Take the Fifth

At the end of each month, we tally various statistics from opinions released by the U.S. Court of Appeals for the Fifth Circuit. Then, corresponding to the traditional court term start date of October 1 (using the court term employed by the Supreme Court, though the Fifth Circuit itself compiles statistics on a July-to-June year), we aggregate those statistics to note interesting trends for the previous court year (October through September). This is our fourth annual compilation, aggregating statistics from October 2023 through September 2024.

Notable Court changes during this past year include Judge Ramirez taking an active-status seat on the Court, beginning in January 2024. The Court now has 17 active-status judges, with officially 10 senior-status judges (though only 8 of those participate in decision panels). Active-status judges who are currently eligible to take senior-status include Chief Judge Richman and Judges Jones, Smith, Stewart, Southwick, and Graves.

The 2023-2024 statistics are based on 2,413 total opinions (down from the 2,696 total opinions released by the Court in the 2022-2023 year). 1,915 were full affirmances (or appeal dismissals), which, when calculating in the 131 denials of petitions for BIA and other agency orders, resulted in an 84.79% affirmance rate across all appeal types (down slightly from last year’s 87.69% affirmance rate); 90 were partial affirmances/partial reversals/vacaturs; 100 were full reversals; 11 were orders regarding mandamus (5 grants and 6 denials); 97 were full vacaturs; 11 were certifications of questions to state supreme courts; 13 were published orders denying en banc rehearing (down slightly from 15 last year); 6 were grants of en banc rehearing (down from 11 last year); 122 were denials or dismissals of petitions for review of Board of Immigration Appeals decisions; 5 were grants of petitions to review BIA decisions; 7 were denials of petitions to review other agency decisions; 17 were grants of petitions to review other agency decisions (significantly up from only 4 last year); 9 were motion denials; 9 were grants of motions; and 1 was a partial grant/partial denial of a motion.

En banc activity is something we’ve been keeping an eye on. Both the number of published orders denying en banc rehearing (13), which occurs when a member of the Court authors a separate dissent from or concurrence with the denial of rehearing to highlight a particular point involved in the rehearing vote, and the number of grants of en banc rehearing (6) are down from last year (15 and 11, respectively). Making its way through the large number of en banc rehearing grants in the previous year, this Court year the Court issued 12 en banc opinions (10 on the merits and 2 on stay motions pending rehearing).

Notably, there are currently five of the 28 U.S. Supreme Court cases accepted for that Court’s 2024-25 Court Term that are from the Fifth Circuit, continuing the disproportionate representation of Fifth Circuit decisions on the Supreme Court docket from recent years.

Appeals by District Court (or other review origin)

