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 January 2022 statistics are based on 262 total opinions released by the Court.

Where the appeals are coming from

• The most appellate decisions came from the Southern District of Texas, with 60 decisions from the 5th Circuit on cases originating there. 52 were full affirmances or appeal dismissals; 1 was a partial affirmance/partial reversal or vacatur; and 7 were full vacaturs.
• From decisions out of the Western District of Texas, there were 55 full affirmances/appeal dismissals; 1 full reversal; and 2 certifications to the Texas Supreme Court.
• From the Northern District of Texas, there were 37 full affirmances/appeal dismissals; 2 full reversals; and 8 full vacaturs.
• From the Eastern District of Texas, there were 17 full affirmances/appeal dismissals; 1 partial affirmance/partial reversal or vacatur; and 2 full vacaturs
• From the Western District of Louisiana, there were 10 full affirmances/appeal dismissals; 2 full reversals; and 1 full vacatur.
• From the Middle District of Louisiana, there were 4 full affirmances/appeal dismissals; and 1 full vacatur.
• From the Eastern District of Louisiana, there were 4 full affirmances/appeal dismissals; 1 partial affirmance/partial reversal or vacatur; 4 full reversals; 1 full vacatur; and 1 certification to the Louisiana Supreme Court.
• From the Northern District of Mississippi, there were 2 full affirmances/appeal dismissals; and 1 full vacatur.
• From the Southern District of Mississippi, there were 7 full affirmances/appeal dismissals; and 1 full reversal.
• In petitions for review of Board of Immigration Appeals decisions, there were 39 petition denials/dismissals and 4 petition grants.

What the appeals are about

• The largest number of appeals are of criminal conviction and/or sentencing issues. 122 resulted in full affirmances/appeal dismissals; 1 was a full reversal; and 14 were full vacaturs/remands.
• In post-conviction relief cases, including state and federal habeas petitions, there were 7 full affirmances/appeal dismissals; and 1 full reversal.
• In immigration cases, there were 2 full affirmances; and there were 39 dismissals/denials of petitions for review of Board of Immigration Appeals orders; and 4 grants of a petition to review a BIA order.
• In prisoner suits, there were 15 full affirmances/appeal dismissals; and 2 full vacaturs.
• In commercial – civil cases, there were 15 full affirmances/appeal dismissals; 2 partial affirmances/partial reversals or vacaturs; 4 full reversals; and 1 full vacatur.
• In civil rights/constitutional claims (non-prisoner-suits), there were 6 full affirmances/appeal dismissals; 1 full reversal; and 2 full vacaturs.
• In qualified immunity cases, there were 2 full affirmances; 1 partial affirmance/partial reversal/vacatur; and 1 full reversal.
• In employment/labor law cases, there were 4 full affirmances/appeal dismissals.
• In personal injury/non-commercial tort cases, there was 1 full affirmance/appeal dismissal; and 1 full reversal.
• In bankruptcy cases, there were 5 full affirmances; 1 full vacatur; and 1 certification to a state supreme court.
• In ACA challenge cases, there was 1 full reversal.
• In tax law cases, there was 1 full affirmance.
• In administrative law cases, there was 1 full affirmance.
• In maritime law cases, there were 2 full affirmances.
• In abortion law cases, there was 1 full affirmance; and 1 certification to a state supreme court.
• In arbitration cases, there was 1 full affirmance.
• In social security cases, there was 1 full affirmance.
• In environmental law/toxic tort cases, there was 1 full affirmance.
• In products liability cases, there was 1 full affirmance; and 1 certification to a state supreme court.

How much law is being made?

• Of the 262 opinions released by the 5th Circuit in January 2022, 42 were designated for publication. 17 of those were full affirmances; 3 were partial affirmances/partial reversal/vacaturs; 8 were full reversals; 7 were full vacaturs; 3 were certifications to state supreme courts; and 4 were denials of petitions to review BIA orders.
• 225 of the January opinions were unpublished, including 171 full affirmances/appeal dismissals; 2 full reversals; 13 full vacaturs; 35 denials/dismissals of petitions to review BIA orders; and 4 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 January? (Judge Higginson.) Who was the busiest writer, authoring the most attributed opinions? (Judge Higginson, followed by Judges Jones and Graves.) How many opinions did the Court issue per curiam, with no author listed? (221, with 217 of those unpublished.) Who participated in making the most law, participating in the most panels with published opinions? (Judge Higginson, followed by Judge Engelhardt.) 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	35	35	1			6	29
Jones	37	37	5			9	28
Smith	51	51	2			7	44
Stewart	32	32	1			5	29
Dennis	31	29	1		1	3	28
Elrod	51	51	3			7	44
Southwick	39	39	2			5	33
Haynes	37	36			1	2	35
Graves	42	39	3		2	6	36
Higginson	58	56	5	1	1	15	43
Costa	37	36	2			7	30
Willett	28	27	2			6	22
Ho	28	27	2	1	1	6	22
Duncan	45	45	1			5	40
Engelhardt	35	35	2			11	24
Oldham	36	35			1	3	33
Wilson	38	38	2			6	32
Dist. Ct. Judge sitting by designation
King	23	23				8	15
Jolly	21	21	2			4	17
Higginbotham	41	41	2	1		6	35
Davis	24	24	3			4	20
Wiener	24	24					24
Barksdale	6	6					6
Clement	10	10				5	5
per curiam			221			4	217

Conclusions? Most decisions in January, as always, were unanimous, with only 7 dissenting opinions and 3 concurrences out of 262 opinions. By far the most decisions are per curiam, at 221, against 41 authored opinions. The Fifth Circuit continues to have a very active senior-status bench, with Judge Higginbotham participating in more panels than many of the active-status judges, and Judges Davis, Wiener, King, and Jolly participating in at least 21 each. Meanwhile, among active-status judges, the lightest production in January was from Judges Willett and Ho.

Wrap it all together, and an opinion in January 2022 was most likely to be an unpublished per curiam affirming a criminal decision from the Southern District of Texas, with Judges Higginson, Smith, and Elrod on the panel.