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 April 2022 statistics are based on 311 total opinions released by the Court.

Where the appeals are coming from

• The Middle District of Louisiana was the only district with a perfect affirmance rate in April, with 6 affirmances/appeal dismissals on appeals originating from that district.
• The most appellate decisions came from the Western District of Texas, with 75 decisions from the 5th Circuit on cases originating there. 64 were full affirmances or appeal dismissals; 1 was a partial affirmance/partial reversal or vacatur; 2 were full reversals; 1 was a mandamus; and 7 were full vacaturs.
• From decisions out of the Northern District of Texas, there were 53 full affirmances/appeal dismissals; 4 full reversals; and 2 full vacaturs.
• From the Southern District of Texas, there were 53 full affirmances/appeal dismissals; 2 partial affirmances/partial reversals/vacaturs; 5 full reversals; 2 full vacaturs; and 1 certification to the state supreme court.
• From the Eastern District of Texas, there were 16 full affirmances/appeal dismissals; and 1 full reversal.
• From the Western District of Louisiana, there were 9 full affirmances/appeal dismissals; and 1 partial affirmance/partial reversal/vacatur.
• From the Eastern District of Louisiana, there were 12 full affirmances/appeal dismissals; 1 partial affirmance/partial reversal/vacatur; 1 full reversal; and 1 full vacatur.
• From the Southern District of Mississippi, there were 18 full affirmances/appeal dismissals; 1 partial affirmance/partial reversal/vacatur; and 2 full vacaturs.
• From the Northern District of Mississippi, there were 3 full affirmances; and 1 full vacatur.
• In petitions for review of Board of Immigration Appeals decisions, there were 37 petition denials/dismissals; and 3 petition grants or remands.
• 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. 137 resulted in full affirmances/appeal dismissals; 1 was a partial affirmance/partial reversal/vacatur; 1 was a full reversal; and 9 were full vacaturs/remands.
• In post-conviction relief cases, including state and federal habeas petitions, there were 10 full affirmances/appeal dismissals; 1 partial affirmance/partial reversal/vacatur; 1 full reversal; and 2 full vacaturs.
• In immigration cases, there was 1 published denial of en banc rehearing; 37 dismissals/denials of petitions for review of Board of Immigration Appeals orders; and 3 grants/remands of petitions to review BIA orders.
• In prisoner suits, there were 29 full affirmances/appeal dismissals; and 1 full vacatur.
• In commercial – civil cases, there were 13 full affirmances/appeal dismissals; 3 full reversals; and 1 full vacatur.
• In civil rights/constitutional claims (non-prisoner-suits), there were 9 full affirmances/appeal dismissals; 2 partial affirmances/partial reversals/vacaturs; 2 full reversals; 1 mandamus; and 1 certification to a state supreme court.
• In qualified immunity cases, there were 2 full affirmances; and 1 full reversal.
• In employment/labor law cases, there were 12 full affirmances/appeal dismissals; 2 full reversals; and 1 denial of a petition for review of an agency ruling.
• In personal injury/non-commercial tort cases, there were 9 full affirmances/appeal dismissals; and 2 full reversals.
• In bankruptcy cases, there were 8 full affirmances; and 1 partial affirmance/partial reversal/vacatur.
• In products liability cases, there was 1 full reversal.
• In maritime law cases, there were 2 full affirmances.
• In abortion law cases, there was 1 full vacatur.
• In healthcare/immunization cases, there was 1 full affirmance; and 1 full vacatur.
• In arbitration cases, there was 1 full affirmance.
• In environmental law/toxic tort cases, there was 1 partial affirmance/partial reversal/vacatur.
• In attorney discipline matters, there was 1 full affirmance.

How much law is being made?

• Of the 311 opinions released by the 5th Circuit in April 2022, 39 were designated for publication. 17 of those were full affirmances; 2 were partial affirmances/partial reversal/vacaturs; 10 were full reversals; 1 was a mandamus; 5 were full vacaturs; 1 was an order denying en banc rehearing; 1 was a denial of a petition for review of a BIA order; 1 was a grant of a petition for review of a BIA order; and 1 was a denial of a petition for review of other agency order.
• 273 of the April opinions were unpublished, including 217 full affirmances/appeal dismissals; 4 partial affirmance/partial reversal/vacatur; 3 full reversals; 10 full vacaturs; 1 certification of questions to a state supreme court; 36 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 April? (Judge Ho.) Who was the busiest writer, authoring the most attributed opinions? (Judge Higginson.) How many opinions did the Court issue per curiam, with no author listed? (273, with 268 of those unpublished.) Who participated in making the most law, participating in the most panels with published opinions? (Judge Higginson.) We have all that below (senior-status judges in italics):

Judge	On panel	In majority	Author majority	Author concur	Author dissent/ dubitante	Published	Unpublished
Richman/Owen	7	6				5	2
Jones	50	49	1			5	45
Smith	53	52	2			7	46
Stewart	57	57	2			9	48
Dennis	39	38	2	1	1	9	30
Elrod	48	47	2		1	10	38
Southwick	38	38	3			8	30
Haynes	39	38				4	35
Graves	43	43		1		2	41
Higginson	49	46	6	1	3	13	36
Costa	56	56	1			6	50
Willett	50	50	2			6	44
Ho	64	62		1	2	4	59
Duncan	55	54	1	1	1	5	50
Engelhardt	50	50	2			6	44
Oldham	31	30	2			6	25
Wilson	31	30	2			6	25
Dist. Ct. Judge sitting by designation
King	53	53	1	1		2	51
Jolly	30	30	1			1	29
Higginbotham	22	22	3			4	18
Davis	31	31	1			4	27
Wiener	26	26	1				26
Barksdale	12	10			2	2	10
Clement	16	16	3			6	10
per curiam			273			5	268

Conclusions? Most decisions in April, as always, were unanimous, with only 10 dissenting opinions and 6 concurrences out of 311 opinions. By far the most decisions are per curiam, at 273, against 38 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, Wiener, and Higginbotham participating in as many panels as most of the active-status judges. Meanwhile, among active-status judges, the lightest production in April was from Chief Judge Richman.

Wrap it all together, and an opinion in April 2022 was most likely to be an unpublished per curiam affirming a criminal decision from the Western District of Texas, with Judges Ho, Stewart, and Costa on the panel.