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 May 2022 statistics are based on 292 total opinions released by the Court.
Where the appeals are coming from
- The Western District of Louisiana and the Eastern District of Texas were the only districts with perfect affirmance rates in May; the W.D. La. had 12 affirmances/appeal dismissals on appeals originating from that district, and the E.D. Tex. also had 12 affirmances/appeal dismissals.
- The most appellate decisions came from the Northern District of Texas, with 59 decisions from the 5th Circuit on cases originating there. 57 were full affirmances or appeal dismissals; 1 was a full reversal; and 1 was a certification of questions to a state supreme court.
- From decisions out of the Western District of Texas, there were 49 full affirmances/appeal dismissals; 1 partial affirmance/partial reversal/vacatur; and 4 full vacaturs.
- From the Southern District of Texas, there were 52 full affirmances/appeal dismissals; 2 full reversals; 1 writ of mandamus; 2 full vacaturs; and 1 published denial of rehearing en banc.
- From the Eastern District of Louisiana, there were 13 full affirmances/appeal dismissals; 1 partial affirmance/partial reversal/vacatur; and 2 full reversals.
- From the Middle District of Louisiana, there were 5 full affirmances/appeal dismissals; 1 full reversal; and 1 full vacatur.
- From the Southern District of Mississippi, there were 15 full affirmances/appeal dismissals; 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 46 petition denials/dismissals; 4 petition grants or remands; and 1 denial of a motion.
- In petitions for other agency review, there was 1 grant of a petition for review; and 1 grant of another motion.
What the appeals are about
- The largest number of appeals are of criminal conviction and/or sentencing issues. 134 resulted in full affirmances/appeal dismissals; 1 was a partial affirmance/partial reversal/vacatur; 1 was a full reversal; and 7 were full vacaturs/remands.
- In post-conviction relief cases, including state and federal habeas petitions, there were 13 full affirmances/appeal dismissals.
- In immigration cases, there were 46 dismissals/denials of petitions for review of Board of Immigration Appeals orders; 4 grants/remands of petitions to review BIA orders; and 1 denial of a motion.
- In prisoner suits, there were 14 full affirmances/appeal dismissals.
- In commercial – civil cases, there were 12 full affirmances/appeal dismissals; 1 partial affirmance/partial reversal/vacatur; 1 full reversal; 1 full vacatur; 1 certification of questions to a state supreme court; and 1 opinion on denial of rehearing en banc.
- In civil rights/constitutional claims (non-prisoner-suits), there were 13 full affirmances/appeal dismissals; 1 full reversal; and 2 full vacaturs.
- In employment/labor law cases, there were 10 full affirmances/appeal dismissals; 1 full reversal; and 1 mandamus.
- In personal injury/non-commercial tort cases, there were 7 full affirmances/appeal dismissals; and 1 full reversal.
- In bankruptcy cases, there were 6 full affirmances.
- In products liability cases, there was 1 full affirmance.
- In maritime law cases, there were 2 full affirmances.
- In arbitration cases, there were 2 full affirmances; and 1 full reversal.
- In tax cases, there was 1 full affirmance.
- In class action cases, there were 2 full affirmances.
- In administrative law cases, there was 1 full affirmance; and 1 granting of a motion.
How much law is being made?
- Of the 292 opinions released by the 5th Circuit in May 2022, 39 were designated for publication. 21 of those were full affirmances; 1 was a partial affirmance/partial reversal/vacatur; 5 were full reversals; 1 was a mandamus; 4 were full vacaturs; 1 was a certification of questions to a state supreme court; 1 was an order denying en banc rehearing; 2 were denials of petitions for review of BIA orders; 1 was a grant of a petition for review of a BIA order; 1 was a grant of a petition to review an agency order; and 1 was a denial of a petition for review of an agency order.
- 253 of the May opinions were unpublished, including 197 full affirmances/appeal dismissals; 1 partial affirmance/partial reversal/vacatur; 1 full reversal; 6 full vacaturs; 44 denials/dismissals of petitions to review BIA orders; 3 grants of petitions to review BIA orders; and 1 granting 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 May? (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 | 15 | 15 | 1 | 6 | 9 | ||
| Jones | 46 | 46 | 1 | 1 | 7 | 39 | |
| Smith | 46 | 46 | 3 | 12 | 34 | ||
| Stewart | 34 | 34 | 3 | 31 | |||
| Dennis | 31 | 31 | 3 | 6 | 25 | ||
| Elrod | 33 | 32 | 1 | 1 | 6 | 27 | |
| Southwick | 32 | 32 | 5 | 27 | |||
| Haynes | 27 | 26 | 3 | 24 | |||
| Graves | 43 | 43 | 3 | 40 | |||
| Higginson | 53 | 52 | 2 | 1 | 8 | 45 | |
| Costa | 61 | 60 | 3 | 10 | 51 | ||
| Willett | 62 | 61 | 5 | 15 | 47 | ||
| Ho | 61 | 60 | 1 | 10 | 51 | ||
| Duncan | 52 | 52 | 3 | 8 | 44 | ||
| Engelhardt | 52 | 51 | 4 | 9 | 43 | ||
| Oldham | 35 | 34 | 2 | 1 | 9 | 26 | |
| Wilson | 38 | 37 | 2 | 12 | 26 | ||
| Dist. Ct. Judge sitting by designation | |||||||
| King | 39 | 39 | 2 | 37 | |||
| Jolly | 30 | 30 | 1 | 1 | 29 | ||
| Higginbotham | 42 | 42 | 4 | 38 | |||
| Davis | 36 | 35 | 1 | 4 | 32 | ||
| Wiener | 19 | 19 | 1 | 18 | |||
| Barksdale | 10 | 10 | 10 | ||||
| Clement | 4 | 4 | 4 | ||||
| per curiam | 261 | 10 | 251 |
Conclusions? Most decisions in May, as always, were unanimous, with only 4 dissenting opinions and 2 concurrences out of 292 opinions. By far the most decisions are per curiam, at 261, against 31 authored opinions. The Fifth Circuit continues to have a very active senior-status bench, with Judges King, 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 May was from Chief Judge Richman.
Wrap it all together, and an opinion in May 2022 was most likely to be an unpublished per curiam affirming a criminal decision from the Northern District of Texas, with Judges Willett, Costa, and Ho on the panel.
Take the Fifth 