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 June 2022 statistics are based on 323 total opinions released by the Court.

Where the appeals are coming from

• No district court within the Fifth Circuit had a perfect affirmance rate in June 2022.
• The most appellate decisions came from the Western District of Texas, with 71 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; 8 were full vacaturs; and 1 was an order of en banc rehearing.
• From decisions out of the Southern District of Texas, there were 60 full affirmances/appeal dismissals; 4 partial affirmances/partial reversals/vacaturs; 3 full reversals; and 3 full vacaturs.
• From the Northern District of Texas, there were 43 full affirmances/appeal dismissals; 3 partial affirmances/partial reversals/vacaturs; 4 full reversals; and 1 full vacatur.
• From the Eastern District of Texas, there were 13 full affirmances/appeal dismissals; and 1 full reversal.
• From the Eastern District of Louisiana, there were 12 full affirmances/appeal dismissals; 1 partial affirmance/partial reversal/vacatur; 1 full reversal; and 4 full vacaturs.
• From the Middle District of Louisiana, there were 6 full affirmances/appeal dismissals; 2 partial affirmances/partial reversals/vacaturs; 3 full vacaturs; and 1 denial of a motion.
• From the Western District of Louisiana, there were 9 full affirmances/appeal dismissals; 1 full reversal; and one certification of questions to the state supreme court.
• From the Southern District of Mississippi, there were 8 full affirmances/appeal dismissals; and 1 full vacatur.
• From the Northern District of Mississippi, there were 4 full affirmances; and 1 full vacatur.
• In petitions for review of Board of Immigration Appeals decisions, there were 57 petition denials/dismissals; and 3 petition grants or remands.
• There was 1 full affirmance of a U.S. Tax Court decision.
• In petitions for other agency review, there was 1 grant of a petition for review.

What the appeals are about

• The largest number of appeals are of criminal conviction and/or sentencing issues. 133 resulted in full affirmances/appeal dismissals; 6 were partial affirmances/partial reversals/vacaturs; and 7 were full vacaturs/remands.
• In post-conviction relief cases, including state and federal habeas petitions, there were 12 full affirmances/appeal dismissals; and 1 full vacatur.
• In immigration cases, there was 1 full affirmance; 57 dismissals/denials of petitions for review of Board of Immigration Appeals orders; 3 grants/remands of petitions to review BIA orders; and 1 grant of a petition for review of a Department of Homeland Security decision.
• In prisoner suits, there were 18 full affirmances/appeal dismissals; 2 partial affirmances/partial reversals/vacaturs; 1 full reversal; and 2 full vacaturs.
• In commercial – civil cases, there were 20 full affirmances/appeal dismissals; 1 partial affirmance/partial reversal/vacatur; and 4 full reversals.
• In civil rights/constitutional claims (non-prisoner-suits), there were 11 full affirmances/appeal dismissals; 2 partial affirmances/partial reversals/vacaturs; 2 full reversals; and 1 order of en banc rehearing.
• In employment/labor law cases, there were 4 full affirmances/appeal dismissals; and 3 full reversals.
• In qualified immunity cases, there was 1 full affirmance; 1 partial affirmance/partial reversal/vacatur; 1 full reversal; and 3 full vacaturs.
• In personal injury/non-commercial tort cases, there were 5 full affirmances/appeal dismissals; 1 partial affirmance/partial reversal/vacatur; and 1 certification of questions to a state supreme court.
• In bankruptcy cases, there were 2 full affirmances; and 2 full vacaturs.
• In maritime law cases, there was 1 full vacatur.
• In arbitration cases, there was 1 full affirmance; and 1 full vacatur.
• In abortion law cases, there was 1 full vacatur.
• In healthcare law cases, there was 1 full affirmance and 1 full vacatur.
• In social security cases, there was 1 full affirmance; and 1 full vacatur.
• In election law cases, there was 1 full vacatur.
• In tax cases, there were 2 full affirmances.
• In administrative law cases, there was 1 full affirmance; and 1 full reversal.

How much law is being made?

• Of the 323 opinions released by the 5th Circuit in June 2022, 53 were designated for publication. 20 of those were full affirmances; 8 were partial affirmances/partial reversals/vacaturs; 10 were full reversals; 6 were full vacaturs; 1 was a certification of questions to a state supreme court; 1 was an order granting en banc rehearing; 5 were denials of petitions for review of BIA orders; 1 was a grant of a petition to review an agency order; and 1 was a denial of a motion.
• 270 of the June opinions were unpublished, including 193 full affirmances/appeal dismissals; 5 partial affirmances/partial reversals/vacaturs; 2 full reversals; 15 full vacaturs; 52 denials/dismissals of petitions to review BIA orders; and 3 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 June? (Judge Oldham.) Who was the busiest writer, authoring the most attributed opinions? (Judge Oldham, followed closely by Judge Southwick.) How many opinions did the Court issue per curiam, with no author listed? (277, with 265 of those unpublished.) Who participated in making the most law, participating in the most panels with published opinions? (Judges Elrod and Oldham, followed closely by Judges Southwick, Haynes, and Costa.) 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	3	3				1	2
Jones	28	28	3			6	22
Smith	44	44	3			9	35
Stewart	46	46	1			4	42
Dennis	34	34		1		6	28
Elrod	31	31	2			11	20
Southwick	58	58	5			10	48
Haynes	51	49			2	10	41
Graves	41	41				8	33
Higginson	59	59	4			8	51
Costa	56	55	2		1	10	46
Willett	49	49	3			8	41
Ho	38	38	2			3	35
Duncan	48	48	3			5	43
Engelhardt	49	49	2			6	44
Oldham	66	65	5		1	11	55
Wilson	54	54	3			9	45
Dist. Ct. Judge sitting by designation	1	1				1
King	34	34				4	30
Jolly	39	39	1			2	37
Higginbotham	50	50	2			8	42
Davis	14	13			1	4	10
Wiener	36	36	2			6	30
Barksdale	18	18	1			3	15
Clement	18	18	1			5	13
per curiam			277			12	265

Conclusions? Most decisions in June, as always, were unanimous, with only 5 dissenting opinions and 1 concurrences out of 323 opinions. By far the most decisions are per curiam, at 277, against 46 authored opinions. The Fifth Circuit continues to have a very active senior-status bench, with Judges King, Jolly, Higginbotham, and Wiener participating in as many panels as most of the active-status judges. Meanwhile, among active-status judges, the lightest production in June was from Chief Judge Richman.

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