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 February 2024 statistics are based on 212 total opinions released by the Court (31 more than in the previous month).

Where the appeals are coming from

• The Northern District of Mississippi and the Southern District of Mississippi both had perfect affirmance rates in February 2024, with 9 full affirmances from opinions originating in the S.D. Miss. and 1 full affirmance in the one opinion originating in the N.D. Miss.
• The Northern District of Texas was the district with the most decisions originating from there, 65 total decisions. In the district, 61 of those were full affirmances or appeal dismissals; 1 was a partial affirmance/partial reversal/vacatur; 2 were full reversals; and 1 was a full vacatur.
• From the Southern District of Texas, 22 decisions were full affirmances/appeal dismissals; 1 was a partial affirmance/partial reversal/vacatur; 6 were full vacaturs; and 2 were published denials of en banc rehearing.
• From decisions from the Western District of Texas there were 37 full affirmances/appeal dismissals; 1 partial affirmance/partial reversal/vacatur; 1 full reversal; 3 full vacaturs; 1 order of en banc rehearing; and 1 denial of a motion.
• From the Eastern District of Texas there were 12 full affirmances/appeal dismissals; 1 full reversal; 1 published denial of en banc rehearing; 1 denial of a motion; and 1 grant of a motion.
• From the Eastern District of Louisiana, there were 8 full affirmances/appeal dismissals; 2 partial affirmances/partial reversals/vacaturs; and 1 full reversal.
• From the Middle District of Louisiana, there were 4 full affirmances/appeal dismissals; 1 full reversal; and 2 published denials of en banc rehearing.
• From the Western District of Louisiana, there were 18 full affirmances/appeal dismissals; and 1 full vacatur.
• From petitions for review of Board of Immigration Appeal decisions, there were 7 denials.
• From appeals of or petitions for review of other agency actions, there was 1 certification of a question to the Texas Supreme Court and 1 order of en banc rehearing.

What the appeals are about, and who they benefit

• The largest number of appeals are of criminal conviction and/or sentencing issues. 119 resulted in full affirmances/appeal dismissals; 1 was a partial affirmance/partial reversal/vacatur; and 4 were full vacaturs. 120 of the dispositions favored the prosecution, and 4 favored the defendant.
• In post-conviction relief cases, including state and federal habeas petitions, there were 5 full affirmances/appeal dismissals; 1 full reversal; and 1 denial of a motion. 6 of the dispositions favored the government, and 1 favored the petitioner.
• In immigration cases, there were 7 dismissals/denials of petitions for review of Board of Immigration Appeals orders. All dispositions in February favored the government.
• In prisoner suits, there were 9 full affirmances/appeal dismissals; 1 full reversal; and 1 grant of a motion. 9 dispositions favored the government defendants; and 2 dispositions favored the plaintiff prisoners.
• In commercial – civil cases, there were 10 full affirmances/appeal dismissals; 1 partial affirmance/partial reversal/vacatur; and 1 full vacatur. 5 of the dispositions favored the defendant, and 7 favored the plaintiff.
• In civil rights/constitutional claims (non-prisoner-suits), there were 12 full affirmances/appeal dismissals; 1 partial affirmance/partial reversal/vacatur; 2 full reversals; 2 full vacaturs; 2 published denials of en banc rehearing; and 1 order of en banc rehearing. 16 of the dispositions favored the defendant, and 4 favored the plaintiff.
• In employment/labor law cases, there were 6 full affirmances/appeal dismissals; 1 partial affirmance/partial reversal/vacatur; and 2 full vacaturs. 8 of the dispositions favored an employer, and 1 favored the employees.
• In qualified immunity cases, there were 3 full affirmances/appeal dismissals; 1 partial affirmance/partial reversal/vacatur; 1 full reversal; and 2 published denials of en banc rehearing. 5 of the dispositions favored the government defendants; and 2 favored the plaintiffs.
• In personal injury/non-commercial tort cases, there were 2 full affirmances; and 1 full vacatur. 2 dispositions favored the defendant; and 1 favored the plaintiff.
• In environmental law/toxic tort cases, there were 2 full affirmances; 1 certification of a question to a state supreme court; and 1 denial of a motion. 2 dispositions favored defendants; and 2 favored plaintiffs.
• In administrative law cases, there was 1 order of en banc rehearing. 1 disposition favored the plaintiff/challengers.
• In voting/election law cases, there was 1 partial affirmance/partial reversal/vacatur. The 1 disposition favored the defendant.
• In arbitration cases, there was 1 full vacatur. That 1 disposition favored the defendant.
• In healthcare law cases, there was 1 full affirmance. That 1 disposition favored the government.
• In class action cases, there was 1 full affirmance. That 1 disposition favored the defendant.
• In bankruptcy cases, there 2 full affirmances; and 1 published denial of en banc rehearing. 2 dispositions favored the debtor, and 1 favored a creditor.

