Take the Fifth

At the end of each month, we tally various statistics from opinions released by the U.S. Court of Appeals for the Fifth Circuit. Then, corresponding to the traditional court term start date of October 1 (using the court term employed by the Supreme Court, though the Fifth Circuit itself compiles statistics on a July-to-June year), we aggregate those statistics to note interesting trends for the previous court year (October through September). This is our second annual compilation, aggregating statistics from October 2021 through September 2022. Judge Costa served through the end of August 2022, then retired from the Court; there is, as yet, no nominee to fill Judge Costa’s seat, leaving the Court with 16 active judges at this point. Chief Judge Owen married and became Chief Judge Richman. Looking ahead to the next court year, Judge Dennis is set to take senior status upon the confirmation of Dana Douglas, currently a magistrate in the Eastern District of Louisiana who has been nominated to take Judge Dennis’s seat. Otherwise, the Court has held stable.

The 2021-2022 statistics are based on 3,165 total opinions released by the Court (up substantially from the 2,331 total opinions released by the Court in the previous year). 2,309 were full affirmances (or appeal dismissals), which, when calculating in denials of petitions for BIA and other agency orders, resulted in a 86.76% affirmance rate across all appeal types (up slightly from last year’s 85.63% affirmance rate); 91 were partial affirmances/partial reversals/vacaturs; 110 were full reversals; 2 were orders of mandamus; 175 were full vacaturs; 7 were certifications of questions to state supreme courts; 6 were published orders denying en banc rehearing; 4 were grants of en banc rehearing; 432 were denials or dismissals of petitions for review of Board of Immigration Appeals decisions; 30 were grants of petitions to review BIA decisions; 5 were denials of petitions to review other agency decisions; 5 were grants of petitions to review other agency decisions; 13 were motion denials; 11 were grants of motions; and 1 was a grant in part/denial in part of a motion.

Appeals by District Court (or other review origin)

• The most appellate decisions in 2021-22, as in 2020-21, came from the Northern District of Texas, with 693 decisions from the 5th Circuit on cases originating there. 604 were full affirmances or appeal dismissals, for an 87% affirmance rate; 13 were partial affirmances/partial reversals/vacaturs; 27 were full reversals; 45 were full vacaturs; 1 was a certification to the state supreme court; 1 was a published opinion denying en banc rehearing; and 2 were motion denials.
• The next-highest number of appeals originated in the Western District of Texas, with 676 total opinions from cases originating there. 588 were full affirmances or appeal dismissals, for an 87% affirmance rate; 17 were partial affirmances/partial reversals/vacaturs; 22 were full reversals; 1 was a mandamus; 36 were full vacaturs; 3 were certifications to the state supreme court; 1 was a published order denying en banc rehearing; 2 were orders of en banc rehearing; 2 were motion denials; and 4 were grants of motions.
• Next was the Southern District of Texas, with 631 total opinions from cases originating there. 519 were full affirmances or appeal dismissals, for an 82% affirmance rate; 27 were partial affirmances/partial reversals/vacaturs; 27 were full reversals; 1 was a mandamus; 47 were full vacaturs; 3 were certifications to the state supreme court; 1 was a published order denying en banc rehearing; 2 were orders of en banc rehearing; 3 were motion denials; and 1 was a grant of a motion.
• Next highest was the Eastern District of Texas, with 177 total opinions from cases originating there. 161 were full affirmances or appeal dismissals, for a 91% affirmance rate; 4 were partial affirmances/partial reversals/vacaturs; 5 were full reversals; 6 were full vacaturs; and 1 was a grant of a motion.
• The Western District of Louisiana had the next highest total number of Fifth Circuit opinions, with a total of 162 opinions originating from there. 133 were full affirmances or appeal dismissals, for an 82% affirmance rate; 7 were partial affirmances/partial reversals/vacaturs; 5 were full reversals; 13 were full vacaturs; 1 was a certification to the state supreme court; 2 were denials of motions; and 1 was a partial grant/partial denial of a motion.
• Next came the Eastern District of Louisiana, with 136 Fifth Circuit opinions originating from cases there. 99 were full affirmances or appeal dismissals, for a 73% affirmance rate; 11 were partial affirmances/partial reversals/vacaturs; 15 were full reversals; 8 were full vacaturs; 2 were certifications to the state supreme court; and 1 was a motion denial.
• The Southern District of Mississippi had the next highest number of Fifth Circuit opinions, with 124. 108 were full affirmances or appeal dismissals, for an 87% affirmance rate; 4 were partial affirmances/partial reversals/vacaturs; 4 were full reversals; and 8 were full vacaturs.
• The next highest point-of-origin district was the Middle District of Louisiana, with 70 opinions. 52 were full affirmances or appeal dismissals, for a 74% affirmance rate; 6 were partial affirmances/partial reversals/vacaturs; 2 were full reversals; 8 were full vacaturs; 1 was a published denial of en banc rehearing; and 1 was a motion denial.
• The lowest number of opinions originated from cases from the Northern District of Mississippi, with a total of 37 opinions originating there. 29 were full affirmances or appeal dismissals, for a 78% affirmance rate; 1 was a partial affirmance/partial reversal/vacatur; 2 were full reversals; and 5 were full vacaturs.
• In addition to the review of District Court decisions, the Fifth Circuit also reviewed 4 decisions of the U.S. Tax Court in 2020-21, fully affirming all 4. The Court also engaged in 19 actions on agency decisions, denying petitions to review 5 of those, granting petitions to review 6, affirming 1, affirmin part and reversing in part 1, fully reversing 1, and issuing 5 published orders granting motions.
• Additionally, the Fifth Circuit reviewed 463 petitions for review of Board of Immigration Appeals decisions (up significantly from last year’s 230), of which 433 were denied or dismissed and 30 were granted, for an “affirmance” rate of 93.52%.

