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 September 2024 statistics are based on 178 total opinions released by the Court (46 fewer than in the previous month).

Where the appeals are coming from

• The Middle District of Louisiana was the only district with a perfect affirmance rate for decisions arising from that district that were disposed of in September 2024, with 1 full affirmance.
• The Northern District of Texas was the district with the most decisions originating from there in September, 51 total decisions. From the district, 48 of those were full affirmances or appeal dismissals; 1 was a denial of mandamus; 1 was a full vacatur; and 1 was a certification to the state supreme court.
• From the Southern District of Texas, 27 decisions were full affirmances/appeal dismissals; 1 was a partial affirmance/partial reversal/vacatur; 4 were full reversals; 4 were full vacaturs; 1 was an order of en banc rehearing; and 1 was a denial of a motion.
• From decisions from the Western District of Texas there were 20 full affirmances/appeal dismissals; 3 partial affirmances/partial reversals/vacaturs; 3 full reversals; and 3 full vacaturs.
• From the Eastern District of Texas there were 7 full affirmances/appeal dismissals; and 1 full vacatur.
• From the Western District of Louisiana, there were 10 full affirmances/appeal dismissals; and 1 full reversal.
• From the Eastern District of Louisiana, there were 9 full affirmances/appeal dismissals; 1 full reversal; and 1 full vacatur.
• From the Southern District of Mississippi, there were 7 full affirmances; and 1 full vacatur.
• From the Northern District of Mississippi, there were 6 full affirmances or appeal dismissals; and 1 full reversal.
• From the U.S. Tax Court, there was 1 full affirmance.
• From petitions for review of Board of Immigration Appeal decisions, there were 11 denials.
• From appeals of or petitions for review of other agency actions, there were 2 grants of petitions for review of agency orders.

What the appeals are about, and who they benefit

• The largest number of appeals were of criminal conviction and/or sentencing issues. 83 resulted in full affirmances/appeal dismissals; 1 was a partial affirmance/partial reversal/vacatur; and 5 were full vacaturs. 84 of the dispositions favored the prosecution, and 5 favored the defendant.
• In post-conviction relief cases, including state and federal habeas petitions, there was 1 full affirmance; and 1 denial of a motion for authority to file a successive habeas petition. Both dispositions favored the government.
• In immigration cases, there were 11 dismissals/denials of petitions for review of Board of Immigration Appeals orders; and 1 grant of a petition for review of other agency action. 11 dispositions favored the government; and 1 disposition favored the immigrant.
• In prisoner suits, there were 6 full affirmances/appeal dismissals. All 6 dispositions favored the government defendants.
• In commercial – civil cases, there were 9 full affirmances/appeal dismissals; 1 partial affirmance/partial reversal/vacatur; 3 full reversals; 2 full vacaturs; 1 certification to a state supreme court; and 1 order of en banc rehearing. 13 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 partial affirmance/partial reversal/vacatur; 1 full reversal; and 2 full vacaturs. 12 of the dispositions favored the defendant, and 5 favored the plaintiff.
• In employment/labor law cases, there were 10 full affirmances/appeal dismissals; 1 full reversal; and 1 grant of a petition for review of agency action. 10 of the dispositions favored an employer, and 2 favored the employees.
• In qualified immunity cases, there were 4 full affirmances/appeal dismissals; and 1 full reversal. 3 of the dispositions favored the defendant, and 2 favored the plaintiff.
• In personal injury/non-commercial tort cases, there were 4 full affirmances. All 4 dispositions favored the defendant.
• In environmental law/toxic tort cases, there was 1 full affirmance; and 1 denial of mandamus. 1 disposition favored the defendant; and 1 disposition favored the plaintiff.
• In administrative law cases, there was 1 full affirmance. The 1 disposition favored the defendant/agency.
• In voting/election law cases, there was 1 partial affirmance/partial reversal/vacatur. The 1 disposition favored the government defendant.
• In bankruptcy cases, there were 3 full affirmances/appeal dismissals. 2 of the dispositions favored the creditor or adverse claimant; and 1 favored the debtor.
• In arbitration cases, there were 2 full reversals. 1 disposition favored the defendant; and 1 disposition favored the plaintiff.
• In abortion cases, there was 1 full vacatur. That 1 disposition favored the government agency.
• In healthcare law cases (vaccine/health mandates), there were 2 full reversals; and 1 full vacatur. 1 disposition favored the government defendant; 2 dispositions favored the plaintiffs.
• In tax cases, there was 1 full affirmance. That 1 disposition favored the government.

How much law is being made?

• Of the 178 opinions released by the 5th Circuit in September 2024, 44 were designated for publication. 22 of those were full affirmances; 3 were partial affirmances/partial reversals/vacaturs; 8 were full reversals; 1 was a denial of mandamus; 7 were full vacaturs; 1 was an order of rehearing en banc; and 2 were grants of petitions for review of agency orders.
• 133 of the September opinions were unpublished, including 113 full affirmances/appeal dismissals; 1 partial affirmance/partial reversal/vacatur; 2 full reversals; 4 full vacaturs; 1 certification to a state supreme court; 11 denials/dismissals of petitions to review BIA orders; and 1 denial 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 September? (Judge Duncan). Who was the busiest writer, authoring the most attributed opinions (including majority, concurring, and dissenting opinions)? (Judge Oldham, with 7). Who concurred the most in separate opinions? (Judges Ho and Oldham, with 2 each). Who authored the most dissenting or dubitante opinions? (Judge Willett and Ramirez, with 2 each). How many opinions did the Court issue per curiam, with no author listed? (137, with 129 of those unpublished). Who participated in making the most law, participating in the most panels with published opinions? (Judge Elrod, with 12). 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	3	2				2	1
Jones	31	31	3			9	22
Smith	27	26	1		1	6	21
Stewart	32	32	2			4	28
Elrod	19	18	4	1		12	7
Southwick	30	30	2			9	21
Haynes	30	29		1	1	4	26
Graves	20	18	1		1	3	17
Higginson	26	25	2			6	20
Willett	29	27	2		2	10	19
Ho	38	38	1	2		10	28
Duncan	39	39	1			10	29
Engelhardt	24	24	1			4	20
Oldham	34	34	5	2		9	25
Wilson	27	27	3	1		3	24
Douglas	23	22	1			4	19
Ramirez	27	25		1	2	6	21
Dist. Ct. Judge sitting by designation	5	5	2			5
King	10	9				2	8
Jolly	12	12					12
Higginbotham	11	11				4	7
Davis	6	6		(1 w/o op.)			6
Wiener	29	29	3			10	19
Barksdale	10	10				1	9
Dennis	7	6			1	2	5
Clement	3	3	2			2	1
Unattributed/ Clerk
per curiam			137 (7 with separate concurrence, dissent, or dubitante)			8	129

Conclusions? Most decisions in September, as always, were unanimous, with 9 dissents and 9 concurrences out of 178 opinions. Among senior-status judges, Judge Wiener had the heaviest participation in panels, participating in the same general level of panels as many of the active-status judges. Meanwhile, among active-status judges, the lightest production in September was from Chief Judge Richman.

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