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 April 2023 statistics are based on 227 total opinions released by the Court (57 fewer than in the previous month).
Where the appeals are coming from
- The Southern District of Mississippi, with 11 full affirmances; and the Northern District of Mississippi, with 3 full affirmances, were the Fifth Circuit districts with perfect affirmance rates in April 2023.
- The Western District of Texas was the district with the most decisions originating from there, 55 total decisions. In the district, 49 of those were affirmances or appeal dismissals; 1 was a partial affirmance/partial reversal or vacatur; 4 were full reversals; and 1 was a partial vacatur.
- From the Southern District of Texas, 47 decisions were full affirmances/appeal dismissals; 2 were partial affirmances/partial reversals/vacaturs; and 2 were full reversals.
- From decisions from the Northern District of Texas there were 36 full affirmances/appeal dismissals; 1 partial affirmance/partial reversal/vacatur; 1 full vacatur; and 1 partial grant/partial denial of a motion for stay pending review.
- From the Eastern District of Texas, there were 12 full affirmances/appeal dismissals; and 1 full vacatur.
- From the Eastern District of Louisiana, there were 11 full affirmances/appeal dismissals; 3 full reversals; and 3 full vacaturs.
- From the Western District of Louisiana, there were 8 full affirmances/appeal dismissals; 2 full reversals; and 1 full vacatur.
- From the Middle District of Louisiana, there were 3 full affirmances/appeal dismissals; and 1 full reversal.
- From the U.S. Tax Court, there was 1 appeal dismissal.
- From petitions for review of Board of Immigration Appeal decisions, there were 19 denials; and 1 grant.
- From petitions for review of other agency decisions, there were 2 denials of petitions.
What the appeals are about
- The largest number of appeals are of criminal conviction and/or sentencing issues. 106 resulted in full affirmances/appeal dismissals; 1 was a partial affirmance/partial reversal/vacatur; and 2 were full vacaturs.
- In post-conviction relief cases, including state and federal habeas petitions, there were 7 full affirmances/appeal dismissals; 2 full reversals; and 1 full vacatur.
- In immigration cases, there were 2 full affirmances; 19 dismissals/denials of petitions for review of Board of Immigration Appeals orders; and 1 grant of such a petition.
- In prisoner suits, there were 19 full affirmances/appeal dismissals; 1 full reversal; and 1 full vacatur.
- In commercial – civil cases, there were 10 full affirmances/appeal dismissals; 1 partial affirmance/partial reversal/vacatur; 2 full reversals; and 2 full vacaturs.
- In civil rights/constitutional claims (non-prisoner-suits), there were 13 full affirmances/appeal dismissals; 1 partial affirmance/partial reversal/vacatur; and 2 full reversals.
- In employment/labor law cases, there were 7 full affirmances/appeal dismissals; 2 full reversals; and 2 denials of petitions for review of agency orders.
- In qualified immunity cases, there were 4 full affirmances/appeal dismissals; and 3 full reversals.
- In personal injury/non-commercial tort cases, there were 5 full affirmances/appeal dismissals; 1 partial affirmance/partial reversal/vacatur; and 1 full reversal..
- In bankruptcy cases, there were 2 full affirmances.
- In environmental law/toxic tort cases, there was 1 full affirmance.
- In abortion law cases, there was 1 partial grant/partial denial of a motion for stay pending review.
- In administrative law cases, there was 1 full vacatur.
- In healthcare law cases, there was 1 full affirmance/appeal dismissal.
- In arbitration law cases, there was 1 full affirmance.
- In tax law cases, there were 2 full affirmances.
- In social security cases, there were 2 full affirmances.
- In products liability cases, there was 1 full affirmance.
How much law is being made?
- Of the 227 opinions released by the 5th Circuit in April 2023, 30 were designated for publication. 17 of those were full affirmances; 1 was a partial affirmance/partial reversal/vacatur; 4 were full reversals; 4 were full vacaturs; 2 were denials of petitions for review of BIA orders; 2 were orders denying petitions for other agency review; and 1 was a partial grant/partial denial of stay pending review.
- 197 of the April opinions were unpublished, including 164 full affirmances/appeal dismissals; 3 partial affirmances/partial reversals/vacaturs; 8 full reversals; 3 full vacaturs; 17 denials/dismissals of petitions to review BIA orders; and 1 grant of a petition to review a BIA order.
Who was doing what on the Court?
Who was the busiest, in that they were on the most panels issuing opinions in April? (Judge Oldham). Who was the busiest writer, authoring the most attributed opinions? (Judges Higginson and Higginbotham). Who concurred the most in separate opinions? (Judge Higginbotham was the only concurrer in April). Who authored the most dissenting or dubitante opinions? (Judge Oldham, with two). How many opinions did the Court issue per curiam, with no author listed? (198, with 193 of those unpublished; but 3 of those not “true” per curia because they featured a separate concurrence, dissent, or dubitante opinion). Who participated in making the most law, participating in the most panels with published opinions? (Judges Smith, Engelhardt, and Higginbotham). 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 | 16 | 16 | 1 | 3 | 13 | ||
| Jones | 52 | 51 | 1 | 1 | 4 | 48 | |
| Smith | 25 | 25 | 3 | 10 | 15 | ||
| Stewart | 33 | 33 | 1 | 2 | 31 | ||
| Elrod | 30 | 30 | 1 | 1 | 29 | ||
| Southwick | 25 | 25 | 3 | 22 | |||
| Haynes | 42 | 42 | 4 | 38 | |||
| Graves | 25 | 25 | 3 | 4 | 21 | ||
| Higginson | 29 | 29 | 5 | 8 | 21 | ||
| Willett | 23 | 23 | 23 | ||||
| Ho | 36 | 36 | 2 | 2 | 34 | ||
| Duncan | 41 | 41 | 1 | 2 | 39 | ||
| Engelhardt | 42 | 42 | 1 | 10 | 32 | ||
| Oldham | 54 | 52 | 2 | 5 | 49 | ||
| Wilson | 39 | 39 | 8 | 31 | |||
| Douglas | 18 | 18 | 1 | 17 | |||
| Dist. Ct. Judge sitting by designation | |||||||
| King | 24 | 24 | 1 | 23 | |||
| Jolly | 10 | 10 | 1 | 1 | 9 | ||
| Higginbotham | 32 | 31 | 3 | 1 | 1 | 10 | 22 |
| Davis | 7 | 7 | 1 | 6 | |||
| Wiener | 29 | 29 | 2 | 6 | 23 | ||
| Barksdale | 8 | 8 | 1 | 7 | |||
| Dennis | 20 | 20 | 2 | 3 | 17 | ||
| Clement | 11 | 11 | 2 | 3 | 8 | ||
| per curiam | 198 (3 with separate concurrence, dissent, or dubitante) | 5 | 193 |
Conclusions? Most decisions in April, as always, were unanimous, with only 3 dissenting or dubitante opinions and 1 separate concurrence out of 227 opinions. By far the most decisions are per curiam, at 198, against 29 authored opinions. Among senior-status judges, Judge Higginbotham had the heaviest participation in panels, with Judges Wiener, 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 April was from Chief Judge Richman.
Wrap it all together, and an opinion in April 2023 was most likely to be an unpublished per curiam affirming a criminal decision from the Western District of Texas, with Judges Oldham, Jones, and (in a two-way tie, Haynes or Engelhardt) on the panel.
Take the Fifth 