Take the Fifth

At the end of each month, we tally various statistics from opinions released by the U.S. Court of Appeals for the Fifth Circuit. Then, corresponding to the traditional court term start date of October 1 (using the court term employed by the Supreme Court, though the Fifth Circuit itself compiles statistics on a July-to-June year), we aggregate those statistics to note interesting trends for the previous court year (October through September). This is our third annual compilation, aggregating statistics from October 2022 through September 2023. Notable Court changes during this past year involve Judge Dennis going on senior status, with Judge Douglas taking his seat on active status, beginning in January 2023. The Court continues with 16 active judges, with officially 9 senior-status judges (though only 8 of those participate in decision panels). Judge Costa’s active-status seat remains vacant, though Hon. Irma Carrillo Ramirez has been nominated to fill that spot since April 2023 and has been favorably reported by the Judiciary Committee to the full Senate.

The 2022-2023 statistics are based on 2,696 total opinions (down substantially from the 3,165 total opinions released by the Court in the 2021-2022 year, though up still from the 2,331 total opinions released by the Court in the 2020-2021 year). 2,097 were full affirmances (or appeal dismissals), which, when calculating in the 267 denials of petitions for BIA and other agency orders, resulted in a 87.69% affirmance rate across all appeal types (up slightly from last year’s 86.76% affirmance rate, and the prior year’s 85.63% affirmance rate); 81 were partial affirmances/partial reversals/vacaturs; 87 were full reversals; 7 were orders regarding mandamus (3 grants and 4 denials); 106 were full vacaturs; 7 were certifications of questions to state supreme courts; 15 were published orders denying en banc rehearing (up from 6 last year); 11 were grants of en banc rehearing (up from 4 last year); 255 were denials or dismissals of petitions for review of Board of Immigration Appeals decisions; 12 were grants of petitions to review BIA decisions; 12 were denials of petitions to review other agency decisions; 4 were grants of petitions to review other agency decisions; 3 were motion denials; 3 were grants of motions; and 1 was a partial grant/partial denial of a motion.

Just to highlight those en banc numbers–both the number of published orders denying en banc rehearing, which occurs when a member of the Court authors a separate dissent from or concurrence with the denial of rehearing to highlight a particular point involved in the rehearing vote, and in the number of grants of en banc rehearing–which are up substantially from last year even though total decisions rendered by the Court are down substantially from last year. Query whether this increased en banc action indicates that the Court is becoming more polarized? Or more aware of its role in driving the Supreme Court docket? (See, e.g., Greg Stohr, “Supreme Court Has Pile of Cases From Conservative 5th Circuit,” Bloomberg News, Sept. 28, 2023). Or just a quirk of hot-button issues moving through the pipeline? Interesting, and a trend worth watching.

Appeals by District Court (or other review origin)

