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 August 2023 statistics are based on 280 total opinions released by the Court (64 more than in the previous month).

Where the appeals are coming from

• Only the Northern District of Mississippi had a perfect affirmance rate in August 2023, with 3 full affirmances.
• The Northern District of Texas was the district with the most decisions originating from there, 69 total decisions. In the district, 60 of those were full affirmances or appeal dismissals; 1 was a partial affirmance/partial reversal or vacatur; 4 were full reversals; 3 were full vacaturs; and 1 was a published denial of en banc rehearing.
• From the Southern District of Texas, 48 decisions were full affirmances/appeal dismissals; 3 were partial affirmances/partial reversals/vacaturs; 3 were full reversals; and 2 were full vacaturs.
• From decisions from the Western District of Texas there were 40 full affirmances/appeal dismissals; 1 partial affirmance/partial reversal/vacatur; 2 full reversals; 7 full vacaturs; and 1 order of en banc rehearing.
• From the Eastern District of Texas, there were 11 full affirmances/appeal dismissals; 1 partial affirmance/partial reversal/vacatur; 1 full reversal; and 1 published denial of en banc rehearing.
• From the Southern District of Mississippi, there were 10 full affirmances/appeal dismissals; 2 partial affirmances/partial reversals/vacaturs; 3 full reversals; 1 published denial of en banc rehearing; and 1 order of en banc rehearing.
• From the Eastern District of Louisiana, there were 14 full affirmances/appeal dismissals; 3 partial affirmances/partial reversals/vacaturs; 1 full reversal; 1 denial of mandamus; and 2 full vacaturs.
• From the Middle District of Louisiana, there were 4 full affirmances/appeal dismissals; 1 partial affirmance/partial reversal/vacatur; 1 full reversal; and 2 full vacaturs.
• From the Western District of Louisiana, there were 8 full affirmances/appeal dismissals; 1 partial affirmance/partial reversal/vacatur; and 3 full reversals.
• From the U.S. Tax Court, there was 1 full affirmance.
• From petitions for review of Board of Immigration Appeal decisions, there were 23 denials and 1 grant.
• From appeals of or petitions for review of other agency actions, there was 1 full affirmance; 1 full reversal; 1 denial of a petition for review; and 1 grant of a petition for review.

What the appeals are about

• The largest number of appeals are of criminal conviction and/or sentencing issues. 118 resulted in full affirmances/appeal dismissals; 3 were partial affimances/partial reversals/vacaturs; 1 was a full reversal; 7 were full vacaturs; and 1 was an order of en banc rehearing.
• In post-conviction relief cases, including state and federal habeas petitions, there were 5 full affirmances/appeal dismissals; 1 partial affirmance/partial reversal/vacatur; and 1 published denial of en banc rehearing.
• In immigration cases, there were 2 full affirmances; 1 published denial of rehearing en banc; 23 dismissals/denials of petitions for review of Board of Immigration Appeals orders, and 1 grant of such a petition.
• In prisoner suits, there were 14 full affirmances/appeal dismissals; 1 full reversal; and 3 full vacaturs.
• In commercial – civil cases, there were 17 full affirmances/appeal dismissals; 2 partial affirmances/partial reversals/vacaturs; 5 full reversals; and 1 full vacatur.
• In civil rights/constitutional claims (non-prisoner-suits), there were 17 full affirmances/appeal dismissals; 2 partial affirmances/partial reversals/vacaturs; 3 full reversals; 2 full vacaturs; 1 published denial of en banc rehearing; and 1 order of en banc rehearing.
• In employment/labor law cases, there were 9 full affirmances/appeal dismissals; 1 partial affirmance/partial reversal/vacatur; 1 full reversal; and 1 denial of a petition for review of an agency ruling.
• In qualified immunity cases, there were 7 full affirmances/appeal dismissals; 2 partial affirmances/partial reversals/vacaturs; 4 full reversals; and 1 full vacatur.
• In personal injury/non-commercial tort cases, there was 1 full reversal; and 2 full vacaturs.
• In bankruptcy cases, there were 3 full affirmances/appeal dismissals; and 1 full reversal.
• In arbitration law cases, there was 1 full affirmance.
• In social security cases, there was 1 full affirmance.
• In abortion law cases, there was 1 full affirmance; and 1 partial affirmance/partial reversal/vacatur.
• In products liability cases, there was 1 full affirmance.
• In maritime law cases, there was 1 full affirmance.
• In class action cases, there was 1 full affirmance; and 1 denial of mandamus.
• In environmental law/toxic tort cases, there was 1 partial affirmance/partial reversal/vacatur.
• In tax law cases, there was 1 full affirmance.
• In attorney discipline cases, there was 1 full affirmance.
• In administrative law cases, there were 2 full reversals; and 1 grant of a petition for review of agency action.

