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 October 2022 statistics are based on 187 total opinions released by the Court, a relatively light month.
Where the appeals are coming from
- The Middle District of Louisiana, with 2 full affirmances and 1 published denial of en banc rehearing; and the Northern District of Mississippi, with 1 full affirmance, were the Fifth Circuit districts with perfect affirmance rates in October 2022.
- The most appellate decisions came out of the Southern District of Texas, with 52 decisions by the Court on cases originating from there. 48 of those were affirmances or appeal dismissals; 3 were partial affirmances/partial reversals or vacaturs; and 1 was an order of en banc rehearing.
- From decisions from the Western District of Texas there were 33 full affirmances/appeal dismissals; 3 partial affirmances/partial reversals/vacaturs; and 1 full reversal.
- From decisions out of the Northern District of Texas, there were 32 full affirmances/appeal dismissals; 1 partial affirmance/partial reversal/vacatur; 1 denial of mandamus; 1 full vacatur; and 1 order of en banc rehearing.
- From the Eastern District of Texas, there were 6 full affirmances; and 1 full vacatur.
- From the Eastern District of Louisiana, there were 4 full affirmances/appeal dismissals; 1 partial affirmance/partial reversal/vacatur; 1 full reversal; 1 denial of mandamus; and 1 full vacatur.
- From the Western District of Louisiana, there were 9 full affirmances/appeal dismissals; 2 full reversals; and 1 full vacatur.
- From the Southern District of Mississippi, there were 2 full affirmances; and 1 partial affirmance/partial reversal/vacatur.
- From petitions for review of Board of Immigration Appeal decisions, there were 22 denials and 2 grants.
- From appeals from the U.S. Tax Court, there was 1 full affirmance.
- In appeals from agency decisions, there was 1 full affirmance; 1 published denial of en banc rehearing; and 1 grant of a petition for agency review.
What the appeals are about
- The largest number of appeals are of criminal conviction and/or sentencing issues. 79 resulted in full affirmances/appeal dismissals; and 3 were partial affirmances/partial reversals/vacaturs.
- In post-conviction relief cases, including state and federal habeas petitions, there were 3 full affirmances/appeal dismissals; and 1 full vacatur.
- In immigration cases, there was 1 partial affirmance/partial reversal/vacatur; 22 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 15 full affirmances/appeal dismissals; and 1 partial affirmance/partial reversal/vacatur.
- In commercial – civil cases, there were 9 full affirmances/appeal dismissals; 2 partial affirmances/partial reversals/vacaturs; 2 full reversals; 1 denial of mandamus; and 1 full vacatur.
- In civil rights/constitutional claims (non-prisoner-suits), there were 9 full affirmances/appeal dismissals; 1 partial affirmance/partial reversal/vacatur; and 2 published denials of en banc rehearing.
- In employment/labor law cases, there were 4 full affirmances/appeal dismissals; 2 full vacaturs; and 1 order of en banc rehearing.
- In qualified immunity cases, there were 4 full affirmances; and 1 order of en banc rehearing.
- In personal injury/non-commercial tort cases, there were 3 full affirmances/appeal dismissals.
- In bankruptcy cases, there were 3 full affirmances; and 1 partial affirmance/partial reversal/vacatur.
- In tax law cases, there was 1 full affirmance.
- In social security cases, there were 3 full affirmances.
- In environmental law/toxic tort cases, there were 4 full affirmances; 2 full vacaturs, and 1 published denial of en banc rehearing.
- In voting/election law cases, there was 1 full reversal.
- In healthcare law cases, there was 1 denial of mandamus.
- In class action cases, there were 2 full affirmances.
- In administrative law cases, there was 1 full affirmance; and 1 grant of a petition to review an agency decision.
How much law is being made?
- Of the 187 opinions released by the 5th Circuit in October 2022, 29 were designated for publication. 9 of those were full affirmances; 6 were partial affirmances/partial reversals/vacaturs; 3 were full reversals; 2 were denials of mandamus; 1 was a full vacatur; 2 were published denials of en banc rehearing; 2 were orders of 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; and 1 was a grant of a petition to review another agency decision.
- 158 of the October opinions were unpublished, including 130 full affirmances/appeal dismissals; 3 partial affirmances/partial reversals/vacaturs; 1 full reversal; 3 full vacaturs; 20 denials/dismissals of petitions to review BIA orders; and 1 grant of a petition to review a BIA order.
Who was doing what on the Court?
Who was the busiest, in that they were on the most panels issuing opinions in October? (Judge Duncan, followed closely by Judges Southwick and Wilson). Who was the busiest writer, authoring the most attributed opinions? (Judge Duncan). Who separately concurred the most in separate opinions? (Judges Ho and Engelhardt, with 1 each). Who authored the most dissenting opinions? (Judges Dennis and Haynes, with 3 each). How many opinions did the Court issue per curiam, with no author listed? (168, with 156 of those unpublished; but 3 of those not “true” per curia because they featured a separate concurrence or dissent). Who participated in making the most law, participating in the most panels with published opinions? (Judge Duncan, followed closely by Judge Wilson). 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 | 5 | 4 | 1 | 5 | |||
| Jones | 35 | 34 | 1 | 1 | 6 | 29 | |
| Smith | 33 | 32 | 8 | 25 | |||
| Stewart | 29 | 28 | 1 | 5 | 24 | ||
| Dennis | 35 | 31 | 3 | 9 | 26 | ||
| Elrod | 33 | 33 | 2 | 7 | 26 | ||
| Southwick | 44 | 43 | 7 | 37 | |||
| Haynes | 29 | 26 | 3 | 7 | 22 | ||
| Graves | 29 | 27 | 1 | 1 | 7 | 22 | |
| Higginson | 28 | 27 | 1 | 9 | 19 | ||
| Willett | 30 | 30 | 7 | 23 | |||
| Ho | 37 | 37 | 1 | 7 | 30 | ||
| Duncan | 46 | 44 | 4 | 1 | 14 | 32 | |
| Engelhardt | 38 | 38 | 1 | 1 | 8 | 30 | |
| Oldham | 28 | 26 | 1 | 8 | 20 | ||
| Wilson | 43 | 42 | 2 | 12 | 31 | ||
| Dist. Ct. Judge sitting by designation | |||||||
| King | 16 | 16 | 2 | 14 | |||
| Jolly | 11 | 11 | 1 | 3 | 8 | ||
| Higginbotham | 15 | 15 | 1 | 14 | |||
| Davis | 10 | 10 | 2 | 3 | 7 | ||
| Wiener | 19 | 19 | 1 | 18 | |||
| Barksdale | 7 | 7 | 7 | ||||
| Clement | 16 | 16 | 2 | 7 | 9 | ||
| per curiam | 168 (3 with separate concurrence or dissent) | 12 | 156 |
Conclusions? Most decisions in October, as always, were unanimous, with only 10 dissenting opinions and 2 separate concurrences out of 187 opinions. By far the most decisions are per curiam, at 168, against 19 authored opinions. Among senior-status judges, Judges Wiener, King, and Clement had the heaviest participation in panels. Meanwhile, among active-status judges, the lightest production in October was from Chief Judge Richman.
Wrap it all together, and an opinion in October 2022 was most likely to be an unpublished per curiam affirming a criminal decision from the Southern District of Texas, with Judges Duncan, Southwick, and Wilson on the panel.
Take the Fifth 