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 October 2023 statistics are based on 225 total opinions released by the Court (39 more than in the previous month).

Where the appeals are coming from

• Only the Southern District of Mississippi had a perfect affirmance rate in October 2023, with 13 full affirmances.
• The Northern District of Texas was the district with the most decisions originating from there, 63 total decisions. In the district, 58 of those were full affirmances or appeal dismissals; and 2 were partial affirmances/partial reversals/vacaturs; 2 were full reversals; and 1 was a full vacatur.
• From the Southern District of Texas, 39 decisions were full affirmances/appeal dismissals; 1 was a partial affirmance/partial reversal/vacatur; 1 was a full reversal; and 1 was a full vacatur.
• From decisions from the Western District of Texas there were 35 full affirmances/appeal dismissals; 3 partial affirmances/partial reversals/vacaturs; 5 full reversals; 1 grant of mandamus; 1 full vacatur; and 1 denial of a motion.
• From the Eastern District of Texas, there were 11 full affirmances/appeal dismissals; 1 full reversal; and 1 denial of a motion.
• From the Northern District of Mississippi, there were 2 full affirmances/appeal dismissals; and 1 certification to the state supreme court.
• From the Eastern District of Louisiana, there were 11 full affirmances/appeal dismissals; 2 partial affirmances/partial reversals/vacaturs; 1 full reversal; and 2 full vacaturs.
• From the Middle District of Louisiana, there were 4 full affirmances/appeal dismissals; and 1 full vacatur.
• From the Western District of Louisiana, there were 14 full affirmances/appeal dismissals; 2 partial affirmances/partial reversals/vacaturs; 1 full reversal; 1 full vacatur; and 1 certification to the state supreme court.
• From petitions for review of Board of Immigration Appeal decisions, there were 11 denials.
• From appeals of or petitions for review of other agency actions, there was 1 full affirmance; 1 denial of a petition for review; and 1 grant of a petition for review.

What the appeals are about, and who they benefit

• The largest number of appeals are of criminal conviction and/or sentencing issues. 123 resulted in full affirmances/appeal dismissals; and 1 was a full vacatur. 122 of the dispositions favored the prosecution, and 2 favored the defendant.
• In post-conviction relief cases, including state and federal habeas petitions, there were 5 full affirmances/appeal dismissals; and 1 denial of a motion. 4 favored the government, and 2 favored the petitioner.
• In immigration cases, there was 1 full affirmance; and 11 dismissals/denials of petitions for review of Board of Immigration Appeals orders. All 12 dispositions favored the government.
• In prisoner suits, there were 9 full affirmances/appeal dismissals; and 1 denial of a motion. All 10 dispositions favored the defendants in these suits brought by prisoners.
• In commercial – civil cases, there were 15 full affirmances/appeal dismissals; 1 partial affirmance/partial reversal/vacatur; 1 grant of mandamus; 1 full vacatur; and 2 certifications of questions to state supreme courts. 10 of the dispositions favored the plaintiff, and 10 favored the defendant.
• In civil rights/constitutional claims (non-prisoner-suits), there were 9 full affirmances/appeal dismissals; 2 partial affirmances/partial reversals/vacaturs; 2 full reversals; and 1 full vacatur. 13 of the dispositions favored the defendant, and 1 favored the plaintiff.
• In employment/labor law cases, there were 14 full affirmances/appeal dismissals; 3 partial affirmances/partial reversals/vacaturs; 3 full reversals; and 2 full vacaturs. 14 of the dispositions favored the employer defendant, and 8 favored the employee plaintiff.
• In qualified immunity cases, there were 2 full affirmances/appeal dismissals; 1 full vacatur. All 3 dispositions favored the plaintiff.
• In personal injury/non-commercial tort cases, there were 5 full affirmances. All 5 dispositions favored the defendant.
• In bankruptcy cases, there were 3 full affirmances; 1 partial affirmance/partial reversal/vacatur; and 1 full reversal. 2 dispositions favored the creditor, and 3 dispositions favored the debtor.
• In social security cases, there was 1 full affirmance. The 1 disposition favored the SSA.
• In maritime law cases, there was 1 full affirmance; and 1 partial affirmance/partial reversal/vacatur. 1 disposition favored the defendant, and 1 favored the plaintiff.
• In class action cases, there was 1 full vacatur. The 1 disposition favored the defendant.
• In environmental law/toxic tort cases, there were 3 full affirmances; and 1 full reversal. 3 of the dispositions favored the defendant, and 1 favored the plaintiff.
• In administrative law cases, there was 1 denial of a petition for review of agency action; and 1 grant of a petition for review. 1 disposition favored the agency, and 1 favored the petitioner.
• In voting/election law cases, there was 1 full affirmance. That disposition favored the plaintiff challenger.
• In arbitration cases, there was 1 full reversal. That 1 disposition favored the defendant.
• In tax law cases, there was 1 partial affirmance/partial reversal/vacatur. That 1 disposition favored the plaintiff.

How much law is being made?

• Of the 225 opinions released by the 5th Circuit in October 2023, 41 were designated for publication. 24 of those were full affirmances; 6 were partial affirmances/partial reversals/vacaturs; 3 were full reversals; 1 was a grant of mandamus; 3 were full vacaturs; 1 was a certification to a state supreme court; 1 was a denial of a petition for review of an agency order; 1 was a grant of a petition for review of an agency order; and 1 was a denial of a motion.
• 195 of the October opinions were unpublished, including 171 full affirmances/appeal dismissals; 3 partial affirmances/partial reversals/vacaturs; 3 full reversals; 4 full vacaturs; 1 certification to a state supreme court; 11 denials/dismissals of petitions to review BIA orders; 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 October? (Judge Southwick). Who was the busiest writer, authoring the most attributed opinions? (Judge Higginson). Who concurred the most in separate opinions? (Judges Southwick, Graves, and Ho, with 1 each). Who authored the most dissenting or dubitante opinions? (Judges Smith, Stewart, Ho, and Engelhardt, with 1 each). How many opinions did the Court issue per curiam, with no author listed? (194, with 188 of those unpublished). Who participated in making the most law, participating in the most panels with published opinions? (Judge 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	5	5	2			5
Jones	25	25				1	24
Smith	38	37	6		1	11	27
Stewart	48	47			1	6	42
Elrod	32	32	1			6	26
Southwick	56	56	4	1		17	39
Haynes	33	33				2	31
Graves	35	35		1		3	32
Higginson	48	48	9			13	35
Willett	41	41	2			12	29
Ho	31	30		1	1	6	25
Duncan	26	26	1			2	24
Engelhardt	32	31			1	5	27
Oldham	44	44	2			8	36
Wilson	43	43	2			3	40
Douglas	32	32				2	30
Dist. Ct. Judge sitting by designation	3	3	1			1	2
King	26	26				1	25
Jolly	7	7	1			1	6
Higginbotham	22	22					22
Davis	8	8					8
Wiener	20	20	2			4	16
Barksdale	4	4				1	3
Dennis	20	20				4	16
Clement	17	17	5			6	11
per curiam			194 (1 with separate concurrence, dissent, or dubitante)			6	188

Conclusions? Most decisions in October, as always, were unanimous, with only 4 dissenting opinions and 3 separate concurrences out of 225 opinions. Among senior-status judges, Judges King, Higginbotham, Wiener, and Dennis had the heaviest participation in panels, at or close to the level of many active-status judges. Meanwhile, among active-status judges, the lightest production in October was from Chief Judge Richman.

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