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 October 2024 statistics are based on 186 total opinions released by the Court (8 more than in the previous month).

Where the appeals are coming from

• No district court in the Circuit had a perfect affirmance rate in the month of October.
• The Northern District of Texas was the district with the most decisions originating from there in October, 45 total decisions. From the district, 42 of those were full affirmances or appeal dismissals; 1 was a full reversal; 1 was a full vacatur; and 1 was the grant of a motion.
• From the Western District of Texas, 30 decisions were full affirmances/appeal dismissals; 3 were partial affirmances/partial reversals/vacaturs; 1 was a full reversal; 1 was a full vacatur; 1 was an order of en banc rehearing; and 1 was a grant of a motion.
• From decisions from the Southern District of Texas there were 25 full affirmances/appeal dismissals; 2 partial affirmances/partial reversals/vacaturs; 1 full reversal; 2 full vacaturs; and 1 published denial of en banc rehearing.
• From the Eastern District of Texas there were 15 full affirmances/appeal dismissals; 1 partial affirmance/partial reversal/vacatur; 1 full reversal; and 1 full vacatur.
• From the Western District of Louisiana, there were 13 full affirmances/appeal dismissals; 2 partial affirmances/partial reversals/vacaturs; and 1 full vacatur.
• From the Eastern District of Louisiana, there were 7 full affirmances/appeal dismissals; and 2 partial affirmances/partial reversals/vacaturs.
• From the Middle District of Louisiana, there were 4 full affirmances; and 1 full vacatur.
• From the Southern District of Mississippi, there were 5 full affirmances; 1 partial affirmance/partial reversal/vacatur; and 1 full reversal.
• From the Northern District of Mississippi, there were 2 full affirmances or appeal dismissals; 1 full reversal; and 1 full vacatur.
• From the U.S. Tax Court, there were 2 full affirmances.
• From petitions for review of Board of Immigration Appeal decisions, there were 8 denials; and 1 grant.
• From appeals of or petitions for review of other agency actions, there was 1 grant of a petition for review of an agency order.
• In direct proceedings before the Court, there was 1 grant of a motion for suspension to practice in front of the Court.

What the appeals are about, and who they benefit

• The largest number of appeals were of criminal conviction and/or sentencing issues. 92 resulted in full affirmances/appeal dismissals; 5 were partial affirmances/partial reversals/vacaturs; 3 were full vacaturs; and 1 was an order of en banc rehearing. 94 of the dispositions favored the prosecution, and 7 favored the defendant.
• In post-conviction relief cases, including state and federal habeas petitions, there were 6 full affirmances. All 6 dispositions favored the government.
• In immigration cases, there was 1 full affirmance of a court decision, 8 dismissals/denials of petitions for review of Board of Immigration Appeals orders; and 1 grant of a petition for review of a BIA order. 9 dispositions favored the government; and 1 disposition favored the immigrant.
• In prisoner suits, there were 9 full affirmances/appeal dismissals; and 1 full vacatur. 9 dispositions favored the government defendants; and 1 favored the prisoner.
• In commercial – civil cases, there were 7 full affirmances/appeal dismissals; 3 partial affirmances/partial reversals/vacaturs; and 1 full vacatur. 8 of the dispositions favored the defendant, and 3 favored the plaintiff.
• In civil rights/constitutional claims (non-prisoner-suits), there were 7 full affirmances/appeal dismissals; 1 partial affirmance/partial reversal/vacatur; 2 full vacaturs; and 1 grant of a motion. 9 of the dispositions favored the defendant, and 2 favored the plaintiff.
• In employment/labor law cases, there were 8 full affirmances/appeal dismissals; 1 partial affirmance/partial reversal/vacatur; 1 full reversal; 1 published denial of en banc rehearing; and 1 grant of a petition for review of agency action. 9 of the dispositions favored an employer, and 3 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 3 full affirmances; and 1 full vacatur. All 4 dispositions favored the defendant.
• In administrative law cases, there was 1 full affirmance; 1 partial affirmance/partial reversal/vacatur; and 1 full reversal. 1 disposition favored the defendant/agency; and 2 favored the challengers.
• In voting/election law cases, there was 1 full reversal; and 1 grant of a motion. Both dispositions favored the challengers of the states’ election laws.
• In bankruptcy cases, there was 1 full affirmance. The 1 disposition favored the creditor.
• In arbitration cases, there was 1 full reversal. That one disposition favored the defendant.
• In tax cases, there were 2 full affirmances; and 1 full reversal. All 3 dispositions favored the government.
• In social security cases, there were 2 full affirmances. Both dispositions favored the Social Security Administration.
• In maritime law cases, there was 1 full affirmance. That one affirmance favored the defendant.
• In attorney discipline cases, there was 1 grant of an order of suspension.

How much law is being made?

• Of the 186 opinions released by the 5th Circuit in October 2024, 30 were designated for publication. 9 of those were full affirmances; 7 were partial affirmances/partial reversals/vacaturs; 6 were full reversals; 1 was a full vacatur; 1 was a published denial of en banc rehearing; 1 was an order of rehearing en banc; 1 was a denial of a petition to review a BIA order; 1 was a grant of a petition to review a BIA order; 1 was a grant of a petition for review of another agency order; and 2 were grants of motions.
• 155 of the October opinions were unpublished, including 136 full affirmances/appeal dismissals; 4 partial affirmances/partial reversals/vacaturs; 7 full vacaturs; 7 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 October? (Judges Stewart and Southwick). Who was the busiest writer, authoring the most attributed opinions (including majority, concurring, and dissenting opinions)? (Judge Higginson, with 5). Who concurred the most in separate opinions? (Judges Southwick and Ramirez, with 1 each). Who authored the most dissenting or dubitante opinions? (Judge Dennis, with 2). How many opinions did the Court issue per curiam, with no author listed? (154, with 151 of those unpublished). Who participated in making the most law, participating in the most panels with published opinions? (Judge Wilson, with 10). We have all that below (senior-status judges in italics):

Judge	On panel	In majority	Author majority	Author concur	Author dissent/ dubitante	Published	Unpublished
Elrod	8	7	2			5	3
Jones	32	32	1			8	24
Smith	25	24				5	20
Stewart	40	39				6	34
Richman	9	8	1			2	7
Southwick	40	39	1	1		7	33
Haynes	31	30	2	(1 w/o op.)		4	27
Graves	27	25			1	4	23
Higginson	32	31	5			7	25
Willett	24	23	2			6	18
Ho	21	21	1			4	17
Duncan	28	27	1			8	20
Engelhardt	32	32	2			7	25
Oldham	28	27	2		1	4	24
Wilson	28	28	3			10	18
Douglas	31	30	1			5	26
Ramirez	26	25	1	1		4	22
Dist. Ct. Judge sitting by designation	12	12				3	9
King	20	20	1			2	18
Jolly	7	7					7
Higginbotham	26	26				2	24
Davis	9	9					9
Wiener	14	14	2			1	13
Barksdale	6	6					6
Dennis	13	11	1		2	4	9
Clement	12	12	1			6	6
Unattributed/ Clerk
per curiam			154 (3 with separate concurrence, dissent, or dubitante)			3	151

Conclusions? Most decisions in October, as always, were unanimous, with 4 dissents and 3 concurrences out of 186 opinions. Among senior-status judges, Judge Higginbotham had the heaviest participation in panels, and he and Judge King participated in the same general level of panels as many of the active-status judges. Meanwhile, among active-status judges, the lightest production in October was from Chief Judge Elrod and Judge Richman.

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