What the appeals are about

• The largest number of appeals are of criminal conviction and/or sentencing issues. 1,502 resulted in full affirmances/appeal dismissals, for an affirmance rate of 91.8%; 24 were partial affirmances/partial reversals/vacaturs; 11 were full reversals; 96 were full vacaturs/remands; 2 were orders of en banc rehearing; and 1 was a motion denial.
• In post-conviction relief cases, including state and federal habeas petitions, there were 114 full affirmances/appeal dismissals, for an 85.71% affirmance rate; 2 partial affirmances/partial reversals/vacaturs; 4 full reversals; 11 full vacaturs/remands; 1 motion denial; and 1 motion grant.
• In immigration cases, there were 8 full affirmances from district court decisions; 1 full vacatur from a district court decision; 1 published denial of en banc rehearing; 1 order of en banc rehearing; 433 dismissals/denials of petitions for review of BIA orders; 30 grants of petitions to review BIA orders; 1 grant of a petition for review of other agency action; and 2 motion denials. The full affirmance rate for combined district court and BIA review was 93.43%.
• In prisoner suits, there were 157 full affirmances/appeal dismissals, for an 86.26% affirmance rate; 7 partial affirmances/partial reversals/vacaturs; 4 full reversals; and 14 full vacaturs.
• In commercial – civil cases, there were 164 full affirmances/appeal dismissals, for a 71.36% affirmance rate; 14 partial affirmances/partial reversals/vacaturs; 27 full reversals; 10 full vacaturs; 4 certifications of questions to state supreme courts; and 1 published order denying en banc rehearing.
• In civil rights/constitutional claims (non-prisoner-suits), there were 105 full affirmances/appeal dismissals, for a 67.3% affirmance rate; 14 partial affirmances/partial reversals/vacaturs; 15 full reversals; 1 order of mandamu; 12 full vacaturs; 1 certification to a state supreme court; 1 published order denying en banc rehearing; 1 order of en banc rehearing; 1 grant a of a petition for review of agency action; 2 motion denials; 2 motion grants; and 1 partial grant/partial denial of a motion.
• In qualified immunity cases, there was 21 full affirmances, for a 47.73% affirmance rate; 8 partial affirmances/partial reversals/vacaturs; 11 full reversals; 3 full vacaturs; and 1 published order denying en banc rehearing.
• In employment/labor law cases, there were 86 full affirmances/appeal dismissals, for a 72.27% affirmance rate; 10 partial affirmances/partial reversals/vacaturs; 14 full reversals; 1 order of mandamus; 4 full vacaturs; 2 denials of petitions for review of agency decisions; 1 grant of a petition for review of an agency decision; and 1 motion denial.
• In personal injury/non-commercial tort cases, there were 70 full affirmances/appeal dismissals, for an 84.34% affirmance rate; 3 partial affirmances/partial reversals/vacaturs; 6 full reversals; 3 full vacaturs; and 1 certification of a question to a state supreme court.
• In social security cases, there were 7 full affirmances and 1 full vacatur, for an 87.5% affirmance rate.
• In bankruptcy cases, there were 38 full affirmances, for a 79.17% affirmance rate; 3 partial affirmances/partial reversals/vacaturs; 2 full reversals; 3 full vacaturs; 1 certification to a state supreme court; and 1 motion denial.
• In abortion cases, there were 3 full affirmances, for a 50% affirmance rate; 2 full vacaturs; 1 certification to a state supreme court; and 2 motion grants.
• In arbitration cases, there were 28 full affirmances, for a 73.68% affirmance rate; 3 partial affirmances/partial reversals/vacaturs; 2 full reversals; 4 full vacaturs; and 1 published order denying en banc rehearing.
• In tax law cases, there were 16 full affirmances, for an 88.89% affirmance rate; 1 partial affirmance/partial reversal/vacatur; and 1 full reversal.
• In healthcare law cases (this category includes ACA challenges and vaccine mandate or other COVID-19-related cases), there were 3 full affirmances, for a 27.27% affirmance rate; 2 full reversals; 6 full vacaturs; and 3 motion denials.
• In voting/election law cases, there were 2 full affirmances, for a 25% affirmance rate; 5 full reversals; 1 full vacatur; 1 certification to a state supreme court; 1 grant of a petition to review an agency decision; and 1 motion denial.
• In environmental law/toxic tort cases, there were 6 full affirmances, for a 66.67% affirmance rate; and 3 partial affirmances/partial reversals/vacaturs.
• In products liability cases, there were 5 full affirmances, for a 62.5% affirmance rate; 3 full reversals; and 1 certification of a question to a state supreme court.
• In maritime law cases, there were 12 full affirmances, for an 85.71% affirmance rate; 1 full reversal; and 1 full vacatur.
• There were 2 attorney discipline appeals, resulting in 1 full affirmance and 1 full vacatur.
• There were 2 international law appeals, with 1 full affirmance and 1 full vacatur.
• In administrative law cases, there were 8 full affirmances; 3 full reversals; 1 full vacatur; 3 denials of petitions for review of agency actions; 2 grants of petitions for review of agency actions; and 5 motion grants.
• In class action cases, there were 3 full affirmances; 1 full vacatur; and 1 motion grant.

