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. *-note that, while we did not post daily summaries for most of June 2023, we did track the statistics, so this month’s report is nevertheless complete.

The June 2023 statistics are based on 232 total opinions released by the Court (7 fewer than in the previous month).

Where the appeals are coming from

• Only the Southern District of Mississippi had a perfect affirmance rate in June 2023, with 9 full affirmances.
• The Northern District of Texas was the district with the most decisions originating from there, 64 total decisions. In the district, 60 of those were full affirmances or appeal dismissals; 2 were partial affirmances/partial reversals or vacaturs; and 2 were full vacaturs.
• From the Southern District of Texas, 45 decisions were full affirmances/appeal dismissals; 2 were partial affirmances/partial reversals/vacaturs; 2 were full reversals; and 3 were full vacaturs.
• From decisions from the Western District of Texas there were 33 full affirmances/appeal dismissals; 3 partial affirmances/partial reversals/vacaturs; 2 full reversals; 2 full vacaturs; and 1 order of en banc rehearing.
• From the Eastern District of Texas, there were 4 full affirmances/appeal dismissals; 2 partial affirmances/partial reversals/vacaturs; and 1 full vacatur.
• From the Northern District of Mississippi, there were 6 full affirmances/appeal dismissals; and 1 order of en banc rehearing.
• From the Eastern District of Louisiana, there were 12 full affirmances/appeal dismissals; 1 full reversal; and 3 full vacaturs.
• From the Middle District of Louisiana, there were 4 full affirmances/appeal dismissals; and 1 partial affirmance/partial reversal/vacatur.
• From the Western District of Louisiana, there were 6 full affirmances/appeal dismissals; 1 partial affirmance/partial reversal/vacatur; and 1 full vacatur.
• From petitions for review of Board of Immigration Appeal decisions, there were 19 denials.
• From petitions for review of other agency actions, there were 2 denials of petitions; and 1 order of en banc rehearing.
• And in a rare direct filing in the Circuit, there was 1 denial of a motion to file a successive habeas petition.

What the appeals are about

• The largest number of appeals are of criminal conviction and/or sentencing issues. 109resulted in full affirmances/appeal dismissals; 1 was a partial affimance/partial reversal/vacatur; 1 was a full reversal; and 5 were full vacaturs.
• In post-conviction relief cases, including state and federal habeas petitions, there were 6 full affirmances/appeal dismissals; 1 full vacatur; 1 order of en banc rehearing; and 1 denial of a motion for filing of a successive petition.
• In immigration cases, there were 2 full affirmances; and 19 dismissals/denials of petitions for review of Board of Immigration Appeals orders.
• In prisoner suits, there were 12 full affirmances/appeal dismissals; and 1 partial affirmance/partial reversal/vacatur.
• In commercial – civil cases, there were 8 full affirmances/appeal dismissals; 4 partial affirmances/partial reversals/vacaturs; 1 full reversal; and 1 full vacatur.
• In civil rights/constitutional claims (non-prisoner-suits), there were 14 full affirmances/appeal dismissals; 2 partial affirmances/partial reversals/vacaturs; 4 full vacaturs; and 1 order of en banc rehearing.
• In employment/labor law cases, there were 17 full affirmances/appeal dismissals; 2 partial affirmances/partial reversals/vacaturs; 1 full reversal; and 1 denial of a petition for review of agency action.
• In qualified immunity cases, there were 3 full affirmances/appeal dismissals.
• In personal injury/non-commercial tort cases, there were 4 full affirmances/appeal dismissals; and 1 full reversal.
• In bankruptcy cases, there was 1 full vacatur.
• In arbitration law cases, there was 1 full affirmance.
• In social security cases, there was 1 full affirmance.
• In voting/election law cases, there was 1 partial affirmance/partial reversal/vacatur.
• In environmental law/toxic tort cases, there was 1 full affirmance.
• In administrative law cases, there was 1 full affirmance/appeal dismissal; 1 full reversal; 1 order of en banc rehearing; and 1 denial of a petition for review of agency action.

How much law is being made?

• Of the 232 opinions released by the 5th Circuit in June 2023, 48 were designated for publication. 24 of those were full affirmances; 6 were partial affirmances/partial reversals/vacaturs; 3 were full reversals; 7 were full vacaturs; 3 were orders of en banc rehearing; 4 were denials/dismissals of petitions for review of BIA orders; and 1 was a denial of a petition for review of another agency order.
• 184 of the June opinions were unpublished, including 155 full affirmances/appeal dismissals; 5 partial affirmances/partial reversals/vacaturs; 2 full reversals; 5 full vacaturs; 15 denials/dismissals of petitions to review BIA orders; 1 denial of petition to review another agency action; and 1 denial of a motion.

Who was doing what on the Court?

Who was the busiest, in that they were on the most panels issuing opinions in June? (Judges Smith and Engelhardt, followed closely by Judges Jones, Graves, and Ho). Who was the busiest writer, authoring the most attributed opinions? (Judges Jones and Wilson, followed closely by Judge Higginson). Who concurred the most in separate opinions? (Judges Elrod and Oldham, with 1 each). Who authored the most dissenting or dubitante opinions? (Judges Dennis and Engelhardt, with 2 each). How many opinions did the Court issue per curiam, with no author listed? (180, with 177 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? (Judge Wilson). 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	11	10	3		1	4	7
Jones	39	38	6		1	9	30
Smith	40	40	4			10	30
Stewart	32	32				3	29
Elrod	32	32	2	1		9	23
Southwick	31	31	2			6	25
Haynes	28	28				5	23
Graves	39	38	2		1	4	35
Higginson	38	38	6			11	27
Willett	37	36	2		1	9	28
Ho	39	39	4			8	31
Duncan	34	34	2			5	29
Engelhardt	40	40	1			2	38
Oldham	30	28	1	1	2	5	25
Wilson	35	35	7			12	23
Douglas	29	29	2			4	25
Dist. Ct. Judge sitting by designation
King	19	19	1			3	16
Jolly	5	5	1			2	3
Higginbotham	34	34	2			5	29
Davis	11	11					11
Wiener	29	29	1			4	25
Barksdale	6	6	1			1	5
Dennis	23	21			2	3	20
Clement	26	26				8	18
per curiam			180 (3 with separate concurrence, dissent, or dubitante)			3	177

Conclusions? Most decisions in June, as always, were unanimous, with only 8 dissenting opinions and 2 separate concurrences out of 232 opinions. While most decisions were per curiam, at 183, there was a much higher proportion of authored opinions than in a typical month, at 49 authored opinions. Among senior-status judges, Judge Higginbotham had the heaviest participation in panels, with Judges Wiener, Clement, Dennis, and King also participating in as many panels as some of the active-status judges. Meanwhile, among active-status judges, the lightest production in June was from Chief Judge Richman.

Wrap it all together, and an opinion in June 2023 was most likely to be an unpublished per curiam affirming a criminal decision from the Northern District of Texas, with Judges Smith, Engelhardt, and either Judges Jones, Graves, or Ho on the panel.