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 May 2024 statistics are based on 176 total opinions released by the Court (10 fewer than in the previous month).
Where the appeals are coming from
- The Middle District of Louisiana, Northern District of Mississippi, and Southern District of Mississippi all had perfect affirmance rates in May 2024, with 4 full affirmances from the opinions originating in the M.D. La., 4 full affirmances from the N.D. Miss., and 2 full affirmances from the S.D. Miss.
- The Northern District of Texas was the district with the most decisions originating from there, 50 total decisions. In the district, 48 of those were full affirmances or appeal dismissals; 1 was a partial affirmance/partial reversal/vacatur; and 1 was a full reversal.
- From the Western District of Texas, 26 decisions were full affirmances/appeal dismissals; 1 was a full reversal; and 3 were full vacaturs.
- From decisions from the Southern District of Texas there were 28 full affirmances/appeal dismissals; 2 partial affirmances/partial reversals/vacaturs; 3 full reversals; 1 denial of mandamus; and 1 order granting a petition for review of agency action.
- From the Eastern District of Texas there were 9 full affirmances/appeal dismissals; and 1 certification to the state supreme court.
- From the Western District of Louisiana, there were 10 full affirmances/appeal dismissals; and 1 full vacatur.
- From the Eastern District of Louisiana, there were 14 full affirmances/appeal dismissals; 1 full reversal; and 2 full vacaturs.
- From petitions for review of Board of Immigration Appeal decisions, there were 13 denials.
- From appeals of or petitions for review of other agency actions, there was 1 denials of a petition for review of an agency order; 1 grant of a petition for review of an agency order; and 1 order granting expedited review but carrying a motion to stay over to the merits panel.
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; 1 was a full reversal; and 4 were vacaturs. 99 of the dispositions favored the prosecution, and 5 favored the defendant.
- In post-conviction relief cases, including state and federal habeas petitions, there were 2 full affirmances/appeal dismissals. Both of the dispositions favored the government.
- In immigration cases, there were 13 dismissals/denials of petitions for review of Board of Immigration Appeals orders. All 13 dispositions favored the government.
- In prisoner suits, there were 12 full affirmances/appeal dismissals. All 12 dispositions favored the government defendants.
- In commercial – civil cases, there were 6 full affirmances/appeal dismissals; 1 partial affirmance/partial reversal/vacatur; 2 full reversals; 1 denial of mandamus; and 1 full vacatur. 6 of the dispositions favored the defendant, and 5 favored the plaintiff.
- In civil rights/constitutional claims (non-prisoner-suits), there were 7 full affirmances/appeal dismissals; 1 full reversal; 1 certification to a state supreme court; and 1 grant of a petition for review of agency action. 8 of the dispositions favored the defendant, and 2 favored the plaintiff.
- In employment/labor law cases, there were 7 full affirmances/appeal dismissals; 2 full reversals; and 1 grant of a petition for review of agency action. 8 of the dispositions favored an employer, and 2 favored the employees.
- In qualified immunity cases, there were 3 full affirmances/appeal dismissals. All 3 of the dispositions favored the plaintiff
- In personal injury/non-commercial tort cases, there were 2 full affirmances; and 1 full reversal. 2 dispositions favored the defendant; and 1 favored the plaintiff.
- In environmental law/toxic tort cases, there was 1 full affirmance. That 1 disposition favored the plaintiff.
- In administrative law cases, there was 1 full affirmance; 1 denial of a petition for review of agency action; and 1 order granting expedited review but carrying a motion to stay over to the merits panel. 1 disposition favored the plaintiff/challenger; and 2 favored the defendant/government actor.
- In arbitration cases, there was 1 full affirmance/appeal dismissal. That 1 disposition favored the defendant.
- In bankruptcy cases, there were 2 full affirmances. Both dispositions favored the debtor.
- In maritime law cases, there was 1 full reversal. That disposition favored the defendant.
- In product liability cases, there was 1 full vacatur. That 1 disposition favored the defendant.