How much law is being made?

• Of the 3,165 opinions released by the 5th Circuit in 2021-22, 499 were designated for publication, for a 15.77% publication rate. 231 of those were full affirmances; 55 were partial affirmances/partial reversal/vacaturs; 82 were full reversals; 2 were orders of mandamus; 55 were full vacaturs; 7 were certifications to state supreme courts; 6 were published denials of en banc rehearing; 4 were orders granting en banc rehearing; 27 were denials of petitions for review of BIA orders; 6 were grants of petitions to review BIA orders; 4 were denials of petitions to review other agency decisions; 5 were grants of petitions to review other agency decisions; 8 were denials of motions; 6 were grants of motions; and 1 was a partial grant/partial denial of a motion. The full affirmance rate for published decisions was 51.7%.
• 2,705 of the 2021-22 opinions were unpublished, including 2,078 full affirmances/appeal dismissals; 36 partial affirmances/partial reversals/vacaturs; 28 full reversals; 120 full vacaturs; 3 certifications of questions to a state supreme court; 405 denials/dismissals of petitions to review BIA orders; 24 grants of a petition to review BIA orders; 1 denial of a petition to review other agency decisions; 5 motion denials; and 5 grants of motions. The full affirmance rate for unpublished decisions was 91.8%.

Who was doing what on the Court?

Who was the busiest, in that they were on the most panels issuing opinions in 2021-22? (Judge Duncan, followed closely by Judges Smith, Engelhardt, and Oldham.) Who was the busiest writer, authoring the most attributed opinions? (Judge Higginson, for the second year in a row–which jibes with his publicly professed antipathy toward over-use of the “per curiam” attribution.) How many opinions did the Court issue per curiam, with no author listed? (2,743, with 2,660 of those unpublished.) Who participated in making the most law, participating in the most panels with published opinions? (Judge Smith, followed by Judges Elrod, Higginson, and Willett.) Who was the most “independent” judge, voting with the majority and without entering a separate concurring opinion or joining or authoring a dissent, in the lowest percentage of panels? (Judge Ho, at 94.79%, largely because he is by far the author of the most separate concurring opinions, at 15; the highest number of authored dissenting opinions is Judge Oldham, at 12, followed closely by Judges Haynes (11) and Elrod (10), displacing Judge Dennis as the long-time chief dissenter on the Court.) Which judges always voted with the majority opinion, 100% of the time? (None among active judges this year; among senior-status judges, Judges Wiener and Clement). We have all that below (senior-status judges in italics):

