August 2022 opinion statistics

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 August 2022 statistics are based on 325 total opinions released by the Court.

Where the appeals are coming from

  • None of the district courts within the Fifth Circuit had perfect affirmance rates on cases being resolved by the Court in August 2022.
  • The most appellate decisions came out of the Northern District of Texas, with 77 decisions by the Court on cases originating from there. 65 of those were affirmances or appeal dismissals; 2 were partial affirmances/partial reversals or vacaturs; 1 was a full reversal; 8 were full vacaturs; and1 was an order denying rehearing en banc.
  • From decisions from the Western District of Texas there were 53 full affirmances/appeal dismissals; 4 partial affirmances/partial reversals/vacaturs; 5 full reversals; 2 full vacaturs; 1 opinion on a denial of en banc rehearing; and 1 opinion denying an order.
  • From decisions out of the Southern District of Texas, there were 38 full affirmances/appeal dismissals; 3 partial affirmances/partial reversals/vacaturs; 4 full reversals; 5 full vacaturs; 1 order of en banc rehearing; and 1 grant of a motion.
  • From the Eastern District of Texas, there were 15 full affirmances/appeal dismissals; and 1 full reversal.
  • From the Eastern District of Louisiana, there were 11 full affirmances/appeal dismissals; 1 partial affirmance/partial reversal/vacatur; 1 full reversal; and 1 full vacatur.
  • From the Middle District of Louisiana, there were 6 full affirmances/appeal dismissals; and 1 full reversal.
  • From the Western District of Louisiana, there were 19 full affirmances/appeal dismissals; 1 partial affirmance/partial reversal/vacatur; 3 full vacaturs; and 1 motion denial.
  • From the Northern District of Mississippi, there were 5 full affirmances/appeal dismissals; and 1 full reversal.
  • From the Southern District of Mississippi, there were 5 full affirmances/appeal dismissals; 1 partial affirmance/partial reversal/vacatur; 2 full reversals; and 1 full vacatur.
  • From petitions for review of Board of Immigration Appeal decisions, there were 52 denials and 2 grants.
  • 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. 119 resulted in full affirmances/appeal dismissals; 2 were partial affirmances/partial reversals/vacaturs; 4 were full reversals; 5 were full vacaturs/remands; 1 was an order of en banc rehearing; and 1 was a denial of an motion.
  • In post-conviction relief cases, including state and federal habeas petitions, there were 15 full affirmances/appeal dismissals; 2 full vacaturs; 1 motion denial; and 1 motion grant.
  • In immigration cases, there was 1 full vacatur; 52 dismissals/denials of petitions for review of Board of Immigration Appeals orders; and 2 grants/remands of petitions to review BIA orders.
  • In prisoner suits, there were 19 full affirmances/appeal dismissals; 2 full reversals; and 2 full vacaturs.
  • In commercial – civil cases, there were 18 full affirmances/appeal dismissals; 2 partial affirmances/partial reversals/vacaturs; 1 full reversal; and 2 full vacaturs.
  • In civil rights/constitutional claims (non-prisoner-suits), there were 14 full affirmances/appeal dismissals; 4 partial affirmances/partial reversals/vacaturs; and 3 full vacaturs.
  • In employment/labor law cases, there were 9 full affirmances/appeal dismissals; 2 partial affirmances/partial reversals/vacaturs; 2 full reversals; and 1 full vacatur.
  • In qualified immunity cases, there were 5 full affirmances; and 5 full reversals.
  • In personal injury/non-commercial tort cases, there were 8 full affirmances/appeal dismissals; and 1 full vacatur.
  • In bankruptcy cases, there were 4 full affirmances; and 1 partial affirmance/partial reversal/vacatur.
  • In arbitration cases, there was 1 partial affirmance/partial reversal/vacatur; 1 full reversal; and 1 opinion on a denial of en banc rehearing.
  • In healthcare law cases, there was 1 opinion on a denial of en banc rehearing.
  • In tax law cases, there were 3 full affirmances; and 1 full reversal.
  • 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 full reversal.
  • In administrative law cases, there was 1 full vacatur; and 1 grant of a petition for agency review.
  • In attorney discipline/sanction cases, there was 1 full vacatur.

How much law is being made?

  • Of the 325 opinions released by the 5th Circuit in August 2022, 67 were designated for publication, a marked increase from the norm, by almost double. 31 of those were full affirmances; 10 were partial affirmances/partial reversals/vacaturs; 11 were full reversals; 8 were full vacaturs; 2 were opinions on denials of en banc rehearing; 1 was an order of en banc rehearing; 2 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 grant of a motion.
  • 258 of the August opinions were unpublished, including 185 full affirmances/appeal dismissals; 2 partial affirmances/partial reversals/vacaturs; 5 full reversals; 12 full vacaturs; 50 denials/dismissals of petitions to review BIA orders; 2 grants of petitions to review BIA orders; and 2 motion denials.

Who was doing what on the Court?

Who was the busiest, in that they were on the most panels issuing opinions in August? (Judge Oldham.) Who was the busiest writer, authoring the most attributed opinions? (Judge Costa, in his final month before his resignation took effect August 31, 2022.) How many opinions did the Court issue per curiam, with no author listed? (265, with 255 of those unpublished.) Who participated in making the most law, participating in the most panels with published opinions? (Judge Smith.) We have all that below (senior-status judges in italics):

JudgeOn
panel
In
majority
Author
majority
Author
concur
Author
dissent/
dubitante
PublishedUnpublished
Richman3029211416
Jones56533121442
Smith5958412237
Stewart414031328
Dennis4441211529
Elrod6964441653
Southwick575621542
Haynes6563121154
Graves56513131739
Higginson47444111730
Costa2320811185
Willett5350411835
Ho56532411541
Duncan5048712030
Engelhardt565521541
Oldham7571132055
Wilson585731840
Dist. Ct. Judge
sitting by
designation
111
King2828424
Jolly22221121
Higginbotham484811038
Davis1111110
Wiener4040634
Barksdale1010137
Clement26262818
per curiam26510255

Conclusions? While most decisions in August, as always, were unanimous, there was a much larger number of separate dissenting and concurring opinions (indeed, no Judge on the Court was in the majority of every opinion on which they were on the panel, the first time that has happened in almost two years of our keeping these statistics), with 19 dissenting opinions and 11 concurrences out of 325 opinions. By far the most decisions are per curiam, at 265, against 60 authored opinions (another number much higher than normal, though among the “per curiam” was a 9-1-7 en banc decision, calling into doubt just what the Court thinks “per curiam” even means). The Fifth Circuit continues to have a very active senior-status bench, with Judges Wiener and Higginbotham participating in as many panels as many of the active-status judges, and Judges King, Clement, and Jolly also participating in a large number of panels. Meanwhile, among active-status judges, the lightest production in August was from Chief Judge Richman.

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