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 January 2023 statistics are based on 238 total opinions released by the Court (50 more than in the previous month).

Where the appeals are coming from

• The Southern District of Mississippi, with 11 full affirmances; and the Eastern District of Texas, with 17 full affirmances, were the Fifth Circuit districts with perfect affirmance rates in January 2023.
• The most appellate decisions came out of the Western District of Texas, with 62 decisions by the Court on cases originating from there. 58 of those were affirmances or appeal dismissals; 1 was a partial affirmance/partial reversal or vacatur; 1 was a full reversal; 1 was a full vacatur; and 1 was a published denial of en banc rehearing.
• From decisions from the Northern District of Texas there were 52 full affirmances/appeal dismissals; and 1 full reversal.
• From decisions out of the Southern District of Texas, there were 30 full affirmances/appeal dismissals; 1 partial affirmance/partial reversal/vacatur; 1 full reversal; 3 full vacaturs; and 1 published denial of a motion.
• From the Eastern District of Louisiana, there were 6 full affirmances/appeal dismissals; 1 full reversal; and 1 full vacatur.
• From the Middle District of Louisiana, there were 3 full affirmances/appeal dismissals; 1 full vacatur; 1 certification of a question to the state supreme court; and 1 published denial of en banc rehearing.
• From the Western District of Louisiana, there were 12 full affirmances/appeal dismissals; and 1 full reversal.
• From the Northern District of Mississippi, there were 3 full affirmances/appeal dismissals; and 1 partial affirmance/partial reversal/vacatur.
• From petitions for review of Board of Immigration Appeal decisions, there were 22 denials and 1 grant.
• From petitions for review or action on other agency decisions, there was 1 grant of mandamus; 1 order of en banc rehearing; 2 denials of petitions for review; and 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. 135resulted in full affirmances/appeal dismissals; 1 was a partial affirmance/partial reversal/vacatur; and 3 were full vacaturs.
• In post-conviction relief cases, including state and federal habeas petitions, there were 6 full affirmances/appeal dismissals.
• In immigration cases, there were 22 dismissals/denials of petitions for review of Board of Immigration Appeals orders; and 1 grants of such a petition.
• In prisoner suits, there were 13 full affirmances/appeal dismissals.
• In commercial – civil cases, there were 14 full affirmances/appeal dismissals; and 1 full reversal.
• In civil rights/constitutional claims (non-prisoner-suits), there were 5 full affirmances/appeal dismissals; 1 full reversal; and 1 full vacatur.
• In employment/labor law cases, there were 11 full affirmances/appeal dismissals; and 1 full reversal.
• In qualified immunity cases, there was 1 full affirmance/appeal dismissal; 1 partial affirmance/partial reversal/vacatur; and 1 published denial of en banc rehearing.
• In personal injury/non-commercial tort cases, there were 3 full affirmances/appeal dismissals; and 1 full reversal.
• In bankruptcy cases, there were 3 full affirmances; and 1 full vacatur.
• In class action cases, there was 1 partial affirmance/partial reversal/vacatur; and 1 full vacatur.
• In arbitration cases, there was 1 published denial of rehearing en banc.
• In social security cases, there was 1 full affirmance.
• In environmental law/toxic tort cases, there was 1 certification of a question to a state supreme court; and 1 denial of a petition for review of an agency order.
• In administrative law cases, there was 1 full reversal; 1 order of mandamus; 1 order of en banc rehearing; 1 denial of a petition for review of an agency order; and 1 grant of a petition for review of an agency order

How much law is being made?

• Of the 238 opinions released by the 5th Circuit in January 2023, 32 were designated for publication. 18 of those were full affirmances; 1 was a partial affirmance/partial reversal/vacatur; 3 were full reversals; 1 was an order of mandamus; 3 were full vacaturs; 1 was a certification of a question to a state supreme court; 2 were published denials of en banc rehearing; 1 was an order of en banc rehearing; 1 was the denial of a petition for review of an agency order; and 1 was a grant of a petition for review of an agency order.
• 206 of the January opinions were unpublished, including 174 full affirmances/appeal dismissals; 2 partial affirmances/partial reversals/vacaturs; 2 full reversals; 3 full vacaturs; 22 denials/dismissals of petitions to review BIA orders; 1 grant of a petition to review a BIA order; 1 denial of a petition to review another agency’s order; and 1 denial of a motion.

Who was doing what on the Court?

First off, the “who” on the Court changed up a bit in January 2023, with Judge Dana Douglas taking her seat on the Court and Judge James Dennis taking senior status. Who was the busiest, in that they were on the most panels issuing opinions in January? (Judge Higginbotham). Who was the busiest writer, authoring the most attributed opinions? (Judges Southwick and Higginbotham). Who separately concurred the most in separate opinions? (Judge Ho). Who authored the most dissenting opinions? (Judges Haynes, Higginson, and Dennis, with 1 each). How many opinions did the Court issue per curiam, with no author listed? (211, with 205 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 Higginbotham, followed closely by Judge Haynes). 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	9	9				2	7
Jones	37	37	1			9	28
Smith	47	47	3			7	40
Stewart	38	38				6	32
Elrod	39	39	2			3	36
Southwick	42	42	4			9	33
Haynes	44	43		1	1	11	33
Graves	36	35				3	33
Higginson	24	23			1	5	19
Willett	23	23				2	21
Ho	43	43		2		3	40
Duncan	38	38	1			5	33
Engelhardt	38	38	1			4	34
Oldham	43	43	2			8	35
Wilson	30	30	1			3	27
Douglas	35	35				1	34
Dist. Ct. Judge sitting by designation
King	21	21	3			5	16
Jolly	7	7	1				7
Higginbotham	54	54	3	1		12	42
Davis	17	17				1	16
Wiener	22	22					22
Barksdale	14	14	1			2	12
Dennis	17	15	1		1	2	15
Clement	4	4	1			1	3
per curiam			213 (3 with separate concurrence or dissent)			6	207

Conclusions? Most decisions in January, as always, were unanimous, with only 3 dissenting opinions and 4 separate concurrences out of 238 opinions. By far the most decisions are per curiam, at 213, against 25 authored opinions. Among senior-status judges, Judge Higginbotham had the heaviest participation in panels, participating in more than any other judge on the Circuit; and Judges Wiener and King also had significant panel participation. Meanwhile, among active-status judges, the lightest production in January was from Chief Judge Richman.

Wrap it all together, and an opinion in January 2023 was most likely to be an unpublished per curiam affirming a criminal decision from the Western District of Texas, with Judges Higginbotham, Haynes, and Oldham on the panel.