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 September 2023 statistics are based on 186 total opinions released by the Court (94 fewer than in the previous month).
Where the appeals are coming from
- Only the Eastern District of Texas had a perfect affirmance rate in September 2023, with 6 full affirmances.
- The Northern District of Texas was the district with the most decisions originating from there, 60 total decisions. In the district, 58 of those were full affirmances or appeal dismissals; and 2 were full vacaturs.
- From the Southern District of Texas, 32 decisions were full affirmances/appeal dismissals; 1 was a partial affirmance/partial reversal/vacatur; 2 were full reversals; and 1 was a full vacatur.
- From decisions from the Western District of Texas there were 27full affirmances/appeal dismissals; 1 partial affirmance/partial reversal/vacatur; 2 full vacaturs; and 1 published denial of en banc rehearing.
- From the Southern District of Mississippi, there were 4 full affirmances/appeal dismissals; 2 full reversals; and 1 order of en banc rehearing.
- From the Northern District of Mississippi, there was 1 partial affirmance/partial reversal/vacatur.
- From the Eastern District of Louisiana, there were 6 full affirmances/appeal dismissals; 1 partial affirmance/partial reversal/vacatur; and 1 full vacatur.
- From the Middle District of Louisiana, there were 10 full affirmances/appeal dismissals; and 1 partial grant of mandamus.
- From the Western District of Louisiana, there were 8 full affirmances/appeal dismissals; 2 partial affirmances/partial reversals/vacaturs; 2 full vacaturs; and 1 certification of questions to the state supreme court.
- From petitions for review of Board of Immigration Appeal decisions, there were 12 denials.
- From appeals of or petitions for review of other agency actions, there was 1 denial of a petition for review.
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; 4 were full vacaturs; and 1 was a published denial of en banc rehearing.
- In post-conviction relief cases, including state and federal habeas petitions, there were 5 full affirmances/appeal dismissals.
- In immigration cases, there were 12 dismissals/denials of petitions for review of Board of Immigration Appeals orders.
- In prisoner suits, there were 13 full affirmances/appeal dismissals; and 1 full vacatur.
- In commercial – civil cases, there were 6 full affirmances/appeal dismissals; 1 partial affirmance/partial reversal/vacatur; 1 full vacatur; and 1 certification of questions to a state supreme court.
- In civil rights/constitutional claims (non-prisoner-suits), there were 5 full affirmances/appeal dismissals; 2 partial affirmances/partial reversals/vacaturs; 1 full reversal; and 1 full vacatur.
- In employment/labor law cases, there were 5 full affirmances/appeal dismissals; 1 partial affirmance/partial reversal/vacatur; and 2 full reversals.
- In qualified immunity cases, there were 2 full affirmances/appeal dismissals; 1 partial affirmance/partial reversal/vacatur; and 1 full vacatur.
- In personal injury/non-commercial tort cases, there were 4 full affirmances; and 1 partial affirmance/partial reversal/vacatur.
- In bankruptcy cases, there was 1 full affirmance.
- In social security cases, there was 1 full affirmance.
- In maritime law cases, there was 1 full affirmance.
- In class action cases, there was 1 full affirmance.
- In environmental law/toxic tort cases, there was 1 denial of a petition for review of an agency decision.
- In administrative law cases, there was 1 full reversal.
- In voting/election law cases, there was 1 full affirmance; 1 partial grant of mandamus, and 1 order for en banc rehearing.
How much law is being made?
- Of the 186 opinions released by the 5th Circuit in September 2023, 36 were designated for publication. 17 of those were full affirmances; 6 were partial affirmances/partial reversals/vacaturs; 4 were full reversals; 1 was a partial grant of mandamus; 2 were full vacaturs; 1 was a certification of questions to a state supreme court; 1 was a denial of en banc rehearing; 1 was an order of en banc rehearing; 2 were denials/dismissals of petitions for review of BIA orders; and 1 was a denial of a petition for review of another agency order.
- 150 of the September opinions were unpublished, including 134 full affirmances/appeal dismissals; 6 full vacaturs; and 10 denials/dismissals of petitions to review BIA orders.
Who was doing what on the Court?
Who was the busiest, in that they were on the most panels issuing opinions in September? (Judge Engelhardt). Who was the busiest writer, authoring the most attributed opinions? (Judge Higginson). Who concurred the most in separate opinions? (Judge Ho, with 3). Who authored the most dissenting or dubitante opinions? (Judges Smith, Dennis, Elrod, Haynes, Higginson, and Oldham, with 1 each). How many opinions did the Court issue per curiam, with no author listed? (152, with 147 of those unpublished). Who participated in making the most law, participating in the most panels with published opinions? (Judges Elrod 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 | 6 | 5 | 4 | 2 | |||
| Jones | 28 | 27 | 4 | 7 | 21 | ||
| Smith | 30 | 29 | 3 | 1 | 7 | 23 | |
| Stewart | 34 | 34 | 1 | 4 | 30 | ||
| Elrod | 28 | 27 | 2 | 1 | 10 | 18 | |
| Southwick | 31 | 31 | 1 | 7 | 24 | ||
| Haynes | 26 | 25 | 1 | 3 | 23 | ||
| Graves | 27 | 27 | 1 | 4 | 23 | ||
| Higginson | 40 | 39 | 7 | 1 | 1 | 10 | 30 |
| Willett | 29 | 29 | 1 | 7 | 22 | ||
| Ho | 22 | 21 | 1 | 3 | 7 | 15 | |
| Duncan | 35 | 34 | 3 | 8 | 27 | ||
| Engelhardt | 45 | 45 | 4 | 41 | |||
| Oldham | 35 | 33 | 2 | 1 | 6 | 29 | |
| Wilson | 35 | 34 | 3 | 8 | 27 | ||
| Douglas | 22 | 22 | 2 | 20 | |||
| Dist. Ct. Judge sitting by designation | 6 | 6 | 1 | 4 | 2 | ||
| King | 21 | 21 | 4 | 17 | |||
| Jolly | 9 | 9 | 1 | 8 | |||
| Higginbotham | 6 | 6 | 1 | 1 | 5 | ||
| Davis | 7 | 7 | 1 | 6 | |||
| Wiener | 12 | 12 | 1 | 12 | |||
| Barksdale | 9 | 9 | 9 | ||||
| Dennis | 14 | 13 | 1 | 3 | 11 | ||
| Clement | 10 | 10 | 1 | 6 | 4 | ||
| per curiam | 152 (0 with separate concurrence, dissent, or dubitante) | 5 | 147 |
Conclusions? Most decisions in September, as always, were unanimous, with only 6 dissenting opinions and 4 separate concurrences out of 186 opinions. Among senior-status judges, Judge King had the heaviest participation in panels. Meanwhile, among active-status judges, the lightest production in September was from Chief Judge Richman.
Wrap it all together, and an opinion in September 2023 was most likely to be an unpublished per curiam affirming a criminal decision from the Northern District of Texas, with Judges Engelhardt, Higginson, and either Duncan or Wilson on the panel.
Take the Fifth 