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 February 2022 statistics are based on 203 total opinions released by the Court.
Where the appeals are coming from
- The Middle District of Louisiana and the Northern District of Mississippi were the only two districts with perfect affirmance rates in February, with 2 full affirmances of opinions from each district.
- The most appellate decisions came from the Northern District of Texas, with 55 decisions from the 5th Circuit on cases originating there. 44 were full affirmances or appeal dismissals; 1 was a partial affirmance/partial reversal or vacatur; 2 were full reversals; 7 were full vacaturs; and 1 was a denial of a motion for stay pending appeal.
- From decisions out of the Western District of Texas, there were 37 full affirmances/appeal dismissals; and 4 full vacaturs.
- From the Southern District of Texas, there were 24 full affirmances/appeal dismissals; 1 partial affirmance/partial reversal/vacatur; 1 full reversal; 3 full vacaturs; 1 order certifying questions to a state supreme court; and 1 order denying a stay pending appeal.
- From the Eastern District of Texas, there were 13 full affirmances/appeal dismissals; and 1 full vacatur.
- From the Western District of Louisiana, there were 17 full affirmances/appeal dismissals; 1 partial affirmance/partial reversal/vacatur; 1 full reversal; and 1 order denying stay pending appeal.
- From the Eastern District of Louisiana, there were 6 full affirmances/appeal dismissals; 3 full reversals; and 1 denial of a motion.
- From the Southern District of Mississippi, there were 4 full affirmances/appeal dismissals; 1 full reversal; and 1 full vacatur.
- In petitions for review of Board of Immigration Appeals decisions, there were 21 petition denials/dismissals.
- In petitions for other agency review, there was 1 denial.
What the appeals are about
- The largest number of appeals are of criminal conviction and/or sentencing issues. 94 resulted in full affirmances/appeal dismissals; and 11 were full vacaturs/remands.
- In post-conviction relief cases, including state and federal habeas petitions, there were 10 full affirmances/appeal dismissals; 1 full reversal; and 1 full vacatur.
- In immigration cases, there were 21 dismissals/denials of petitions for review of Board of Immigration Appeals orders.
- In prisoner suits, there were 5 full affirmances/appeal dismissals; and 1 partial affirmance/partial reversal/vacatur.
- In commercial – civil cases, there were 10 full affirmances/appeal dismissals; 2 partial affirmances/partial reversals or vacaturs; 2 full reversals; 2 full vacaturs; and 1 certification of questions to a state supreme court.
- In civil rights/constitutional claims (non-prisoner-suits), there were 4 full affirmances/appeal dismissals; and 1 full vacatur.
- In qualified immunity cases, there were 2 full affirmances; and 2 full reversals.
- In employment/labor law cases, there were 8 full affirmances/appeal dismissals; and 1 full vacatur.
- In personal injury/non-commercial tort cases, there were 7 full affirmances/appeal dismissals; and 1 full reversal.
- In bankruptcy cases, there were 3 full affirmances.
- In healthcare challenge cases (which include COVID-19 vaccine-mandate cases), there was 1 full affirmance; 1 full reversal; and 3 denials of motions to stay pending appeal.
- In tax law cases, there was 1 full affirmance.
- In administrative law cases, there were 2 full affirmances; and 1 denial of a petition for agency review.
- 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 reversal.
- In class action cases, there was 1 full affirmance.
How much law is being made?
- Of the 203 opinions released by the 5th Circuit in February 2022, 39 were designated for publication. 23 of those were full affirmances; 2 were partial affirmances/partial reversal/vacaturs; 5 were full reversals; 4 were full vacaturs; 1 was a certification to a state supreme court; 1 was the denial of a petition for review of an agency order; and 3 were denials of motions for stay.
- 164 of the February opinions were unpublished, including 126 full affirmances/appeal dismissals; 1 partial affirmance/partial reversal/vacatur; 3 full reversals; 12 full vacaturs; 21 denials/dismissals of petitions to review BIA orders; and 1 denial of a motion.
Who was doing what on the Court?
Who was the busiest, in that they were on the most panels issuing opinions in February? (Judge Costa.) Who was the busiest writer, authoring the most attributed opinions? (Judge Wilson, followed by Judges Clement, Graves, Higginson, and Oldham.) How many opinions did the Court issue per curiam, with no author listed? (166, with 159 of those unpublished.) Who participated in making the most law, participating in the most panels with published opinions? (Judge Willett.) 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 | 11 | 11 | 1 | 6 | 5 | ||
| Jones | 40 | 40 | 1 | 8 | 32 | ||
| Smith | 30 | 29 | 1 | 1 | 5 | 25 | |
| Stewart | 25 | 25 | 2 | 4 | 21 | ||
| Dennis | 13 | 13 | 1 | 5 | 8 | ||
| Elrod | 31 | 31 | 2 | 5 | 26 | ||
| Southwick | 11 | 11 | 2 | 7 | 4 | ||
| Haynes | 17 | 17 | 2 | 15 | |||
| Graves | 35 | 35 | 3 | 5 | 30 | ||
| Higginson | 25 | 24 | 2 | 1 | 5 | 20 | |
| Costa | 53 | 52 | 1 | 1 | 5 | 48 | |
| Willett | 46 | 45 | 1 | 1 | 13 | 33 | |
| Ho | 46 | 45 | 1 | 1 | 7 | 39 | |
| Duncan | 31 | 30 | 1 | 1 | 7 | 24 | |
| Engelhardt | 36 | 36 | 8 | 28 | |||
| Oldham | 14 | 13 | 2 | 1 | 6 | 8 | |
| Wilson | 7 | 7 | 4 | 5 | 2 | ||
| Dist. Ct. Judge sitting by designation | |||||||
| King | 39 | 39 | 2 | 4 | 35 | ||
| Jolly | 23 | 23 | 1 | 3 | 20 | ||
| Higginbotham | 23 | 23 | 2 | 6 | 17 | ||
| Davis | 31 | 31 | 2 | 5 | 26 | ||
| Wiener | 8 | 8 | 1 | 7 | |||
| Barksdale | 15 | 15 | 2 | 13 | |||
| Clement | 11 | 11 | 3 | 5 | 6 | ||
| per curiam | 166 | 7 | 159 |
Conclusions? Most decisions in February, as always, were unanimous, with only 7 dissenting opinions and 1 concurrence out of 203 opinions. By far the most decisions are per curiam, at 166, against 37 authored opinions. The Fifth Circuit continues to have a very active senior-status bench, with Judge King participating in more panels than many of the active-status judges, and Judges Davis, Jolly, and Higginbotham participating in as many panels as most of the active-status judges. Meanwhile, among active-status judges, the lightest production in February was from Chief Judge Owen and Judges Wilson and Southwick.
Wrap it all together, and an opinion in February 2022 was most likely to be an unpublished per curiam affirming a criminal decision from the Northern District of Texas, with Judges Costa, Willett, and Ho on the panel.
Take the Fifth 