- In international law cases, there was 1 full affirmance. That 1 disposition favored the defendant.
How much law is being made?
- Of the 176 opinions released by the 5th Circuit in May 2024, 28 were designated for publication. 15 of those were full affirmances; 2 were partial affirmances/partial reversals/vacaturs; 5 were full reversals; 2 were full vacaturs; 2 were denials of petitions for review of BIA orders; 1 was a denial of a petition for review of other agency action; and 1 was a grant of a motion to expedite and carrying with the case of motion to stay.
- 151 of the May opinions were unpublished, including 129 full affirmances/appeal dismissals; 1 partial affirmance/partial reversal/vacatur; 1 full reversal; 1 denial of mandamus; 4 full vacaturs; 1 certification to a state supreme court; 12 denials/dismissals of petitions to review BIA orders; 1 denial of a petition for review of agency action; and 1 grant of a petition for review of agency action.
Who was doing what on the Court?
Who was the busiest, in that they were on the most panels issuing opinions in May? (Judge Wilson). Who was the busiest writer, authoring the most attributed opinions? (Judges Graves and Oldham, with 4 each). Who concurred the most in separate opinions? (Judge Ho, with 2). Who authored the most dissenting or dubitante opinions? (Judges Richman, Jones, Elrod, Oldham, and Wilson, with 1 each). How many opinions did the Court issue per curiam, with no author listed? (152, with 147 of those unpublished). Who participated in making the most law, participating in the most panels with published opinions? (Judge Oldham, with 7). 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 | 9 | 8 | 1 | 5 | 4 | ||
| Jones | 21 | 20 | 1 | 1 | 4 | 17 | |
| Smith | 21 | 21 | 2 | 6 | 15 | ||
| Stewart | 16 | 16 | 1 | 2 | 14 | ||
| Elrod | 35 | 34 | 1 | 1 | 1 | 34 | |
| Southwick | 25 | 25 | 1 | 4 | 21 | ||
| Haynes | 20 | 20 | 1 | 6 | 14 | ||
| Graves | 25 | 25 | 4 | 3 | 22 | ||
| Higginson | 29 | 29 | 5 | 24 | |||
| Willett | 18 | 18 | 3 | 15 | |||
| Ho | 29 | 29 | 1 | 2 | 6 | 23 | |
| Duncan | 22 | 22 | 22 | ||||
| Engelhardt | 32 | 32 | 1 | 5 | 27 | ||
| Oldham | 49 | 48 | 3 | 1 | 7 | 42 | |
| Wilson | 52 | 52 | 1 | 6 | 46 | ||
| Douglas | 21 | 21 | 2 | 19 | |||
| Ramirez | 15 | 15 | 1 | 15 | |||
| Dist. Ct. Judge sitting by designation | 2 | 2 | 2 | ||||
| King | 16 | 16 | 1 | 3 | 13 | ||
| Jolly | 10 | 10 | 1 | 2 | 8 | ||
| Higginbotham | 8 | 8 | 1 | 3 | 5 | ||
| Davis | 8 | 8 | 2 | 3 | 5 | ||
| Wiener | 9 | 9 | 1 | 8 | |||
| Barksdale | 16 | 16 | 16 | ||||
| Dennis | 13 | 13 | 2 | 3 | 10 | ||
| Clement | 11 | 11 | 1 | 1 | 10 | ||
| per curiam | 152 (4 with separate concurrence, dissent, or dubitante) | 5 | 147 |
Conclusions? Most decisions in May, as always, were unanimous, with only 5 dissenting opinions and 2 separate concurrences out of 176 opinions. Among senior-status judges, Judges King and Barksdale had the heaviest participation in panels, participating in the same general level of panels as some of the active-status judges. Meanwhile, among active-status judges, the lightest production in May was from Chief Judge Richman.
Wrap it all together, and an opinion in May 2024 was most likely to be an unpublished per curiam affirming a criminal decision from the Northern District of Texas, with Judges Wilson, Oldham, and Elrod on the panel.
Take the Fifth 