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 March 2023 statistics are based on 284 total opinions released by the Court (68 more than in the previous month).
Where the appeals are coming from
- The Southern District of Mississippi, with 16 full affirmances; the Northern District of Mississippi, with 7 full affirmances; and the Middle District of Louisiana, with 5 full affirmances, were the Fifth Circuit districts with perfect affirmance rates in March 2023.
- The Northern District of Texas was the district with the most decisions originating from there, 74 total decisions. In the district, 69 of those were affirmances or appeal dismissals; 1 was a partial affirmance/partial reversal or vacatur; 1 was a full reversal; 2 were full vacaturs; and 1 was a grant of a Certificate of Appealability.
- From the Western District of Texas, 58 decisions were full affirmances/appeal dismissals; 1 was a full reversal; and 3 were full vacaturs.
- From decisions from the Southern District of Texas there were 42 full affirmances/appeal dismissals; 5 partial affirmances/partial reversals/vacaturs; 2 full reversals; 2 full vacaturs; and 1 published order denying en banc rehearing.
- From the Eastern District of Texas, there were 14 full affirmances/appeal dismissals; and 1 full vacatur.
- From the Eastern District of Louisiana, there were 4 full affirmances/appeal dismissals; 2 partial affirmances/partial reversals/vacaturs; and 1 full vacatur.
- From the Western District of Louisiana, there were 13 full affirmances/appeal dismissals; 3 partial affirmances/partial reversals/vacaturs; and 1 full reversal.
- From petitions for review of Board of Immigration Appeal decisions, there were 22 denials; 1 grant; and 1 order for attorneys’ fees.
- From petitions for review of other agency decisions, there were 3 denials of petitions; 1 grant of a petition; and 1 stay pending review.
What the appeals are about
- The largest number of appeals are of criminal conviction and/or sentencing issues. 130 resulted in full affirmances/appeal dismissals; 3 were partial affirmances/partial reversals/vacaturs; and 5 were full vacaturs.
- In post-conviction relief cases, including state and federal habeas petitions, there were 8 full affirmances/appeal dismissals; and 1 grant of a Certificate of Appealability.
- In immigration cases, there were 22 dismissals/denials of petitions for review of Board of Immigration Appeals orders; 1 grant of such a petition; and 1 order of attorneys’ fees.
- In prisoner suits, there were 18 full affirmances/appeal dismissals; and 2 full reversals.
- In commercial – civil cases, there were 20 full affirmances/appeal dismissals; and 1 full vacatur.
- In civil rights/constitutional claims (non-prisoner-suits), there were 17 full affirmances/appeal dismissals; 1 full vacatur; 1 published order denying rehearing en banc; and 1 denial of a petition for review of agency action.
- In employment/labor law cases, there were 13 full affirmances/appeal dismissals; 5 partial affirmances/partial reversals/vacaturs; 1 full reversal; 1 full vacatur; and 1denial of a petition for review of an agency order.
- In qualified immunity cases, there were 2 full affirmances/appeal dismissals; 3 partial affirmances/partial reversals/vacaturs; and 2 full reversals.
- In personal injury/non-commercial tort cases, there were 8 full affirmances/appeal dismissals.
- In bankruptcy cases, there were 2 full affirmances.
- In environmental law/toxic tort cases, there was 1 full affirmance.
- In maritime law cases, there was 1 full affirmance.
- In administrative law cases, there was 1 denial of a petition for review of an agency order; 1 grant of a petition for review of an agency order; and 1 stay pending review..
- In healthcare law cases, there was 1 full affirmance/appeal dismissal.
- In arbitration law cases, there were 3 full affirmances.
- In tax law cases, there were 2 full affirmances.
- In social security cases, there was 1 full affirmance.
- In voting/election law cases, there was 1 full affirmance; and 1 full vacatur.
How much law is being made?
