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 May 2023 statistics are based on 239 total opinions released by the Court (12 more than in the previous month).

Where the appeals are coming from

• All three Louisiana districts logged perfect affirmance rates in May 2023. The Eastern District of Louisiana had 13 full affirmances; the Middle District of Louisiana had 2 full affirmances; and the Western District of Louisiana had 11 full affirmances.
• The Western District of Texas was the district with the most decisions originating from there, 58 total decisions. In the district, 51 of those were affirmances or appeal dismissals; 3 were full reversals; 3 were full vacaturs; and 1 was an order denying a stay pending appeal.
• From the Northern District of Texas, with one fewer total opinions that the Western, 55 decisions were full affirmances/appeal dismissals; 1 was a partial affirmance/partial reversal/vacatur; and 1 was a full reversal.
• From decisions from the Southern District of Texas there were 36 full affirmances/appeal dismissals; 2 partial affirmances/partial reversals/vacaturs; 2 full vacaturs; and 1 certification of questions to the state supreme court.
• From the Eastern District of Texas, there were 13 full affirmances/appeal dismissals; and 2 full reversals.
• From the Northern District of Mississippi, there were 4 full affirmances/appeal dismissals; and 1 full reversal.
• From the Southern District of Mississippi, there were 5 full affirmances/appeal dismissals; 2 partial affirmances/partial reversals/vacaturs; and 1 full reversal.
• From the U.S. Tax Court, there were 2 full affirmances.
• From petitions for review of Board of Immigration Appeal decisions, there were 26 denials; and 2 grants.

What the appeals are about

• The largest number of appeals are of criminal conviction and/or sentencing issues. 127 resulted in full affirmances/appeal dismissals; and 3 were full vacaturs.
• In post-conviction relief cases, including state and federal habeas petitions, there were 4 full affirmances/appeal dismissals; and 1 full reversal.
• In immigration cases, there was 1 full affirmance; 26 dismissals/denials of petitions for review of Board of Immigration Appeals orders; and 2 grants of such petitions.
• In prisoner suits, there were 14 full affirmances/appeal dismissals; 1 partial affirmance/partial reversal/vacatur; 1 full reversal; and 1 full vacatur.
• In commercial – civil cases, there were 16 full affirmances/appeal dismissals; and 3 full reversals.
• In civil rights/constitutional claims (non-prisoner-suits), there were 14 full affirmances/appeal dismissals; 2 partial affirmances/partial reversals/vacaturs; and 2 denial of stay pending appeal.
• In employment/labor law cases, there were 4 full affirmances/appeal dismissals; and 1 full vacatur.
• In qualified immunity cases, there were 3 full affirmances/appeal dismissals; 2 partial affirmances/partial reversals/vacaturs; and 2 full reversals.
• In personal injury/non-commercial tort cases, there was 1 certification of questions to the state supreme court.
• In bankruptcy cases, there was 1 full affirmance.
• In arbitration law cases, there were 2 full affirmances.
• In tax law cases, there were 2 full affirmances.
• In social security cases, there was 1 full affirmance.
• In products liability cases, there were 2 full affirmances.
• In voting/election law cases, there was 1 full reversal.
• In attorney discipline cases, there was 1 full affirmance.

How much law is being made?

• Of the 239 opinions released by the 5th Circuit in May 2023, 25 were designated for publication. 13 of those were full affirmances; 4 were partial affirmances/partial reversals/vacaturs; 3 were full reversals; 1 was a full vacatur; 1 was a certification of questions to a state supreme court; 2 were denials of petitions for review of BIA orders; and 1 was a grant of a petition for review of a BIA order.
• 214 of the May opinions were unpublished, including 179 full affirmances/appeal dismissals; 1 partial affirmance/partial reversal/vacatur; 5 full reversals; 4 full vacaturs; 24 denials/dismissals of petitions to review BIA orders; 1 grant of a petition to review a BIA order; and 1 denial of a motion for stay pending appeal.

Who was doing what on the Court?

Who was the busiest, in that they were on the most panels issuing opinions in May? (Judge Ho). Who was the busiest writer, authoring the most attributed opinions? (Judge Higginson). Who concurred the most in separate opinions? (Judges Willett and Oldham, with 1 each). Who authored the most dissenting or dubitante opinions? (Judge Graves, with two). How many opinions did the Court issue per curiam, with no author listed? (212, with 210 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 Graves and Higginson). 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	15	1		1	6	10
Jones	36	36					36
Smith	35	34	1		1	4	31
Stewart	37	37	1			2	35
Elrod	38	38	4			6	32
Southwick	39	39	1			2	37
Haynes	35	35					35
Graves	43	41	3		2	7	36
Higginson	38	38	6			7	31
Willett	43	43	1			4	39
Ho	48	47	1	1	1	5	43
Duncan	34	33			1	3	22
Engelhardt	25	25	2			3	22
Oldham	38	37	1	1	1	3	35
Wilson	37	37	1			5	32
Douglas	37	37				1	36
Dist. Ct. Judge sitting by designation
King	29	29	2			4	25
Jolly	12	12	2				12
Higginbotham	36	36	1			3	33
Davis	9	9					9
Wiener	17	17				1	16
Barksdale	11	11					11
Dennis	13	12		1	1	3	10
Clement	13	13	1			6	7
per curiam			212 (3 with separate concurrence, dissent, or dubitante)			2	210

Conclusions? Most decisions in May, as always, were unanimous, with only 8 dissenting opinions and 3 separate concurrences out of 239 opinions. By far the most decisions are per curiam, at 212, against 27 authored opinions. Among senior-status judges, Judge Higginbotham had the heaviest participation in panels, with Judge King also participating in as many panels as some of the active-status judges. Meanwhile, among active-status judges, the lightest production in May was from Chief Judge Richman.

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