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 November 2022 statistics are based on 209 total opinions released by the Court.
Where the appeals are coming from
- The Middle District of Louisiana, with 4 full affirmances; the Northern District of Mississippi, with 1 full affirmance; and the Southern District of Mississippi, with 5 full affirmances, were the Fifth Circuit districts with perfect affirmance rates in November 2022.
- The most appellate decisions came out of the Northern District of Texas, with 51 decisions by the Court on cases originating from there. 45 of those were affirmances or appeal dismissals; 2 were partial affirmances/partial reversals or vacaturs; 1 was a full reversal; 2 were full vacaturs; and 1 was a published order denying en banc rehearing.
- From decisions from the Western District of Texas there were 39 full affirmances/appeal dismissals; 1 partial affirmance/partial reversal/vacatur; 1 grant of mandamus; and 6 full vacaturs.
- From decisions out of the Southern District of Texas, there were 34 full affirmances/appeal dismissals; 1 partial affirmance/partial reversal/vacatur; 1 full reversal; and 9 full vacaturs.
- From the Eastern District of Texas, there were 9 full affirmances; and 1 full reversal.
- From the Eastern District of Louisiana, there were 10 full affirmances/appeal dismissals; 1 partial affirmance/partial reversal/vacatur; and 2 full vacaturs.
- From the Western District of Louisiana, there were 10 full affirmances/appeal dismissals; and 1 full vacatur.
- From petitions for review of Board of Immigration Appeal decisions, there were 21 denials.
What the appeals are about
- The largest number of appeals are of criminal conviction and/or sentencing issues. 100 resulted in full affirmances/appeal dismissals; 2 were partial affirmances/partial reversals/vacaturs; 10 were full vacaturs; and 1 was a published order denying en banc rehearing.
- In post-conviction relief cases, including state and federal habeas petitions, there were 7 full affirmances/appeal dismissals; and 1 partial affirmance/partial reversal/vacatur.
- In immigration cases, there was 1 full affirmance; and 21 dismissals/denials of petitions for review of Board of Immigration Appeals orders.
- In prisoner suits, there were 15 full affirmances/appeal dismissals; 1 full reversal; and 3 full vacaturs.
- In commercial – civil cases, there were 7 full affirmances/appeal dismissals; and 2 full vacaturs.
- In civil rights/constitutional claims (non-prisoner-suits), there were 11 full affirmances/appeal dismissals; 1 partial affirmance/partial reversal/vacatur; 1 full reversal; and 3 full vacaturs.
- In employment/labor law cases, there were 8 full affirmances/appeal dismissals.
- In qualified immunity cases, there were 2 full vacaturs.
- In personal injury/non-commercial tort cases, there was 1 full affirmance/appeal dismissal.
- In bankruptcy cases, there were 3 full affirmances.
- In social security cases, there was 1 full affirmance.
- In class action cases, there was 1 full reversal.
- In attorney discipline cases, there was 1 partial affirmance/partial reversal/vacatur.
- In abortion law cases, there was 1 issuance of mandamus.
- In arbitration cases, there was 1 full affirmance.
- In maritime law cases, there was 1 full affirmance.
How much law is being made?
- Of the 209 opinions released by the 5th Circuit in November 2022, 30 were designated for publication. 15 of those were full affirmances; 4 were partial affirmances/partial reversals/vacaturs; 2 were full reversals; 1 was a grant of mandamus; 6 were full vacaturs; 1 was a published denial of en banc rehearing; and 1 was a denial of a petition for review of a BIA order.
- 178 of the November opinions were unpublished, including 142 full affirmances/appeal dismissals; 1 partial affirmance/partial reversal/vacatur; 1 full reversal; 14 full vacaturs; and 20 denials/dismissals 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 November? (Judge Oldham). Who was the busiest writer, authoring the most attributed opinions? (Judge Oldham, followed closely by Judge Higginson). Who separately concurred the most in separate opinions? (Judges Oldham, with 2). Who authored the most dissenting opinions? (Judge Dennis, with 2). How many opinions did the Court issue per curiam, with no author listed? (180, with 175 of those unpublished; but 4 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 Oldham, followed closely by Judge Willett). 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 | 7 | 7 | 1 | 2 | 5 | ||
| Jones | 33 | 32 | 1 | 1 | 4 | 29 | |
| Smith | 36 | 35 | 2 | 5 | 31 | ||
| Stewart | 29 | 29 | 4 | 25 | |||
| Dennis | 29 | 27 | 1 | 1 | 2 | 3 | 26 |
| Elrod | 25 | 25 | 1 | 1 | 3 | 22 | |
| Southwick | 30 | 30 | 3 | 8 | 22 | ||
| Haynes | 39 | 39 | 1 | 6 | 33 | ||
| Graves | 36 | 36 | 1 | 4 | 32 | ||
| Higginson | 32 | 32 | 5 | 7 | 25 | ||
| Willett | 36 | 34 | 3 | 1 | 8 | 28 | |
| Ho | 40 | 39 | 1 | 1 | 2 | 38 | |
| Duncan | 40 | 39 | 3 | 7 | 33 | ||
| Engelhardt | 33 | 32 | 5 | 28 | |||
| Oldham | 44 | 42 | 3 | 2 | 1 | 9 | 35 |
| Wilson | 28 | 28 | 6 | 22 | |||
| Dist. Ct. Judge sitting by designation | |||||||
| King | 24 | 24 | 1 | 23 | |||
| Jolly | 5 | 5 | 1 | 1 | 4 | ||
| Higginbotham | 38 | 38 | 2 | 1 | 6 | 32 | |
| Davis | 14 | 14 | 14 | ||||
| Wiener | 18 | 17 | 1 | 1 | 17 | ||
| Barksdale | 14 | 14 | 5 | 9 | |||
| Clement | 7 | 7 | 2 | 3 | 4 | ||
| per curiam | 180 (4 with separate concurrence or dissent) | 5 | 175 |
Conclusions? Most decisions in November, as always, were unanimous, with only 6 dissenting opinions and 8 separate concurrences out of 209 opinions. By far the most decisions are per curiam, at 180, against 29 authored opinions. Among senior-status judges, Judges Higginbotham and King had the heaviest participation in panels, participating in as many as most active-status judges. Meanwhile, among active-status judges, the lightest production in November was from Chief Judge Richman.
Wrap it all together, and an opinion in November 2022 was most likely to be an unpublished per curiam affirming a criminal decision from the Northern District of Texas, with Judges Oldham, Duncan, and Ho on the panel.
Take the Fifth 