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 December 2021 statistics are based on 232 total opinions released by the Court.

Where the appeals are coming from

• The most appellate decisions came from the Southern District of Texas, with 68 decisions from the 5th Circuit on cases originating there. 57 were full affirmances or appeal dismissals; 3 were partial affirmances/partial reversals or vacaturs; 2 were full reversals; 5 were full vacaturs; and 1 was a published denial of en banc rehearing.
• The Middle District of Louisiana, Northern District of Mississippi, Southern District of Mississippi, and Eastern District of Texas had perfect affirmance rates in December, with 4 full affirmances from the Middle District of Louisiana, 3 full affirmances from the Northern District of Mississippi, 5 full affirmances from the Southern District of Mississippi, and 12 full affirmances (plus 1 grant of a motion) from the Eastern District of Texas.
• From decisions out of the Western District of Texas, there were 31 full affirmances/appeal dismissals; 2 full reversals; 1 full vacatur; and 1 grant of a motion.
• From the Northern District of Texas, there were 48 full affirmances/appeal dismissals; 2 partial affirmances/partial reversals or vacaturs; 2 full reversals; 4 full vacaturs; and 1 denial of a motion.
• From the Eastern District of Louisiana, there were 5 full affirmances/appeal dismissals; 1 full reversal; and 1 full vacatur.
• From the Western District of Louisiana, there were 8 full affirmances/appeal dismissals; 1 full vacatur; and 1 opinion granting a motion in part and denying in part.
• From the U.S. Tax Court, there was 1 full affirmance.
• In petitions for review of Board of Immigration Appeals decisions, there were 25 petition denials/dismissals and 2 petition grants.
• In petitions for other agency review, there was 1 full reversal of an agency decision, and 1 denial of a petition for agency review.

What the appeals are about

• The largest number of appeals are of criminal conviction and/or sentencing issues. 115 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 10 full affirmances/appeal dismissals; and 1 full vacatur.
• In immigration cases, there were 3 affirmances; and there were 25 dismissals/denials of petitions for review of Board of Immigration Appeals orders; and 2 grants of a petition to review a BIA order.
• In prisoner suits, there were 13 full affirmances/appeal dismissals; and 1 full vacatur.
• In commercial – civil cases, there were 12 full affirmances/appeal dismissals; 4 full reversals; and 2 full vacaturs.
• In civil rights/constitutional claims (non-prisoner-suits), there were 4 full affirmances/appeal dismissals; 1 partial affirmance/partial reversal or vacatur; 1 full vacatur; and 1 grant of a motion.
• In qualified immunity cases, there was 1 partial affirmance/partial reversal/vacatur; and 1 denial of a petition for en banc rehearing.
• In employment/labor law cases, there were 6 full affirmances/appeal dismissals; 1 full reversal; and 1 denial of a motion.
• In personal injury/non-commercial tort cases, there were 3 full affirmances/appeal dismissals; and 1 partial affirmance/partial reversal or vactur.
• In bankruptcy cases, there were 3 full affirmances; and 1 full reversal.
• In ACA challenge cases, there was 1 full vacatur.
• In tax law cases, there was 1 full affirmance.
• In administrative law cases, there were 2 full affirmances; 1 full reversal; and 1 denial of a petition for agency review.
• In maritime law cases, there were 2 full affirmances; and 1 full reversal.
• In class action cases, there was 1 partial grant of a motion to stay discovery pending a 23(f) appeal of class certification.
• In international law cases, there was 1 full vacatur.

How much law is being made?

• Of the 232 opinions released by the 5th Circuit in December 2021, 39 were designated for publication. 17 of those were full affirmances; 4 were partial affirmances/partial reversal/vacaturs; 6 were full reversals; 4 were full vacaturs; 1 was a denial of en banc rehearing; 3 were denials of petitions to review BIA orders; 1 was a denial of a petition for other agency review; 1 was a denial of a motion; 2 were orders granting motions; and 1 was a partial grant/partial denial of a motion.
• 192 of the December opinions were unpublished, including 157 full affirmances/appeal dismissals; 1 partial affirmance/partial reversal or vacatur; 2 full reversals; 8 full vacaturs; 22 denials/dismissals of petitions to review BIA orders; and 2 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 December? (Judge Duncan.) Who was the busiest writer, authoring the most attributed opinions? (Judge Elrod, followed by Judges Oldham and Wiener.) How many opinions did the Court issue per curiam, with no author listed? (196, with 191 of those unpublished.) Who participated in making the most law, participating in the most panels with published opinions? (Judge Wilson, followed by Judges Dennis, Elrod, and Haynes.) 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	24	23	1			7	17
Jones	23	21	2		1	8	15
Smith	31	30	3			7	24
Stewart	41	40	1			7	34
Dennis	23	21	1		1	9	14
Elrod	22	20	3	1	2	9	13
Southwick	28	27	2			6	22
Haynes	34	32	1		2	9	25
Graves	38	37	1			6	32
Higginson	45	44	2	1		8	37
Costa	38	37	2		1	7	31
Willett	41	41				5	36
Ho	34	33		1	1	8	26
Duncan	53	52	2		1	8	45
Engelhardt	39	37	2		1	8	31
Oldham	26	25	3	1	1	8	18
Wilson	39	38	2			10	29
Dist. Ct. Judge sitting by designation
King	24	24				2	22
Jolly	22	22	1			1	21
Higginbotham	46	46	2			4	42
Davis	13	13				2	11
Wiener	21	21	4			4	17
Barksdale	13	13				2	11
Clement	5	5	1			2	3
per curiam			196			5	191

Conclusions? Most decisions in December, as always, were unanimous, with only 11 dissenting opinions and 4 concurrences out of 232 opinions. By far the most decisions are per curiam, at 196, against 36 authored opinions. The Fifth Circuit continues to have a very active senior-status bench, with Judges King, 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 December was from Judges Jones, Dennis, and Elrod.

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