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 November 2024 statistics are based on 171 total opinions released by the Court (15 fewer than in the previous month).

Where the appeals are coming from

• The Middle District of Louisiana and the Northern District of Mississippi each had a perfect affirmance rate in decisions issued by the Fifth Circuit in November 2024, with 6 full affirmances of decisions originating from the Middle District of Louisiana and 2 full affirmances of Northern District of Mississippi decisions.
• The Northern District of Texas was the district with the most decisions originating from there in November, 44 total decisions. From the district, 41 of those were full affirmances or appeal dismissals; 1 was a partial affirmance/partial reversal/vacatur; and 2 were full vacaturs.
• From the Western District of Texas, 29 decisions were full affirmances/appeal dismissals; 2 were partial affirmances/partial reversals/vacaturs; 3 were full reversals; and 4 were full vacaturs.
• From decisions from the Southern District of Texas there were 24 full affirmances/appeal dismissals; 1 partial affirmance/partial reversal/vacatur; 4 full vacaturs; and 1 grant of a motion.
• From the Eastern District of Texas there were 6 full affirmances/appeal dismissals; 1 full reversal; and 1 grant of a motion.
• From the Eastern District of Louisiana there were 7 full affirmances/appeal dismissals; 1 partial affirmance/partial reversal/vacatur; 1 full reversal; and 1 published denial of a petition for en banc rehearing.
• From the Western District of Louisiana, there were 16 full affirmances/appeal dismissals; 1 full reversal; 1 full vacatur; and 1 published denial of a petition for en banc rehearing.
• From the Southern District of Mississippi, there were 4 full affirmances; 1 full reversal; 1 full vacatur; and 1 published denial of a petition for en banc rehearing.
• From petitions for review of Board of Immigration Appeal decisions, there were 5 denials; and 1 grant.
• From appeals of or petitions for review of other agency actions, there was 1 affirmance; 1 grant of a petition for review of an agency order; and 1 denial of a petition for review of an agency order.

What the appeals are about, and who they benefit

• The largest number of appeals were of criminal conviction and/or sentencing issues. 87 resulted in full affirmances/appeal dismissals; 3 were partial affirmances/partial reversals/vacaturs; 2 were full reversals; and 5 were full vacaturs. 88 of the dispositions favored the prosecution, and 9 favored the defendant.
• In post-conviction relief cases, including state and federal habeas petitions, there were 4 full affirmances. All 4 dispositions favored the government.
• In immigration cases, there were 5 dismissals/denials of petitions for review of Board of Immigration Appeals orders; and 1 grant of a petition for review of a BIA order. 5 dispositions favored the government; and 1 disposition favored the immigrant.
• In prisoner suits, there were 10 full affirmances/appeal dismissals; 1 partial affirmance/partial reversal/vacatur; and 1 full reversal. 10 dispositions favored the government defendants; and 2 favored the prisoner.
• In commercial – civil cases, there were 7 full affirmances/appeal dismissals; 1 partial affirmance/partial reversal/vacatur; 1 full reversal; and 2 full vacaturs. 5 of the dispositions favored the defendant, and 6 favored the plaintiff.
• In civil rights/constitutional claims (non-prisoner-suits), there were 12 full affirmances/appeal dismissals; 1 full reversal; 2 full vacaturs; and 1 published denial of en banc rehearing. 13 of the dispositions favored the defendant, and 4 favored the plaintiff.
• In employment/labor law cases, there were 8 full affirmances/appeal dismissals; and 1 denial of a petition for review of agency action. 8 of the dispositions favored an employer, and 1 favored the employees.
• In qualified immunity cases, there was 1 full affirmance/appeal dismissal. That 1 disposition favored the defendant.
• In personal injury/non-commercial tort cases, there was 1 full vacatur. That 1 disposition favored the plaintiff.
• In administrative law cases, there were 2 full affirmances; and 1 full reversal. 2 dispositions favored the defendant/agency; and 1 favored the challengers.
• In bankruptcy cases, there were 4 full affirmances. All 4 dispositions favored the creditor.
• In arbitration cases, there was 1 full affirmance. That 1 disposition favored the plaintiff.
• In maritime law cases, there was 1 full affirmance; 1 full reversal; and 1 grant of a motion. 1 disposition favored the defendant; and 2 dispositions favored the plaintiff.
• In attorney discipline cases, there was 1 grant of an motion. That 1 disposition favored the sanctioning court.
• In environmental law/toxic tort cases, there was 1 published denial of en banc rehearing. That 1 disposition favored the plaintiff.

How much law is being made?

• Of the 171 opinions released by the 5th Circuit in November 2024, 28 were designated for publication. 12 of those were full affirmances; 1 was a partial affirmance/partial reversal/vacatur; 5 were full reversals; 5 were full vacaturs; 2 were published denials of en banc rehearing; 1 was a denial of a petition to review an agency order; 1 was a grant of a petition for review of an agency order; and 1 was a grant of a motion.
• 144 of the November opinions were unpublished, including 124 full affirmances/appeal dismissals; 8 partial affirmances/partial reversals/vacaturs; 2 full reversals; 7 full vacaturs; 5 denials/dismissals of petitions to review BIA orders; 1 grant of a petition for review of a BIA order; 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 November? (Judge Willett). Who was the busiest writer, authoring the most attributed opinions (including majority, concurring, and dissenting opinions)? (Judges Richman and Oldham, with 4 each). Who concurred the most in separate opinions? (Judges Richman, Oldham, Higginbotham, and Wiener, with 1 each). Who authored the most dissenting or dubitante opinions? (Judge Richman, with 2). How many opinions did the Court issue per curiam, with no author listed? (143, with 134 of those unpublished). Who participated in making the most law, participating in the most panels with published opinions? (Judge Jones, with 13). 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	14	12			1	8	6
Jones	31	28	3			13	18
Smith	23	21	3			6	17
Stewart	21	21				4	17
Richman	9	6	1	1	2	6	3
Southwick	35	34				9	26
Haynes	32	31	1		1	5	27
Graves	24	24				3	21
Higginson	30	28	2		1	10	20
Willett	36	32	1		1	9	27
Ho	29	26	1		2 (+1 w/o op.)	7	22
Duncan	31	27	1		1	7	24
Engelhardt	27	26	1			7	20
Oldham	24	21	2	1	1	9	15
Wilson	31	29				6	25
Douglas	25	24	2			7	18
Ramirez	25	24	1		1	4	21
Dist. Ct. Judge sitting by designation	3	3	1			1	2
King	17	17	1			2	15
Jolly	8	8					8
Higginbotham	10	10		1		2	8
Davis	3	3				1	2
Wiener	21	21	1	1			21
Barksdale	14	14				1	13
Dennis	14	13			1	3	11
Clement	7	7				2	5
Unattributed/ Clerk
per curiam			143 (4 with separate concurrence, dissent, or dubitante)			9	134

Conclusions? Most decisions in November, as always, were unanimous, with 13 dissents and 4 concurrences out of 171 opinions. Among senior-status judges, Judges King and Higginbotham had the heaviest participation in panels. Meanwhile, among active-status judges, the lightest production in November was from Judge Richman.

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