- Of the 284 opinions released by the 5th Circuit in March 2023, 36 were designated for publication. 21 of those were full affirmances; 4 were partial affirmances/partial reversals/vacaturs; 1 was a full reversal; 3 were full vacaturs; 1 was a published denial of en banc rehearing; 1 was a denial of a petition for review of a BIA order; 2 were orders denying petitions for other agency review; 1 was a grant of a petition for other agency review; 1 was a stay pending review; and 1 was an order of attorneys’ fees.
- 248 of the March opinions were unpublished, including 207 full affirmances/appeal dismissals; 7 partial affirmances/partial reversals/vacaturs; 4 full reversals; 6 full vacaturs; 21 denials/dismissals of petitions to review BIA orders; 1 grant of a petition to review a BIA order; and 1 grant of a Certificate of Appealability.
Who was doing what on the Court?
Who was the busiest, in that they were on the most panels issuing opinions in March? (Judge Stewart). Who was the busiest writer, authoring the most attributed opinions? (Judge Higginson, followed closely by Judge Oldham). Who concurred the most in separate opinions? (Judges Ho and Oldham). Who authored the most dissenting opinions? (with 1 each, Chief Judge Richman and Judges Southwick, Haynes, Higginson, Willett, Ho, Oldham, and Higginbotham). How many opinions did the Court issue per curiam, with no author listed? (250, with 243 of those unpublished; but 2 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 Engelhardt, followed closely by Judges Richman, Smith, and 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 | 23 | 22 | 1 | 1 | 10 | 13 | |
| Jones | 54 | 54 | 3 | 8 | 46 | ||
| Smith | 41 | 40 | 4 | 10 | 31 | ||
| Stewart | 69 | 67 | 2 | 1 | 8 | 61 | |
| Elrod | 47 | 45 | 1 | 1 | 9 | 38 | |
| Southwick | 33 | 32 | 1 | 1 | 9 | 24 | |
| Haynes | 54 | 52 | 1 | 1 | 7 | 47 | |
| Graves | 34 | 32 | 1 | 5 | 29 | ||
| Higginson | 35 | 33 | 4 | 1 | 2 | 8 | 27 |
| Willett | 57 | 57 | 4 | 1 | 10 | 47 | |
| Ho | 30 | 30 | 1 | 6 | 24 | ||
| Duncan | 52 | 51 | 1 | 1 | 6 | 47 | |
| Engelhardt | 54 | 53 | 2 | 11 | 43 | ||
| Oldham | 50 | 47 | 2 | 1 | 3 | 9 | 41 |
| Wilson | 52 | 51 | 7 | 45 | |||
| Douglas | 30 | 30 | 1 | 2 | 28 | ||
| Dist. Ct. Judge sitting by designation | |||||||
| King | 27 | 27 | 1 | 26 | |||
| Jolly | 8 | 8 | 1 | 8 | |||
| Higginbotham | 29 | 28 | 2 | 1 | 1 | 6 | 23 |
| Davis | 18 | 18 | 18 | ||||
| Wiener | 43 | 43 | 2 | 1 | 8 | 35 | |
| Barksdale | 10 | 10 | 4 | 6 | |||
| Dennis | 25 | 23 | 2 | 5 | 20 | ||
| Clement | 16 | 16 | 2 | 14 | |||
| per curiam | 250 (2 with separate concurrence or dissent) | 7 | 243 |
Conclusions? Most decisions in March, as always, were unanimous, with only 11 dissenting opinions and 8 separate concurrences out of 284 opinions. By far the most decisions are per curiam, at 250, against 34 authored opinions. Among senior-status judges, Judge Wiener had the heaviest participation in panels, with Judges Higginbotham, King, and Dennis also participating in as many panels as some of the active-status judges. Meanwhile, among active-status judges, the lightest production in March was from Chief Judge Richman.
Wrap it all together, and an opinion in March 2023 was most likely to be an unpublished per curiam affirming a criminal decision from the Northern District of Texas, with Judges Stewart, Willett, and (in a three-way tie, Jones, Haynes, or Engelhardt) on the panel.
Take the Fifth 