• The most appellate decisions in 2022-23, as in the previous two years, came from the Northern District of Texas, with 652 decisions from the 5th Circuit on cases originating there. 603 were full affirmances or appeal dismissals, for a 92% affirmance rate; 12 were partial affirmances/partial reversals/vacaturs; 12 were full reversals; 1 was a denial of mandamus; 15 were full vacaturs; 2 were certifications to the state supreme court; 4 were published opinions denying en banc rehearing; 1 was an order of en banc rehearing; 1 was a grant of a certificate of appealability; and 1 was a partial grant/partial denial of a motion.
• The next-highest number of appeals originated in the Western District of Texas, with 582 total opinions from cases originating there. 517 were full affirmances or appeal dismissals, for an 89% affirmance rate; 13 were partial affirmances/partial reversals/vacaturs; 17 were full reversals; 1 was a grant of mandamus; 28 were full vacaturs; 3 were published orders denying en banc rehearing; 2 were orders of en banc rehearing; and 1 was a grant of a motion for stay pending appeal.
• Next was the Southern District of Texas, with 546 total opinions from cases originating there. 463 were full affirmances or appeal dismissals, for an 85% affirmance rate; 26 were partial affirmances/partial reversals/vacaturs; 22 were full reversals; 1 was a denial of mandamus; 26 were full vacaturs; 2 were certifications to the state supreme court; 3 were published orders denying en banc rehearing; 2 were orders of en banc rehearing; and 1 was a motion denial.
• Next highest was the Eastern District of Louisiana, with 142 total opinions from cases originating there. 105 were full affirmances or appeal dismissals, for a 74% affirmance rate; 10 were partial affirmances/partial reversals/vacaturs; 8 were full reversals; 2 were denials of mandamus; and 17 were full vacaturs.
• The Eastern District of Texas had the next highest total number of Fifth Circuit opinions, with a total of 136 opinions originating from there. 121 were full affirmances or appeal dismissals, for an 89% affirmance rate; 3 were partial affirmances/partial reversals/vacaturs; 5 were full reversals; 6 were full vacaturs; and 1 was a published order denying en banc rehearing.
• Next came the Western District of Louisiana, with 134 Fifth Circuit opinions originating from cases there. 107 were full affirmances or appeal dismissals, for an 80% affirmance rate; 8 were partial affirmances/partial reversals/vacaturs; 10 were full reversals; 8 were full vacaturs; and 1 was a certification to the state supreme court.
• The Southern District of Mississippi had the next highest number of Fifth Circuit opinions, with 109. 95 were full affirmances or appeal dismissals, for an 87% affirmance rate; 5 were partial affirmances/partial reversals/vacaturs; 6 were full reversals; 1 was a published order denying en banc rehearing; and 2 were orders of en banc rehearing.
• The next highest point-of-origin district was the Middle District of Louisiana, with 68 opinions. 52 were full affirmances or appeal dismissals, for a 76% affirmance rate; 2 were partial affirmances/partial reversals/vacaturs; 4 were full reversals; 1 was a partial grant of mandamus; 5 were full vacaturs; 2 were certifications to the state supreme court; and 2 were published denials of en banc rehearing.
• The lowest number of opinions originated from cases from the Northern District of Mississippi, with a total of 41 opinions originating there. 35 were full affirmances or appeal dismissals, for an 85% affirmance rate; 2 were partial affirmances/partial reversals/vacaturs; 2 were full reversals; 1 was a full vacatur; and 1 was an order of en banc rehearing.
• In addition to the review of District Court decisions, the Fifth Circuit also reviewed 4 decisions of the U.S. Tax Court in 2022-23, fully affirming all 5. The Court also engaged in 26 actions on agency decisions, denying petitions to review 12 of those, granting petitions to review 4, affirming 2, fully reversing 1, issuing mandamus in 1; entering a published order denying en banc rehearing of 1; ordering en banc rehearing in 3; and issuing 2 published orders granting motions.
• Additionally, the Fifth Circuit reviewed 267 petitions for review of Board of Immigration Appeals decisions, of which 255 were denied or dismissed and 12 were granted, for an “affirmance” rate of 96%.

