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 December 2022 statistics are based on 188 total opinions released by the Court.

Where the appeals are coming from

• The Middle District of Louisiana, with 3 full affirmances; the Southern District of Mississippi, with 7 full affirmances; the Western District of Louisiana, with 7 full affirmances; and the Eastern District of Texas, with 9 full affirmances, were the Fifth Circuit districts with perfect affirmance rates in December 2022.
• The most appellate decisions came out of the Northern District of Texas, with 47 decisions by the Court on cases originating from there. 42 of those were affirmances or appeal dismissals; 1 was a partial affirmance/partial reversal or vacatur; 3 were full reversals; and 1 was a full vacatur.
• From decisions from the Western District of Texas there were 36 full affirmances/appeal dismissals; 1 partial affirmance/partial reversal/vacatur; 1 full reversal; and 2 full vacaturs.
• From decisions out of the Southern District of Texas, there were 27 full affirmances/appeal dismissals; 2 partial affirmances/partial reversals/vacaturs; and 1 published denial of a petition for rehearing en banc.
• From the Eastern District of Louisiana, there were 6 full affirmances/appeal dismissals; and 1 full vacatur.
• From the Northern District of Mississippi, there were 5 full affirmances; and 1 full reversal.
• From petitions for review of Board of Immigration Appeal decisions, there were 29 denials and 2 grants.

What the appeals are about

• The largest number of appeals are of criminal conviction and/or sentencing issues. 82 resulted in full affirmances/appeal dismissals; 1 was a partial affirmance/partial reversal/vacatur; 1 was a full reversal; and 3 were full vacaturs.
• In post-conviction relief cases, including state and federal habeas petitions, there were 4 full affirmances/appeal dismissals.
• In immigration cases, there were 29 dismissals/denials of petitions for review of Board of Immigration Appeals orders; and 2 grants of such petitions.
• In prisoner suits, there were 10 full affirmances/appeal dismissals.
• In commercial – civil cases, there were 21 full affirmances/appeal dismissals; and 2 full reversals.
• In civil rights/constitutional claims (non-prisoner-suits), there were 11 full affirmances/appeal dismissals; 2 partial affirmances/partial reversals/vacaturs; 1 full reversal; and 1 published denial of en banc rehearing.
• In employment/labor law cases, there were 4 full affirmances/appeal dismissals; and 1 full reversal.
• In qualified immunity cases, there were 2 full affirmances/appeal dismissals.
• In personal injury/non-commercial tort cases, there were 2 full affirmances/appeal dismissals; and 1 full vacatur.
• In bankruptcy cases, there were 2 full affirmances.
• In class action cases, there was 1 full affirmance.
• In arbitration cases, there were 2 full affirmances.
• In healthcare law cases, there was 1 full affirmance.
• In products liability cases, there was 1 partial affirmance/partial reversal/vacatur.

How much law is being made?

• Of the 188 opinions released by the 5th Circuit in December 2022, 17 were designated for publication. 9 of those were full affirmances; 2 were partial affirmances/partial reversals/vacaturs; 1 was a full reversal; 1 was a published denial of en banc rehearing; and 4 were denials of petitions for review of BIA orders.
• 171 of the December opinions were unpublished, including 134 full affirmances/appeal dismissals; 2 partial affirmances/partial reversals/vacaturs; 4 full reversals; 4 full vacaturs; 25 denials/dismissals of petitions to review BIA orders; and 2 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 December? (Judge Engelhardt). Who was the busiest writer, authoring the most attributed opinions? (Judge Southwick, followed closely by Judge Higginson). Who separately concurred the most in separate opinions? (Chief Judge Richman and Judge Oldham, with 1 each). Who authored the most dissenting opinions? (Judge Graves, with 2). How many opinions did the Court issue per curiam, with no author listed? (168, with 164 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 Southwick, followed closely by Judge Engelhardt). We have all that below (senior-status judges in italics–Judge Dennis completed December still on active status, but will move to senior status when new Judge Dana Douglas takes her seat):

Judge	On panel	In majority	Author majority	Author concur	Author dissent/ dubitante	Published	Unpublished
Richman	6	6		1		2	4
Jones	28	28	1			4	24
Smith	29	29	1			3	26
Stewart	39	39	1			3	36
Dennis	23	22				2	21
Elrod	28	28				2	26
Southwick	22	22	6			6	16
Haynes	29	28			1	3	26
Graves	27	24	2		2	4	23
Higginson	32	31	4		1	4	28
Willett	33	33	1			4	29
Ho	26	26	1			4	22
Duncan	41	41				3	38
Engelhardt	51	51	1			5	46
Oldham	16	16	1	1		3	13
Wilson	33	33				3	30
Dist. Ct. Judge sitting by designation
King	26	26				1	25
Jolly	6	6					6
Higginbotham	25	25	1			2	23
Davis	11	11					11
Wiener	27	27				1	26
Barksdale	10	10				1	9
Clement	3	3					3
per curiam			168 (3 with separate concurrence or dissent)			4	164

Conclusions? Most decisions in December, as always, were unanimous, with only 4 dissenting opinions and 2 separate concurrences out of 188 opinions. By far the most decisions are per curiam, at 168, against 20 authored opinions. Among senior-status judges, Judges Wiener, 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 December was from Chief Judge Richman and Judge Oldham.

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