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 December 2023 statistics are based on 190 total opinions released by the Court (23 fewer than in the previous month).

Where the appeals are coming from

• The Southern District of Mississippi and the Eastern District of Texas had perfect affirmance rates in December 2023, with 4 full affirmances from opinions originating in the Southern District of Mississippi and 8 full affirmances from Eastern District of Texas decisions.
• The Northern District of Texas was the district with the most decisions originating from there, 55 total decisions. In the district, 49 of those were full affirmances or appeal dismissals; 3 were partial affirmances/partial reversals/vacaturs; 2 were full reversals; and 1 was a denial of a writ of mandamus.
• From the Western District of Texas, 38 decisions were full affirmances/appeal dismissals; 2 were partial affirmances/partial reversals/vacaturs; 1 was a full reversal; and 1 was a full vacatur.
• From decisions from the Southern District of Texas there were 35 full affirmances/appeal dismissals; 2 full vacaturs; 1 published denial of en banc rehearing; and 1 order granting a stay pending full appeal.
• From the Eastern District of Louisiana, there were 7 full affirmances/appeal dismissals; 3 partial affirmances/partial reversals/vacaturs; and 3 full vacaturs.
• From the Middle District of Louisiana, there were 3 full affirmances/appeal dismissals; 1 partial affirmance/partial reversal/vacatur; 1 full reversal; and 1 full vacatur.
• From the Western District of Louisiana, there were 13 full affirmances/appeal dismissals; and 1 full vacatur.
• There were no opinions in December originating from the Northern District of Mississippi.
• From petitions for review of Board of Immigration Appeal decisions, there were 7 denials; and 1 grant.
• From appeals of or petitions for review of other agency actions, there were 2 full vacaturs.

What the appeals are about, and who they benefit

• The largest number of appeals are of criminal conviction and/or sentencing issues. 99 resulted in full affirmances/appeal dismissals; 5 were partial affirmances/partial reversals/vacaturs; and 1 was a denial of a writ of mandamus. 102 of the dispositions favored the prosecution, and 3 favored the defendant.
• In post-conviction relief cases, including state and federal habeas petitions, there were 5 full affirmances/appeal dismissals; and 2 full vacaturs. 5 of the dispositions favored the government, and 2 favored the petitioners.
• In immigration cases, there were 7 dismissals/denials of petitions for review of Board of Immigration Appeals orders; and 1 grant of such a petition. 7 dispositions favored the government; and 1 favored the petitioner.
• In prisoner suits, there were 7 full affirmances/appeal dismissals; 2 partial affirmances/partial reversals/vacaturs; and 1 full vacatur. 7 dispositions favored the government defendants; and 3 dispositions favored the plaintiff prisoners.
• In commercial – civil cases, there were 15 full affirmances/appeal dismissals; and 1 full vacatur. 13 of the dispositions favored the defendant, and 3 favored the plaintiff.
• In civil rights/constitutional claims (non-prisoner-suits), there were 14 full affirmances/appeal dismissals. 12 of the dispositions favored the defendant, and 2 favored the plaintiffs.
• In employment/labor law cases, there were 8 full affirmances/appeal dismissals; and 1 partial affirmance/partial reversal/vacatur. 8 of the dispositions favored an employer, and 1 favored the employees.
• In qualified immunity cases, there were 2 full affirmances/appeal dismissals. Both favored the plaintiffs.
• In personal injury/non-commercial tort cases, there was 1 full affirmance; 1 full reversal; 1 full vacatur; and 1 published denial of en banc rehearing. 3 dispositions favored the defendant; and 1 favored the plaintiff.
• In social security cases, there was 1 full affirmance. The 1 disposition favored the SSA.
• In environmental law/toxic tort cases, there was 1 full affirmance; and 1 full vacatur. Both favored plaintiffs.
• In administrative law cases, there was 1 full affirmance; 1 partial affirmance/partial reversal/vacatur; and 1 full vacatur. 1 disposition favored the defendant agency, and 2 favored the plaintiff/challengers.
• In voting/election law cases, there were 1 full reversal; 2 full vacaturs; and 1 order granting a stay pending full appeal. All 4 dispositions favored the defendant government actors.
• In arbitration cases, there was 1 full affirmance. That 1 disposition favored the plaintiff.
• In tax law cases, there was 1 full affirmance. That 1 disposition favored the government.
• In product liability cases, there was 1 full affirmance. That 1 disposition favored the defendant.
• In class action cases, there was 1 full vacatur. That 1 disposition favored the defendant.
• In maritime law cases, there was 1 partial affirmance/partial reversal/vacatur. That 1 disposition favored the plaintiff.

How much law is being made?

• Of the 190 opinions released by the 5th Circuit in December 2023, 30 were designated for publication. 13 of those were full affirmances; 4 were partial affirmances/partial reversals/vacaturs; 1 was a full reversal; 1 was a denial of a writ of mandamus; 7 were full vacaturs; 1 was a published denial of en banc rehearing; 1 was a denial of a petition for review of a BIA order; 1 was a grant of a petition for review of a BIA order; and 1 was a grant of stay pending appeal.
• 160 of the December opinions were unpublished, including 144 full affirmances/appeal dismissals; 6 partial affirmances/partial reversals/vacaturs; 1 full reversal; 3 full vacaturs; and 6 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 December? (Judge Southwick). Who was the busiest writer, authoring the most attributed opinions? (Judge Higginson). Who concurred the most in separate opinions? (Judge Ho, with 2). Who authored the most dissenting or dubitante opinions? (Judges Elrod and Higginson, with 2 each). How many opinions did the Court issue per curiam, with no author listed? (160, with 156 of those unpublished). Who participated in making the most law, participating in the most panels with published opinions? (Judge 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	7	7		1		2	5
Jones	27	27	2			6	21
Smith	31	29	1		1	8	23
Stewart	40	39				4	36
Elrod	27	25	2		2	6	21
Southwick	48	47	2			9	39
Haynes	25	23	1		1	5	20
Graves	25	24	1			5	20
Higginson	35	33	3	1	2	11	24
Willett	20	18	4		1	7	13
Ho	24	23	1	2	1	4	20
Duncan	32	31	2			7	25
Engelhardt	37	36				5	32
Oldham	33	31	2		1	6	27
Wilson	35	34	1			3	32
Douglas	31	30	2			7	24
Dist. Ct. Judge sitting by designation	2	2					2
King	15	15				3	12
Jolly	10	10	1			1	9
Higginbotham	33	33	1			7	26
Davis	8	8				2	6
Wiener	13	13				3	10
Barksdale	11	11				2	9
Dennis	10	9			1		10
Clement	16	16	3	1		7	9
per curiam			160 (4 with separate concurrence, dissent, or dubitante)			4	156

Conclusions? Most decisions in December, as always, were unanimous, with only 10 dissenting opinions and 5 separate concurrences out of 190 opinions. Among senior-status judges, Judge Higginbotham had the heaviest participation in panels, at the same level of many active-status judges. Meanwhile, among active-status judges, the lightest production in December was from Chief Judge Richman.

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