How much law is being made?

• Of the 212 opinions released by the 5th Circuit in February 2024, 40 were designated for publication. 18 of those were full affirmances; 2 were partial affirmances/partial reversals/vacaturs; 4 were full reversals; 6 were full vacaturs; 1 was a certification to a state supreme court; 5 were published denials of en banc rehearing; 1 was an order of en banc rehearing; 1 was a denial of a petition for review of a BIA order; and 2 were denials of motions.
• 172 of the February opinions were unpublished, including 154 full affirmances/appeal dismissals; 4 partial affirmances/partial reversals/vacaturs; 1 was a full reversal; 5 full vacaturs; 1 order of en banc rehearing; 6 denials/dismissals of petitions to review BIA orders; and 1 grant 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 February? (Judge Stewart). Who was the busiest writer, authoring the most attributed opinions? (Judges Southwick, Higginson, and Oldham, with 6 each). Who concurred the most in separate opinions? (Judges Jones and Elrod, with 2 each). Who authored the most dissenting or dubitante opinions? (Judge Oldham, with 5). How many opinions did the Court issue per curiam, with no author listed? (176, with 167 of those unpublished). Who participated in making the most law, participating in the most panels with published opinions? (Judge Higginson, with 17). 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	13	12	1			7	6
Jones	36	33	2	2		9	27
Smith	38	33	1		1	13	25
Stewart	54	53	3			15	39
Elrod	23	19		2	2	7	16
Southwick	40	40	6			15	25
Haynes	28	27				10	18
Graves	37	33	1		2	11	26
Higginson	46	43	4		2	17	29
Willett	30	29		1		6	24
Ho	33	28			2	10	23
Duncan	37	32			1	8	29
Engelhardt	42	39				11	31
Oldham	31	26		1	5	8	23
Wilson	33	32	4			15	18
Douglas	36	35	1	1	1	12	24
Ramirez	24	23				6	18
Dist. Ct. Judge sitting by designation	2	2					2
King	23	23				2	21
Jolly	19	19				1	18
Higginbotham	28	28	4			6	22
Davis	7	7					7
Wiener	11	11				1	10
Barksdale	12	12					12
Dennis	14	13	2		1	6	8
Clement	17	17	4			5	12
per curiam			176 (2 with separate concurrence, dissent, or dubitante)			9	167

Conclusions? Most decisions in February, as always, were unanimous, with only 17 dissenting opinions and 7 separate concurrences out of 212 opinions. Among senior-status judges, Judges King and Higginbotham had the heaviest participation in panels, participating in the same general level of panels as most of the active-status judges. Meanwhile, among active-status judges, the lightest production in February was from Chief Judge Richman.

Wrap it all together, and an opinion in February 2024 was most likely to be an unpublished per curiam affirming a criminal decision from the Northern District of Texas, with Judges Stewart, Higginson, and Engelhardt on the panel.