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 February 2023 statistics are based on 216 total opinions released by the Court (22 fewer than in the previous month).
Where the appeals are coming from
- The Southern District of Mississippi, with 8 full affirmances; and the Northern District of Mississippi, with 1 full affirmance, were the Fifth Circuit districts with perfect affirmance rates in February 2023.
- The Western District of Texas and the Southern District of Texas tied in February for the district with the most decisions originating from there, each with 50 total decisions. In the Western District of Texas, 48 of those were affirmances or appeal dismissals; 1 was a partial affirmance/partial reversal or vacatur; and 1 was a published denial of en banc rehearing. In the Southern District of Texas, 40 were affirmances/appeal dismissals; 1 was a partial affirmance/partial reversal/vacatur; 5 were full reversals; 1 was a denial of mandamus; 2 were full vacaturs; and 1 was an order for en banc rehearing.
- From decisions from the Northern District of Texas there were 43 full affirmances/appeal dismissals; 1 full vacatur; and 2 published orders denying en banc rehearing.
- From the Eastern District of Texas, there were 5 full affirmances/appeal dismissals; and 2 full vacaturs.
- From the Eastern District of Louisiana, there were 8 full affirmances/appeal dismissals; 1 partial affirmance/partial reversal/vacatur; and 1 full reversal.
- From the Middle District of Louisiana, there were 2 full affirmances/appeal dismissals; 1 full reversal; 1 full vacatur; and 1 certification of a question to the state supreme court.
- From the Western District of Louisiana, there were 7 full affirmances/appeal dismissals; 1 full reversal; and 1 full vacatur.
- From petitions for review of Board of Immigration Appeal decisions, there were 28 denials and 1 grant.
What the appeals are about
- The largest number of appeals are of criminal conviction and/or sentencing issues. 118 resulted in full affirmances/appeal dismissals; 1 was a partial affirmance/partial reversal/vacatur; 2 were full reversals; 4 were full vacaturs; and 1 was a published denial of en banc rehearing.
- In post-conviction relief cases, including state and federal habeas petitions, there were 5 full affirmances/appeal dismissals; and 1 full vacatur.
- In immigration cases, there were 28 dismissals/denials of petitions for review of Board of Immigration Appeals orders; and 1 grant of such a petition.
- In prisoner suits, there were 10 full affirmances/appeal dismissals; and 1 partial affirmance/partial reversal/vacatur.
- In commercial – civil cases, there were 10 full affirmances/appeal dismissals; 2 full reversals; 1 denial of mandamus; and 1 full vacatur.
- In civil rights/constitutional claims (non-prisoner-suits), there were 7 full affirmances/appeal dismissals; and 1 full certification to a state supreme court.
- In employment/labor law cases, there were 5 full affirmances/appeal dismissals; and 1 full reversal.
- In qualified immunity cases, there was 1 full reversal; 1 full vacatur; and 2 published denials of en banc rehearing.
- In personal injury/non-commercial tort cases, there were 4 full affirmances/appeal dismissals.
- In bankruptcy cases, there were 2 full affirmances.
- In environmental law/toxic tort cases, there was 1 order of en banc rehearing.
- In maritime law cases, there was 1 full affirmance.
- In administrative law cases, there were 2 full reversals.
- In attorney discipline cases, there was 1 partial affirmance/partial reversal/vacatur.
How much law is being made?
- Of the 216 opinions released by the 5th Circuit in February 2023, 26 were designated for publication. 6 of those were full affirmances; 2 were partial affirmances/partial reversals/vacaturs; 6 were full reversals; 1 was a denial of mandamus; 3 were full vacaturs; 1 was a certification of a question to a state supreme court; 3 were published denials of en banc rehearing; 1 was an order of en banc rehearing; 2 were denials of petitions for review of BIA orders; and 1 was a grant of a petition for review of an BIA order.
- 190 of the February opinions were unpublished, including 157 full affirmances/appeal dismissals; 1 partial affirmance/partial reversal/vacatur; 2 full reversals; 4 full vacaturs; and 26 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 February? (Judge Ho). Who was the busiest writer, authoring the most attributed opinions? (Judges Ho and Oldham). Who concurred the most in separate opinions? (Judges Ho and Oldham). Who authored the most dissenting opinions? (Judges Ho and Oldham). How many opinions did the Court issue per curiam, with no author listed? (194, with 190 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 Graves). 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 | 13 | 11 | 1 | 8 | 5 | ||
| Jones | 37 | 35 | 1 | 7 | 30 | ||
| Smith | 39 | 36 | 2 | 6 | 33 | ||
| Stewart | 35 | 35 | 6 | 29 | |||
| Elrod | 37 | 37 | 1 | 1 | 6 | 31 | |
| Southwick | 31 | 31 | 1 | 6 | 25 | ||
| Haynes | 42 | 42 | 3 | 39 | |||
| Graves | 39 | 38 | 1 | 10 | 29 | ||
| Higginson | 35 | 33 | 3 | 8 | 27 | ||
| Willett | 39 | 39 | 1 | 6 | 33 | ||
| Ho | 48 | 46 | 1 | 2 | 1 | 7 | 41 |
| Duncan | 41 | 39 | 1 | 1 | 8 | 33 | |
| Engelhardt | 28 | 28 | 2 | 7 | 21 | ||
| Oldham | 37 | 34 | 1 | 2 | 1 | 8 | 29 |
| Wilson | 39 | 38 | 1 | 7 | 32 | ||
| Douglas | 26 | 25 | 3 | 23 | |||
| Dist. Ct. Judge sitting by designation | |||||||
| King | 20 | 20 | 1 | 3 | 17 | ||
| Jolly | 8 | 8 | 1 | 8 | |||
| Higginbotham | 28 | 28 | 1 | 4 | 24 | ||
| Davis | 8 | 8 | 8 | ||||
| Wiener | 15 | 15 | 15 | ||||
| Barksdale | 13 | 13 | 13 | ||||
| Dennis | 15 | 15 | 1 | 3 | 12 | ||
| Clement | 8 | 8 | 1 | 7 | |||
| per curiam | 194 (3 with separate concurrence or dissent) | 4 | 190 |
Conclusions? Most decisions in February, as always, were unanimous, with only 2 dissenting opinions and 7 separate concurrences out of 216 opinions. By far the most decisions are per curiam, at 194, against 20 authored opinions. Among senior-status judges, Judge Higginbotham had the heaviest participation in panels. Meanwhile, among active-status judges, the lightest production in February was from Chief Judge Richman.
Wrap it all together, and an opinion in February 2023 was most likely to be an unpublished per curiam affirming a criminal decision from the Western District of Texas, with Judges Ho, Haynes, and Duncan on the panel.
Take the Fifth 