 | 1 | 30 | ||
| Wiener | 7 | 7 | 7 | ||||
| Barksdale | 10 | 10 | 10 | ||||
| Clement | 12 | 12 | 2 | 4 | 8 | ||
| per curiam | 202 | 6 | 196 |
Conclusions? Most decisions in November, as always, were unanimous, with only 3 dissenting opinions and 8 concurrences out of 233 opinions. By far the most decisions are per curiam, at 202, against 29 authored opinions. The Fifth Circuit continues to have a very active senior-status bench, with Judges King, Davis, Jolly, and Higginbotham 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 November was from Chief Judge Owen and Judge Dennis.
Wrap it all together, and an opinion in November 2021 was most likely to be an unpublished per curiam affirming a criminal decision from the Northern District of Texas, with Judges Oldham, Wilson, and Southwick on the panel.
Take the Fifth 