What the appeals are about

• The largest number of appeals are of criminal conviction and/or sentencing issues. 1,315 resulted in full affirmances/appeal dismissals, for an affirmance rate of 94.2%; 19 were partial affirmances/partial reversals/vacaturs; 7 were full reversals; 50 were full vacaturs/remands; 3 were published orders denying en banc rehearing; 1 was an order of en banc rehearing; and 1 was a motion denial.
• In post-conviction relief cases, including state and federal habeas petitions, there were 72 full affirmances/appeal dismissals, for an 84.7% affirmance rate; 2 partial affirmances/partial reversals/vacaturs; 3 full reversals; 4 full vacaturs/remands; 1 published order denying an en banc rehearing; 1 order of en banc rehearing; 1 motion denial; and 1 motion grant.
• In immigration cases, there were 8 full affirmances from district court decisions; 1 partial affirmance/partial reversal/vacatur; 1 published denial of en banc rehearing; 255 dismissals/denials of petitions for review of BIA orders; 12 grants of petitions to review BIA orders; and 1 grant of a motion.
• In prisoner suits, there were 162 full affirmances/appeal dismissals, for an 88% affirmance rate; 5 partial affirmances/partial reversals/vacaturs; 6 full reversals; and 11 full vacaturs.
• In commercial – civil cases, there were 146 full affirmances/appeal dismissals, for a 76.4% affirmance rate; 11 partial affirmances/partial reversals/vacaturs; 18 full reversals; 2 denials of mandamus; 10 full vacaturs; and 4 certifications of questions to state supreme courts.
• In civil rights/constitutional claims (non-prisoner-suits), there were 134 full affirmances/appeal dismissals, for a 73.6% affirmance rate; 13 partial affirmances/partial reversals/vacaturs; 11 full reversals; 13 full vacaturs; 1 certification to a state supreme court; 6 published orders denying en banc rehearing; 2 orders of en banc rehearing; 1 denial of a petition for review of agency action; and 1 motion denial.
• In qualified immunity cases, there was 31 full affirmances, for a 47.7% affirmance rate; 11 partial affirmances/partial reversals/vacaturs; 14 full reversals; 5 full vacaturs; 3 published orders denying en banc rehearing; and 1 order of en banc rehearing.
• In employment/labor law cases, there were 96 full affirmances/appeal dismissals, for a 82% affirmance rate; 9 partial affirmances/partial reversals/vacaturs; 11 full reversals; 4 full vacaturs; 2 orders of en banc rehearing; and 5 denials of petitions for review of agency decisions.
• In personal injury/non-commercial tort cases, there were 37 full affirmances/appeal dismissals, for an 77.1% affirmance rate; 2 partial affirmances/partial reversals/vacaturs; 5 full reversals; 3 full vacaturs; and 1 certification of a question to a state supreme court.
• In social security cases, there were 13 full affirmances, for a 100% affirmance rate.
• In bankruptcy cases, there were 27 full affirmances, for a 87.1% affirmance rate; 1 partial affirmance/partial reversal/vacatur; 1 full reversal; and 2 full vacaturs.
• In abortion cases, there was 1 full affirmance, for a 33.33% affirmance rate; 1 partial affirmance/partial reversal/vacatur; and 1 grant of mandamus.
• In arbitration cases, there were 13 full affirmances, for a 100% affirmance rate; including 1 published order denying en banc rehearing.
• In tax law cases, there were 6 full affirmances, for a 100% affirmance rate.
• In healthcare law cases (this category includes ACA challenges and vaccine mandate or other COVID-19-related cases), there were 4 full affirmances, for a 100% affirmance rate; including 1 denial of mandamus.
• In voting/election law cases, there were 2 full affirmances, for a 25% affirmance rate; 1 partial affirmance/partial reversal/vacatur; 2 full reversals; 1 partial grant of mandamus; 1 full vacatur; and 1 order of en banc rehearing.
• In environmental law/toxic tort cases, there were 6 full affirmances, for a 50% affirmance rate; 1 partial affirmance/partial reversal/vacatur; 1 full reversal; 1 certification to a state supreme court; 1 order of en banc rehearing; and 2 denials of petitions for review of agency action.
• In products liability cases, there were 5 full affirmances, for a 71.4% affirmance rate; 1 partial affirmance/partial reversal/vacatur; and 1 full vacatur.
• In maritime law cases, there were 6 full affirmances, for a 100% affirmance rate.
• There were 4 attorney discipline appeals, resulting in 2 full affirmances and 2 partial affirmances/partial reversals/vacaturs.
• In administrative law cases, there were 3 full affirmances; 8 full reversals; 1 grant of mandamus; 1 full vacatur; 2 orders of en banc rehearing; 4 denials of petitions for review of agency actions; 4 grants of petitions for review of agency actions; and 1 motion grant.
• In class action cases, there were 5 full affirmances; 1 partial affirmance/partial reversal/vacatur; 1 full reversal; 1 denial of mandamus; and 1 full vacatur.

How much law is being made?

• Of the 2,696 opinions released by the 5th Circuit in 2022-23, 427 were designated for publication, for a 15.84% publication rate. 207 of those were full affirmances; 47 were partial affirmances/partial reversal/vacaturs; 52 were full reversals; 7 were mandamus orders (3 grants and 4 denials); 42 were full vacaturs; 6 were certifications to state supreme courts; 15 were published denials of en banc rehearing; 11 were orders granting en banc rehearing; 22 were denials of petitions for review of BIA orders; 3 were grants of petitions to review BIA orders; 8 were denials of petitions to review other agency decisions; 4 were grants of petitions to review other agency decisions; 2 were grants of motions; and 1 was a partial grant/partial denial of a motion. The full affirmance rate for published decisions was 48.5%.
• 2,274 of the 2022-23 opinions were unpublished, including 1,890 full affirmances/appeal dismissals; 34 partial affirmances/partial reversals/vacaturs; 35 full reversals; 64 full vacaturs; 1 certification of questions to a state supreme court; 233 denials/dismissals of petitions to review BIA orders; 9 grants of a petition to review BIA orders; 4 denials of petitions to review other agency decisions; 3 motion denials; and 1 grant of a motion. The full affirmance rate for unpublished decisions was 83.1%.

Who was doing what on the Court?

