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 November 2023 statistics are based on 213 total opinions released by the Court (12 fewer than in the previous month).

Where the appeals are coming from

• Only the Northern District of Mississippi had a perfect affirmance rate in November 2023, with 4 full affirmances.
• The Northern District of Texas was the district with the most decisions originating from there, 58 total decisions. In the district, 53 of those were full affirmances or appeal dismissals; 2 were partial affirmances/partial reversals/vacaturs; 1 was a full reversal; and 2 were full vacaturs.
• From the Western District of Texas, 41 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 Southern District of Texas there were 31 full affirmances/appeal dismissals; 1 partial affirmance/partial reversal/vacatur; 2 full reversals; 2 full vacaturs; and 1 order of en banc rehearing.
• From the Eastern District of Texas, there were 12 full affirmances/appeal dismissals; 1 full reversal; 1 grant of a writ of mandamus; and 1 full vacatur.
• From the Southern District of Mississippi, there were 4 full affirmances/appeal dismissals; and 1 full vacatur.
• From the Eastern District of Louisiana, there were 6 full affirmances/appeal dismissals; and 2 partial affirmances/partial reversals/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 16 full affirmances/appeal dismissals; 1 full vacatur; and 1 certification to the state supreme court.
• From the U.S. Tax Court, there was 1 full affirmance.
• From petitions for review of Board of Immigration Appeal decisions, there were 11 denials; and 1 grant.
• From appeals of or petitions for review of other agency actions, there was 1 full vacatur; 1 denial of a petition for review; 2 grants of petitions for review; and 1 transfer of venue to the D.C. Circuit.

What the appeals are about, and who they benefit

• The largest number of appeals are of criminal conviction and/or sentencing issues. 106 resulted in full affirmances/appeal dismissals; 1 was a partial affirmance/partial reversal/vacatur; and 2 were full vacaturs. 105 of the dispositions favored the prosecution, and 4 favored the defendant.
• In post-conviction relief cases, including state and federal habeas petitions, there were 2 full affirmances/appeal dismissals. Both favored the government.
• In immigration cases, there were 11 dismissals/denials of petitions for review of Board of Immigration Appeals orders; and 1 grant of such a petition. 11 dispositions favored the government; and 1 favored the petitioner.
• In prisoner suits, there were 16 full affirmances/appeal dismissals; 1 partial affirmance/partial reversal/vacatur; 1 full reversal; and 2 full vacaturs. 17 dispositions favored the government defendants; and 3 dispositions favored the plaintiff prisoners.
• In commercial – civil cases, there were 9 full affirmances/appeal dismissals; 1 full reversal; 1 grant of mandamus; 1 full vacatur; and 1 certification of questions to a state supreme court. 9 of the dispositions favored the defendant, and 4 favored the plaintiff.
• In civil rights/constitutional claims (non-prisoner-suits), there were 9 full affirmances/appeal dismissals; 1 partial affirmance/partial reversal/vacatur; 1 full reversal; and 1 full vacatur. 11 of the dispositions favored the defendant, and 1 favored the plaintiff.
• In employment/labor law cases, there were 10 full affirmances/appeal dismissals; 1 denial of a petition for review of an agency decision; and 1 grant of a petition for review of an agency decision. 11 of the dispositions favored an employer, and 1 favored the employees.
• In qualified immunity cases, there were 5 full affirmances/appeal dismissals; 2 partial affirmances/partial reversals/vacaturs; and 1 full reversal. 5 dispositions favored the government defendant; and 3 favored the plaintiffs.
• In personal injury/non-commercial tort cases, there were 5 full affirmances. All 5 dispositions favored the defendant.
• In bankruptcy cases, there were 2 full affirmances; and 1 full vacatur. 1 disposition favored the creditor, and 2 dispositions favored the debtor.
• In social security cases, there were 2 full affirmances. Both dispositions favored the SSA.
• In environmental law/toxic tort cases, there was 1 full affirmance; 1 full vacatur; 1 grant of a petition for review of an agency decision; and 1 transfer of venue to the D.C. Circuit. 2 of the dispositions favored the defendant, and 2 favored plaintiffs.
• In administrative law cases, there was 1 full reversal. That 1 disposition favored the plaintiff.
• In voting/election law cases, there were 2 full affirmances; 1 full vacatur; and 1 order of en banc rehearing. 3 dispositions favored the state; and 1 disposition favored the challenging plaintiff.
• In arbitration cases, there was 1 full affirmance. That 1 disposition favored the defendant.
• In tax law cases, there were 2 full affirmances. Both dispositions favored the government.
• In product liability cases, there was 1 full affirmance. That 1 disposition favored the plaintiff.
• In attorney discipline cases, there was 1 full reversal. That 1 disposition favored the attorney who had been disciplined.

How much law is being made?

• Of the 213 opinions released by the 5th Circuit in November 2023, 25 were designated for publication. 10 of those were full affirmances; 3 were partial affirmances/partial reversals/vacaturs; 2 were full reversals; 5 were full vacaturs; 1 was a certification to a state supreme court; 1 was an order of en banc rehearing; 2 were grants of petitions for review of agency orders; and 1 was a transfer of venue.
• 187 of the November opinions were unpublished, including 163 full affirmances/appeal dismissals; 3 partial affirmances/partial reversals/vacaturs; 3 full reversals; 1 grant of a writ of mandamus; 4 full vacaturs; 11 denials/dismissals of petitions to review BIA orders; 1 grant of a petition to review a BIA order; and 1 denial of a petition for review of another agency decision.

Who was doing what on the Court?

Who was the busiest, in that they were on the most panels issuing opinions in November? (Judge Wilson). Who was the busiest writer, authoring the most attributed opinions? (Judge Higginson). Who concurred the most in separate opinions? (Judges Ho, Oldham, and Higginbotham, with 1 each). Who authored the most dissenting or dubitante opinions? (Judges Dennis and Haynes, with 2 each). How many opinions did the Court issue per curiam, with no author listed? (187, with 184 of those unpublished). Who participated in making the most law, participating in the most panels with published opinions? (Judge Elrod). 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	3	3					3
Jones	27	27				3	24
Smith	35	34	4		1	9	26
Stewart	33	33				3	30
Elrod	49	49	2			11	38
Southwick	37	37	1			4	33
Haynes	24	22			2	2	22
Graves	31	31	2			3	28
Higginson	24	24	9			3	21
Willett	26	26				2	24
Ho	24	23		1	1	2	22
Duncan	17	17	1			2	15
Engelhardt	45	45	2			4	41
Oldham	40	40		1		3	37
Wilson	53	53				2	51
Douglas	43	43				2	41
Dist. Ct. Judge sitting by designation
King	16	16	1			3	13
Jolly	8	8	1				8
Higginbotham	16	15	3	1	1	6	10
Davis	6	6					6
Wiener	29	29	1			1	28
Barksdale	23	23				1	22
Dennis	11	9			2	1	10
Clement	10	10	2			2	8
per curiam			187 (4 with separate concurrence, dissent, or dubitante)			3	184

Conclusions? Most decisions in November, as always, were unanimous, with only 7 dissenting opinions and 3 separate concurrences out of 213 opinions. Among senior-status judges, Judges Wiener and Barksdale 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 November was from Chief Judge Richman.

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