How much law is being made?

• Of the 280 opinions released by the 5th Circuit in August 2023, 71 were designated for publication, far more than most months. 30 of those were full affirmances; 9 were partial affirmances/partial reversals/vacaturs; 14 were full reversals; 1 was a denial of mandamus; 10 were full vacaturs; 3 were denials of en banc rehearing; 2 were orders of en banc rehearing; 1 was a denial/dismissal of a petition for review of a BIA order; and 1 was a grant of a petition for review of another agency order.
• 209 of the August opinions were unpublished, including 170 full affirmances/appeal dismissals; 4 partial affirmances/partial reversals/vacaturs; 5 full reversals; 6 full vacaturs; 22 denials/dismissals of petitions to review BIA orders; 1 grant of a petition for review of a BIA order; and 1 denial of a petition fore review of another agency order.

Who was doing what on the Court?

Who was the busiest, in that they were on the most panels issuing opinions in August? (Judges Elrod, Wilson, and Douglas, followed closely by Judge Higginson). Who was the busiest writer, authoring the most attributed opinions? (Judge Smith). Who concurred the most in separate opinions? (Judges Jones, Higginson, Willett, and Ho, with 1 each). Who authored the most dissenting or dubitante opinions? (Judge Ho, with 5). How many opinions did the Court issue per curiam, with no author listed? (214, with 205 of those unpublished; but 2 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 Smith). 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	15	15				6	9
Jones	49	48	3	1	1	10	39
Smith	44	41	8		2	21	23
Stewart	40	40	2			7	33
Elrod	53	52	6			18	35
Southwick	39	38	2		1	12	27
Haynes	39	39	1			7	32
Graves	48	47	4		1	14	34
Higginson	52	51	4	1	1	20	32
Willett	48	48	6	1		19	29
Ho	33	28	2	1	5	10	23
Duncan	40	40	1			6	34
Engelhardt	45	45	1			10	35
Oldham	42	41	2		1	9	33
Wilson	53	53	5			14	39
Douglas	53	52	3		1	13	40
Dist. Ct. Judge sitting by designation	20	20	2			5	15
King	32	32				7	25
Jolly	7	7					7
Higginbotham	30	30	4			11	19
Davis	6	6					6
Wiener	35	35	1			7	28
Barksdale	15	15	2			4	11
Dennis	15	15	3			6	9
Clement	19	19	2			6	13
per curiam			214 (2 with separate concurrence, dissent, or dubitante)			9	205

Conclusions? Most decisions in August, as always, were unanimous, with only 13 dissenting opinions and 4 separate concurrences out of 280 opinions. While most decisions were per curiam, at 214, there was a higher proportion of authored opinions than in a typical month, at 66 authored opinions. Among senior-status judges, Judge Wiener had the heaviest participation in panels, with Judges Higginbotham and King also participating in as many panels as some of the active-status judges. Meanwhile, among active-status judges, the lightest production in August was from Chief Judge Richman.

Wrap it all together, and an opinion in August 2023 was most likely to be an unpublished per curiam affirming a criminal decision from the Northern District of Texas, with Judges Elrod, Wilson, and Douglas on the panel.