Judge	On panel	In majority	Author majority	Author concur	Author dissent/ dubitante	Published	Unpublished	Pure Majority percentage (no separate concurrence or dissent)
Richman	177	172	11	1	3	64	113	96.61%
Jones	483	473	24	6	6	88	395	96.69%
Smith	520	516	35		2	105	415	99.23%
Stewart	440	436	13		1	65	377	99.09%
Dennis	394	385	14	4	3	70	324	96.70%
Elrod	496	485	26	2	10	98	398	97.38%
Southwick	490	487	25		1	86	404	99.39%
Haynes	465	453	7	1	11	68	397	97.20%
Graves	466	455	16	2	6	70	396	97.21%
Higginson	469	458	35	4	7	98	371	96.80%
Costa	473	463	33	3	6	92	381	97.25%
Willett	490	480	26	3	2	98	392	97.35%
Ho	499	488	11	15	9	82	416	94.79%
Duncan	524	517	27	3	4	90	434	98.09%
Engelhardt	519	514	19		1	91	429	99.04%
Oldham	503	490	22	5	12	92	411	96.42%
Wilson	480	475	27			96	384	98.96%
Dist. Ct. Judge sitting by designation	2	2				1	1	100%
King	378	377	8	2	1	51	327	99.21%
Jolly	291	290	12		1	26	265	99.66%
Higginbotham	395	392	18	2	4	69	326	98.73%
Davis	278	275	10		3	34	244	98.92%
Wiener	316	316	12			24	292	100%
Barksdale	138	136	2		2	17	121	98.55%
Clement	137	137	15			46	91	100%
unattributed
per curiam			2,743			83	2,660

Conclusions? The 2021-22 statistics show that we can often over-emphasize the importance of the composition of the panel, as the lowest percentage judge with regard to voting purely with the majority, without even a separate concurrence, still voted with the majority more than 94% of the time. We also often over-emphasize the difficulty of gaining a reversal or vacatur on appeal when we look to the overall affirmance rates; depending on the type of case, that rate can come way down. The Fifth Circuit’s senior-status bench pulls a lot of weight, with five of the senior-status judges taking on close to or more than 300 opinion panels each during the year.

Wrap it all together, and an opinion in the 2021-22 term was most likely to be an unpublished per curiam affirming a criminal decision from the Northern District of Texas, with Judges Smith, Duncan, and Engelhardt on the panel.

Issues to watch in 2022-23

There are two issues with opinion mechanics that we’ll keep an eye on in this next year, each of which reared their heads in this past year and were particularly called out in various public panels by judges on the Court. One is use of the “per curiam” author-attribution, particularly where the opinion is not a unanimous opinion and arguably, therefore, not truly “for the court.” A particularly egregious example of this in this past year was the en banc 9-1-7 decision in Harness v. Watson, where the 9-member majority was an unattributed “per curiam” decision regarding the constitutionality of Mississippi’s felon-disenfranchisement law. We will start to keep a tally of non-for-the-whole-court “per curiam” opinions. The other is the Court’s employment of its rule regarding designation of opinions for publication, which was called out by Judge Smith in his dissent from a denial of en banc rehearing in Sambrano v. United Airlines. For this past year, the percentage of opinions not designated for publication was 85.47%; in the 2020-21 year, the percentage was 80.27%. Now that Judge Smith has forcefully critiqued the Court’s use of the unpublished disposition, we’ll track to see if this next year’s percentage goes back down.

We’ll also be curious to see if the composition of the Court undergoes much additional change in the wake of the mid-term elections and any possible change in the control of the Senate. As noted above, as of this writing Judge Dana Douglas has not been confirmed for Judge Dennis’s seat, and no one has been nominated to fill the vacancy caused by Judge Costa’s retirement. Other judges who have (or will have by the end of this year) the age and seniority to take senior status or retire at full-vested benefits include Chief Judge Richman and Judges Jones, Smith, Stewart, Southwick, Graves, and Engelhardt. (Of course, only two of those seven were appointed by a Democratic president, to the extent that factors into their decision to take senior status or retire).