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 March 2024 statistics are based on 252 total opinions released by the Court (40 more than in the previous month).

Where the appeals are coming from

• The Northern District of Mississippi and the Middle District of Louisiana both had perfect affirmance rates in March 2024, with 3 full affirmances (along with 1 opinion granting a motion) from opinions originating in the M.D. La., 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, 74 total decisions. In the district, 66 of those were full affirmances or appeal dismissals; 2 were partial affirmances/partial reversals/vacaturs; 3 were full reversals; 1 was a full vacatur; 1 was a published denial of en banc rehearing; and 1 was a grant of a motion.
• From the Southern District of Texas, 48 decisions were full affirmances/appeal dismissals; 1 was a partial affirmance/partial reversal/vacatur; 2 were full reversals; 1 was a denial of a writ of mandamus; 5 were full vacaturs; and 1 was a denial of a motion.
• From decisions from the Western District of Texas there were 47 full affirmances/appeal dismissals; 1 partial affirmance/partial reversal/vacatur; 1 full reversal; 1 grant of a writ of mandamus; 1 full vacatur; 1 denial of a motion; and 1 grant of a motion.
• From the Eastern District of Texas there were 8 full affirmances/appeal dismissals; 1 partial affirmance/partial reversal/vacatur; and 1 full reversal.
• From the Eastern District of Louisiana, there were 11 full affirmances/appeal dismissals; 2 partial affirmances/partial reversals/vacaturs; and 1 full reversal.
• From the Western District of Louisiana, there were 12 full affirmances/appeal dismissals; 3 full reversals; and 1 full vacatur.
• From the Southern District of Mississippi, there were 3 full affirmances/appeal dismissals; 1 partial affirmance/partial reversal/vacatur; and 1 full vacatur.
• From petitions for review of Board of Immigration Appeal decisions, there were 12 denials.
• From appeals of or petitions for review of other agency actions, there was 1 full vacatur;1 published denial of en banc rehearing;2 grants of petitions for review of agency orders; and 1 grant of a motion.

What the appeals are about, and who they benefit

• The largest number of appeals are of criminal conviction and/or sentencing issues. 124 resulted in full affirmances/appeal dismissals; 1 was a partial affirmance/partial reversal/vacatur; and 1 was a full vacatur. 124 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. All 5 of the dispositions favored the government.
• In immigration cases, there were 12 dismissals/denials of petitions for review of Board of Immigration Appeals orders; and 1 denial of a motion. 12 dispositions favored the government; 1 favored the immigrant.
• In prisoner suits, there were 14 full affirmances/appeal dismissals; 1 full vacatur; and 1 grant of a motion. 15 dispositions favored the government defendants; and 1 dispositions favored the plaintiff prisoner.
• In commercial – civil cases, there were 17 full affirmances/appeal dismissals; 2 partial affirmances/partial reversals/vacaturs; 6 full reversals; 1 grant of a writ of mandamus; 1 full vacatur; and 1 denial of a motion. 16 of the dispositions favored the defendant, and 12 favored the plaintiff.
• In civil rights/constitutional claims (non-prisoner-suits), there were 11 full affirmances/appeal dismissals; 2 partial affirmances/partial reversals/vacaturs; 1 full reversal; 1 full vacatur; and 1 grant of a motion. 15 of the dispositions favored the defendant, and 1 favored the plaintiff.
• In employment/labor law cases, there were 8 full affirmances/appeal dismissals; 1 full reversal; 1 denial of a writ of mandamus; 1 published denial of en banc rehearing; and 1 grant of a petition for review of agency action. 11 of the dispositions favored an employer, and 1 favored the employees.
• In qualified immunity cases, there were 3 full affirmances/appeal dismissals. All 3 of the dispositions favored the government defendants.
• In personal injury/non-commercial tort cases, there were 7 full affirmances; 2 partial affirmances/partial reversals/vacaturs; and 1 full vacatur. 7 dispositions favored the defendant; and 3 favored the plaintiff.
• In environmental law/toxic tort cases, there was 1 full vacatur. That 1 disposition favored the plaintiffs.
• In administrative law cases, there was 1 published denial of en banc rehearing; 1 grant of a petition for review of agency action; and 1 grant of a motion. All 3 dispositions favored the plaintiff/challengers.
• In voting/election law cases, there was 1 full affirmance. The 1 disposition favored the defendant.
• In arbitration cases, there were 2 full affirmances/appeal dismissals; and 2 full reversals. All 4 dispositions favored the defendant.
• In healthcare law cases, there was 1 partial affirmance/partial reversal/vacatur. That 1 disposition favored the plaintiff.
• In class action cases, there was 1 full vacatur. That 1 disposition favored the defendant.
• In bankruptcy cases, there were 3 full affirmances; and 1 full vacatur. 3 dispositions favored the creditor, and 1 favored a debtor.
• In social security cases, there was 1 full affirmance. That 1 disposition favored the government.
• In products liability cases, there was 1 full affirmance; and 1 full reversal. Both dispositions favored the defendant.
• In maritime law cases, there were 2 full affirmances/appeal dismissals; and 1 full vacatur. 2 of the dispositions favored the plaintiff, and 1 favored the defendant.
• In attorney discipline cases, there was 1 full vacatur. That 1 disposition favored the attorney.

