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 July 2023 statistics are based on 216 total opinions released by the Court (16 fewer than in the previous month).
Where the appeals are coming from
- Only the Southern District of Mississippi had a perfect affirmance rate in July 2023, with 7 full affirmances.
- The Northern District of Texas was the district with the most decisions originating from there, 56 total decisions. In the district, 51 of those were full affirmances or appeal dismissals; 2 were partial affirmances/partial reversals or vacaturs; 1 was a full reversal; and 2 were certifications of questions to the state supreme court.
- From the Southern District of Texas, 34 decisions were full affirmances/appeal dismissals; 3 were partial affirmances/partial reversals/vacaturs; 4 were full reversals; 2 were full vacaturs; 1 was a certification of a question to the state supreme court; and 1 was a published denial of rehearing en banc.
- From decisions from the Western District of Texas there were 45 full affirmances/appeal dismissals; 2 full reversals; and 1 full vacatur.
- From the Eastern District of Texas, there were 13 full affirmances/appeal dismissals; and 1 full reversal.
- From the Northern District of Mississippi, there was 1 full affirmance/appeal dismissal; and 1 full vacatur.
- From the Eastern District of Louisiana, there were 9 full affirmances/appeal dismissals; 1 partial affirmance/partial reversal/vacatur; and 2 full vacaturs.
- From the Middle District of Louisiana, there were 5 full affirmances/appeal dismissals; 1 full reversal; and 1 full vacatur.
- From the Western District of Louisiana, there were 8 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 12 denials and 1 grant.
- From petitions for review of other agency actions, there was 1 denial of a petition; and 1 order of en banc rehearing.
What the appeals are about
- The largest number of appeals are of criminal conviction and/or sentencing issues. 105 resulted in full affirmances/appeal dismissals; 3 were partial affimances/partial reversals/vacaturs; 2 were full reversals; and 4 were full vacaturs.
- In post-conviction relief cases, including state and federal habeas petitions, there were 12 full affirmances/appeal dismissals.
- In immigration cases, there were 12 dismissals/denials of petitions for review of Board of Immigration Appeals orders, and 1 grant of such a petition.
- In prisoner suits, there were 9 full affirmances/appeal dismissals; 1 partial affirmance/partial reversal/vacatur; and 2 full vacaturs.
- In commercial – civil cases, there were 8 full affirmances/appeal dismissals; 1 partial affirmance/partial reversal/vacatur; and 3 certifications of questions to state supreme courts.
- In civil rights/constitutional claims (non-prisoner-suits), there were 11 full affirmances/appeal dismissals; 2 full reversals; 1 full vacatur; and 1 published denial of en banc rehearing.
- In employment/labor law cases, there were 9 full affirmances/appeal dismissals; 1 full reversal; and 1 order of en banc rehearing.
- 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 were 3 full affirmances/appeal dismissals; and 1 full reversal.
- In bankruptcy cases, there were 5 full affirmances/appeal dismissals.
- In arbitration law cases, there were 2 full affirmances.
- In social security cases, there was 1 full affirmance.
- In healthcare law cases, there was 1 full affirmance.
- In products liability cases, there was 1 full affirmance; and 1 full vacatur.
- In maritime law cases, there was 1 full affirmance/appeal dismissal.
- In administrative law cases, there was 1 full affirmance; 1 full reversal; and 1 denial of a petition for review of agency action.
How much law is being made?
- Of the 216 opinions released by the 5th Circuit in July 2023, 46 were designated for publication. 28 of those were full affirmances; 2 were partial affirmances/partial reversals/vacaturs; 8 were full reversals; 2 were full vacaturs; 2 were certifications of questions to state supreme courts; 1 was a denial of en banc rehearing; 1 was an order of en banc rehearing; 1 was a denial/dismissal of a petition for review of a BIA order; and 1 was a denial of a petition for review of another agency order.
- 170 of the July opinions were unpublished, including 145 full affirmances/appeal dismissals; 5 partial affirmances/partial reversals/vacaturs; 1 full reversal; 6 full vacaturs; 1 certification of a question to a state supreme court; 11 denials/dismissals of petitions to review BIA orders; and 1 grant of a petition for review of 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 July? (Judge Southwick). Who was the busiest writer, authoring the most attributed opinions? (Judge Graves, followed closely by Judges Elrod, Southwick, and Higginson). Who concurred the most in separate opinions? (Judge Oldham, with 2). Who authored the most dissenting or dubitante opinions? (Judge Graves, with 4). How many opinions did the Court issue per curiam, with no author listed? (170, with 168 of those unpublished; but 6 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 Higginbotham, Smith, and Southwick). 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 | 9 | 9 | 5 | 4 | |||
| Jones | 27 | 27 | 1 | 6 | 21 | ||
| Smith | 27 | 27 | 3 | 12 | 15 | ||
| Stewart | 40 | 38 | 2 | 6 | 34 | ||
| Elrod | 43 | 41 | 4 | 1 | 9 | 34 | |
| Southwick | 50 | 50 | 5 | 12 | 38 | ||
| Haynes | 42 | 39 | 1 | 7 | 35 | ||
| Graves | 36 | 31 | 2 | 4 | 10 | 26 | |
| Higginson | 33 | 32 | 5 | 8 | 25 | ||
| Willett | 36 | 35 | 2 | 8 | 28 | ||
| Ho | 33 | 32 | 1 | 1 | 2 | 7 | 26 |
| Duncan | 29 | 29 | 4 | 7 | 22 | ||
| Engelhardt | 42 | 42 | 2 | 1 | 10 | 32 | |
| Oldham | 30 | 29 | 1 | 2 | 1 | 6 | 24 |
| Wilson | 20 | 19 | 1 | 6 | 14 | ||
| Douglas | 23 | 21 | 3 | 1 | 10 | 13 | |
| Dist. Ct. Judge sitting by designation | 8 | 8 | 2 | 6 | |||
| King | 25 | 25 | 1 | 4 | 21 | ||
| Jolly | 8 | 8 | 8 | ||||
| Higginbotham | 36 | 36 | 3 | 1 | 12 | 24 | |
| Davis | 7 | 7 | 7 | ||||
| Wiener | 29 | 28 | 1 | 7 | 22 | ||
| Barksdale | 12 | 11 | 1 | 2 | 10 | ||
| Dennis | 20 | 20 | 1 | 3 | 17 | ||
| Clement | 6 | 6 | 2 | 2 | 4 | ||
| per curiam | 170 (6 with separate concurrence, dissent, or dubitante) | 2 | 168 |
Conclusions? Most decisions in July, as always, were unanimous, with only 11 dissenting opinions and 7 separate concurrences out of 216 opinions. While most decisions were per curiam, at 170, there was a higher proportion of authored opinions than in a typical month, at 46 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 July was from Chief Judge Richman.
Wrap it all together, and an opinion in July 2023 was most likely to be an unpublished per curiam affirming a criminal decision from the Northern District of Texas, with Judges Southwick, Elrod, and either Judges Haynes or Engelhardt on the panel.
Take the Fifth 