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 April 2024 statistics are based on 186 total opinions released by the Court (66 fewer than in the previous month).

Where the appeals are coming from

• The Eastern District of Louisiana, Middle District of Louisiana, and Southern District of Texas all had perfect affirmance rates in April 2024, with 9 full affirmances from the opinions originating in the E.D. La., 4 full affirmances from the M.D. La., and 6 full affirmances from the S.D. Miss.
• The Northern District of Texas was the district with the most decisions originating from there, 52 total decisions. In the district, 44 of those were full affirmances or appeal dismissals; 2 were partial affirmances/partial reversals/vacaturs; 2 were full reversals; 1 was a grant of a writ of mandamus; and 3 were full vacaturs.
• From the Western District of Texas, 41 decisions were full affirmances/appeal dismissals; 2 were partial affirmances/partial reversals/vacaturs; 3 were full reversals; 1 was a full vacatur; and 1 was a published denial of en banc rehearing.
• From decisions from the Southern District of Texas there were 24 full affirmances/appeal dismissals; 1 partial affirmance/partial reversal/vacatur; 3 full reversals; 1 full vacatur; 1 published denial of en banc rehearing; and 1 order granting a motion.
• From the Eastern District of Texas there were 9 full affirmances/appeal dismissals; 1 full vacatur; and 1 published denial of en banc rehearing.
• From the Western District of Louisiana, there were 9 full affirmances/appeal dismissals; and 1 full reversal.
• From the Northern District of Mississippi, there were 4 full affirmances/appeal dismissals; and 1 certification to the state supreme court.
• 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 were 3 denials of petitions for review of agency orders.

What the appeals are about, and who they benefit

• The largest number of appeals are of criminal conviction and/or sentencing issues. 86 resulted in full affirmances/appeal dismissals; 2 were partial affirmances/partial reversals/vacaturs; and 2 were full vacaturs. 86 of the dispositions favored the prosecution, and 4 favored the defendant.
• In post-conviction relief cases, including state and federal habeas petitions, there were 3 full affirmances/appeal dismissals. All 3 of the dispositions favored the government.
• In immigration cases, there was 1 full vacatur; and 7 dismissals/denials of petitions for review of Board of Immigration Appeals orders. All 8 dispositions favored the government.
• In prisoner suits, there were 5 full affirmances/appeal dismissals; and 1 full reversal. 5 dispositions favored the government defendants; and 1 disposition favored the plaintiff prisoner.
• In commercial – civil cases, there were 17 full affirmances/appeal dismissals; 1 partial affirmance/partial reversal/vacatur; and 4 full reversals. 18 of the dispositions favored the defendant, and 4 favored the plaintiff.
• In civil rights/constitutional claims (non-prisoner-suits), there were 13 full affirmances/appeal dismissals; 1 published denial of en banc rehearing; and 1 grant of a motion. 13 of the dispositions favored the defendant, and 2 favored the plaintiff.
• In employment/labor law cases, there were 10 full affirmances/appeal dismissals; 1 full vacatur; 1 certification to a state supreme court; 1 published denial of en banc rehearing; and 1 denial of a petition for review of agency action. 10 of the dispositions favored an employer, and 4 favored the employees.
• In qualified immunity cases, there were 2 full affirmances/appeal dismissals; and 2 partial affirmances/partial reversals/vacaturs. 3 of the dispositions favored the government defendants.; and 1 favored the plaintiff
• In personal injury/non-commercial tort cases, there were 4 full affirmances; and 1 full reversal. 4 dispositions favored the defendant; and 1 favored the plaintiff.
• In environmental law/toxic tort cases, there was 1 full affirmance; and 2 denials of petitions for review of agency action. All 3 dispositions favored the defendants or government actors.
• In administrative law cases, there was 1 full affirmance; 1 full reversal; 1 grant of a petition for mandamus; and 1 published denial of en banc rehearing. 2 dispositions favored the plaintiff/challengers; and 2 favored the defendant/government actor.
• In voting/election law cases, there was 1 full affirmance. The 1 disposition favored the defendant.
• In arbitration cases, there was 1 full affirmance/appeal dismissal. That 1 disposition favored the defendant.
• In class action cases, there was 1 full vacatur. That 1 disposition favored the defendant.
• In bankruptcy cases, there were 2 full affirmances; 2 full reversals; and 1 full vacatur. 3 dispositions favored the creditor, and 2 favored a debtor.
• In social security cases, there was 1 full affirmance. That 1 disposition favored the government.
• In maritime law cases, there were 2 full affirmances/appeal dismissals. 1 of the dispositions favored the plaintiff, and 1 favored the defendant.
• In attorney discipline cases, there was 1 full affirmance. That 1 disposition favored the sanctions order.

How much law is being made?

• Of the 186 opinions released by the 5th Circuit in April 2024, 41 were designated for publication, a much higher proportion than the previous month. 19 of those were full affirmances; 2 were partial affirmances/partial reversals/vacaturs; 7 were full reversals; 1 was a grant of mandamus; 5 were full vacaturs; 1 was a certification to a state supreme court; 3 were published denials of en banc rehearing; 1 was a denial of a petition for review of a BIA order; and 2 were denials of petitions for review of other agency action.
• 145 of the April opinions were unpublished, including 131 full affirmances/appeal dismissals; 3 partial affirmances/partial reversals/vacaturs; 2 full reversals; 1 full vacatur; 6 denials/dismissals of petitions to review BIA orders; 1 denial of a petition for review of agency action; and 1 grants 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 April? (Judge Engelhardt). Who was the busiest writer, authoring the most attributed opinions? (Judge Oldham, with 7). Who concurred the most in separate opinions? (Judges Willett and Oldham, with 2 each). Who authored the most dissenting or dubitante opinions? (Judge Oldham, with 4). How many opinions did the Court issue per curiam, with no author listed? (150, with 142 of those unpublished). Who participated in making the most law, participating in the most panels with published opinions? (Judges Smith and Higginson, with 15 each). 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	19	17	1			10	9
Jones	32	29	3		1	8	24
Smith	32	29	4		1	15	17
Stewart	35	35	2			8	27
Elrod	20	17	3		1	8	12
Southwick	35	35				3	32
Haynes	33	33	2			14	19
Graves	20	20	1			4	16
Higginson	32	30	4		2	15	17
Willett	26	25	3	2		10	16
Ho	30	28	1	1	2	5	25
Duncan	27	24	3		1	12	15
Engelhardt	39	36	1		1	10	29
Oldham	28	23	1	2	4	12	16
Wilson	26	25				7	19
Douglas	30	30	3			8	22
Ramirez	33	33	2			7	26
Dist. Ct. Judge sitting by designation	2	2					2
King	18	18				2	16
Jolly	12	12	1			1	11
Higginbotham	29	29				8	21
Davis	13	13	1			1	12
Wiener	12	12				3	9
Barksdale	7	7					7
Dennis	12	10	2	1	2	5	7
Clement	9	9				3	6
per curiam			150 (3 with separate concurrence, dissent, or dubitante)			8	142

Conclusions? Most decisions in April, as always, were unanimous, with only 15 dissenting opinions and 6 separate concurrences out of 186 opinions (albeit a higher proportion of non-unanimous opinions than most months). Among senior-status judges, Judges King and 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 April was from Chief Judge Richman, followed closely by Judges Elrod and Graves.

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