How much law is being made?

• Of the 252 opinions released by the 5th Circuit in March 2024, 33 were designated for publication. 11 of those were full affirmances; 4 were partial affirmances/partial reversals/vacaturs; 6 were full reversals; 1 was a grant of mandamus; 1 was a denial of mandamus; 3 were full vacaturs; 2 were published denials 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 agency action; 2 were denials of motions; and 1 was a grant of a motion.
• 219 of the March opinions were unpublished, including 188 full affirmances/appeal dismissals; 4 partial affirmances/partial reversals/vacaturs; 5 full reversals; 7 full vacaturs; 11 denials/dismissals of petitions to review BIA orders; 1 grant of a petition for review of agency action; and 3 grants of motions.

Who was doing what on the Court?

Who was the busiest, in that they were on the most panels issuing opinions in March? (Judge Stewart). Who was the busiest writer, authoring the most attributed opinions? (Judge Smith, with 6). Who concurred the most in separate opinions? (Judges Jones and Higginson, with 1 each). Who authored the most dissenting or dubitante opinions? (Judge Higginson, with 2). How many opinions did the Court issue per curiam, with no author listed? (221, with 213 of those unpublished). Who participated in making the most law, participating in the most panels with published opinions? (Judge Smith, with 11). 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	14	13	1			6	8
Jones	33	33	2	1		6	27
Smith	36	36	6			11	25
Stewart	64	63	2			7	57
Elrod	42	40			1	8	34
Southwick	35	34	2			6	29
Haynes	34	34				7	27
Graves	37	35	1		1	6	31
Higginson	35	33	1	1	2	7	28
Willett	37	36	1			8	29
Ho	28	27	1			4	24
Duncan	41	41	2			9	32
Engelhardt	40	40				4	36
Oldham	51	50	3		1	4	47
Wilson	51	51	2			7	44
Douglas	37	35	2			7	30
Ramirez	28	27				3	25
Dist. Ct. Judge sitting by designation	6	6					6
King	22	22					22
Jolly	10	10					10
Higginbotham	26	25	1		1	6	20
Davis	11	11	1			1	10
Wiener	23	22	1		1	2	21
Barksdale	10	10					10
Dennis	14	13			1	3	11
Clement	17	17	2			3	14
per curiam			221 (1 with separate concurrence, dissent, or dubitante)			8	213

Conclusions? Most decisions in March, as always, were unanimous, with only 8 dissenting opinions and 2 separate concurrences out of 252 opinions. Among senior-status judges, Judges King, Higginbotham, and Wiener 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 March was from Chief Judge Richman.

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