Who was the busiest, in that they were on the most panels issuing opinions in 2022-23? (Judge Engelhardt.) Who was the busiest writer, authoring the most attributed opinions? (Judge Higginson, for the third year in a row–which jibes with his publicly professed antipathy toward over-use of the “per curiam” attribution.) How many opinions did the Court issue per curiam, with no author listed? (2,294, with 2,230 of those unpublished.) Who participated in making the most law, participating in the most panels with published opinions? (Judge Higginson.) Who was the most “independent” judge, voting with the majority and without entering a separate concurring opinion or joining or authoring a dissent, in the lowest percentage of panels? (Chief Judge Richman, at 91.97%, followed by Judge Dennis, at 92.77%; the highest number of concurring opinions was Judge Ho for the second year in a row, with 13; the highest number of authored dissenting opinions for the second year in a row was Judge Oldham, at 14.) Which judges always voted with the majority opinion, 100% of the time? (The judges sitting by designation, and Judges King, Jolly, Davis, and Clement). We have all that below (senior-status judges in italics):

Judge	On panel	In majority	Author majority	Author concur	Author dissent/ dubitante	Published	Unpublished	Pure Majority percentage (no separate concurrence or dissent)
Richman	137	129	8	3	2	57	80	91.97%
Jones	455	447	23	2	4	74	381	97.80%
Smith	426	416	34		4	103	323	97.65%
Stewart	455	450	11		1	56	399	98.90%
Elrod	433	427	26	3	3	83	350	92.77%
Southwick	417	414	26	1	1	87	330	97.92%
Haynes	449	438	3	2	7	64	385	99.04%
Graves	419	401	19	1	12	76	343	97.10%
Higginson	416	406	50	3	6	105	311	95.47%
Willett	434	430	21	2	2	84	350	96.88%
Ho	435	423	13	13	10	68	367	98.17%
Duncan	471	463	21	1	3	74	397	98.62%
Engelhardt	481	479	14	2		79	401	94.25%
Oldham	447	428	16	10	14	79	368	98.09%
Wilson	447	439	21			91	352	99.17%
Douglas	273	269	9	1	1	37	236	93.51%
Dist. Ct. Judge sitting by designation	34	34	3			11	23	98.21%
King	284	284	8			36	248	100%
Jolly	96	96	9			8	88	100%
Higginbotham	363	361	23	4	3	73	290	100%
Davis	125	125	2			6	119	98.35%
Wiener	295	293	7	1	2	36	259	100%
Barksdale	129	128	4		1	20	109	98.98%
Dennis	249 (87 while active-status)	234 (80 while active-status)	10 (1 while active-status)	3 (1 while active-status)	10 (5 while active-status)	45 (14 while active-status)	204 (73 while active-status)	99.22%
Clement	139	139	13			45	94	100%
unattributed
per curiam			2,294 (35 not fully “for the court,” as they included a separate concurrence or dissent)			64	2.230

Conclusions? The 2022-23 statistics show that we can often over-emphasize the importance of the composition of the panel, as all of the judges voted fully with the majority more than 91% of the time, and most judges are above 97%. We also often over-emphasize the difficulty of gaining a reversal or vacatur on appeal when we look to the overall affirmance rates; depending on the type of case, that rate can come way down. The Fifth Circuit’s senior-status bench pulls a lot of weight, with four of the senior-status judges taking on more than 200 opinion panels each during the year.

Wrap it all together, and an opinion in the 2022-23 term was most likely to be an unpublished per curiam affirming a criminal decision from the Northern District of Texas, with Judges Engelhardt, Duncan, and Jones or Stewart on the panel.

Issues we were watching in 2022-23

There were two issues with opinion mechanics that we were keeping an eye on in the past year. One was use of the “per curiam” author-attribution, particularly where the opinion is not a unanimous opinion and arguably, therefore, not truly “for the court.” We kept an eye on that type of opinion and identified 35 such decisions in the past year. We will continue to tally those in 2023-24. The other is the Court’s employment of its rule regarding designation of opinions for publication, which was called out by Judge Smith last year in his dissent from a denial of en banc rehearing in Sambrano v. United Airlines, and again just recently this year in his dissent from a denial of en banc rehearing in U.S. v. Ramirez. For this past year, the percentage of opinions not designated for publication was 84.35%, down from 85.47% in the 2021-22 year but still above the unpublished percentage of 80.27% in 2020-21. We’ll continue to track this.