• The most appellate decisions in 2023-24, as in the previous three years, originated out of the Northern District of Texas, with 645. 580 were full affirmances or appeal dismissals, for a 90% affirmance rate; 26 were partial affirmances/partial reversals/vacaturs; 17 were full reversals; 2 were denials of mandamus; 2 were grants of mandamus; 13 were full vacaturs; 2 were certifications to the state supreme court; 2 were published opinions denying en banc rehearing; and 1 was a grant of a motion.
• The next-highest number of appeals originated in the Southern District of Texas, with 495. 408 were full affirmances or appeal dismissals, for an 82% affirmance rate; 17 were partial affirmances/partial reversals/vacaturs; 27 were full reversals; 2 were denials of mandamus; 29 were full vacaturs; 1 was a certification to a state supreme court; 4 were published orders denying en banc rehearing; 2 were orders of en banc rehearing; 1 was a grant of a petition for agency review; 2 were denials of motions; and 2 were grants of motions.
• Next was the Western District of Texas, with 492 total opinions from cases originating there. 417 were full affirmances or appeal dismissals, for an 85% affirmance rate; 18 were partial affirmances/partial reversals/vacaturs; 25 were full reversals; 2 were grants of mandamus; 1 was a denial of mandamus; 19 were full vacaturs; 1 was a certification to the state supreme court; 2 were published orders denying en banc rehearing; 3 were orders of en banc rehearing; 3 were motion denials; and 1 was a grant of a motion.
• Next highest was the Western District of Louisiana, with 175 total opinions from cases originating there. 148 were full affirmances or appeal dismissals, for an 85% affirmance rate; 5 were partial affirmances/partial reversals/vacaturs; 11 were full reversals; 9 were full vacaturs; and 2 were certifications to the state supreme court.
• The Eastern District of Louisiana had the next highest total number of Fifth Circuit opinions, with a total of 142 opinions originating from there. 104 were full affirmances or appeal dismissals, for a 73% affirmance rate; 14 were partial affirmances/partial reversals/vacaturs; 13 were full reversals; 10 were full vacaturs; and 1 was an order of en banc rehearing.
• Next came the Eastern District of Texas, with 126 Fifth Circuit opinions originating from cases there. 103 were full affirmances or appeal dismissals, for an 82% affirmance rate; 3 were partial affirmances/partial reversals/vacaturs; 9 were full reversals; 1 was a grant of mandamus; 4 were full vacaturs; 1 was a certification to the state supreme court; 2 were published denials of en banc rehearing; 2 were denials of motions; and 1 was a grant of a motion.
• The Southern District of Mississippi had the next highest number of Fifth Circuit opinions, with 79. 68 were full affirmances or appeal dismissals, for an 86% affirmance rate; 3 were partial affirmances/partial reversals/vacaturs; 1 was a full reversal; 5 were full vacaturs; 1 was a certification to the state supreme court; and 1 was a denial of a motion.
• The next highest point-of-origin district was the Middle District of Louisiana, with 59 opinions. 46 were full affirmances or appeal dismissals, for a 78% affirmance rate; 2 were partial affirmances/partial reversals/vacaturs; 4 were full reversals; 4 were full vacaturs; 2 were published denials of en banc rehearing; and 1 was a grant of a motion.
• The lowest number of opinions originated from cases from the Northern District of Mississippi, with a total of 39 opinions originating there. 35 were full affirmances or appeal dismissals, for a 90% affirmance rate; 1 was a partial affirmance/partial reversal/vacatur; 1 was a full reversal; and 2 were certifications to the state supreme court.
• In addition to the review of District Court decisions, the Fifth Circuit also reviewed 2 decisions of the U.S. Tax Court in 2023-24, fully affirming both. The Court also engaged in 37 actions on agency decisions, denying petitions to review 7 of those, granting petitions to review 16, affirming 1, denying mandamus in 1, certifying 1 to a state supreme court, entering a published order denying en banc rehearing of 1, ordering en banc rehearing in 1, denying a motion in 1, and granting motions in 3.
• Additionally, the Fifth Circuit reviewed 126 petitions for review of Board of Immigration Appeals decisions (down sharply from the 267 in the previous year), of which 121 were denied or dismissed and 5 were granted, for an “affirmance” rate of 96%.

What the appeals are about

• The largest number of appeals are of criminal conviction and/or sentencing issues. 1,211 resulted in full affirmances/appeal dismissals, for an affirmance rate of 96.2%; 19 were partial affirmances/partial reversals/vacaturs; 2 were full reversals; 2 were denials of mandamus; and 25 were full vacaturs/remands. 96.5% favored the prosecution (1,215 out of 1,259).
• In post-conviction relief cases, including state and federal habeas petitions, there were 39 full affirmances/appeal dismissals, for an 81.3% affirmance rate; 2 full reversals; 4 full vacaturs/remands; and 3 motion denials. 83.3% favored the government/prosecution (40 out of 48).
• In immigration cases, there were 6 full affirmances from district court decisions; 1 full vacatur; 121 dismissals/denials of petitions for review of BIA orders; 5 grants of petitions to review BIA orders; 1 grant of a petition for review of another agency’s action; and 1 motion denial. 94.8% favored the government (128 out of 135).
• In prisoner suits, there were 104 full affirmances/appeal dismissals, for an 85.2% affirmance rate; 6 partial affirmances/partial reversals/vacaturs; 4 full reversals; 5 full vacaturs; 1 denial of a motion; and 2 motion grants. 80.3% favored the government defendants (106 out of 132).
• In commercial – civil cases, there were 145 full affirmances/appeal dismissals, for a 66.2% affirmance rate; 15 partial affirmances/partial reversals/vacaturs; 30 full reversals; 3 grants of mandamus; 1 denial of mandamus; 15 full vacaturs; 6 certifications of questions to state supreme courts; 1 published order denying en banc rehearing; 1 order of en banc rehearing; 1 denial of a petition for review of agency action; and 1 motion denial. 61.9% favored the defendant (135 out of 218).
• In civil rights/constitutional claims (non-prisoner-suits), there were 128 full affirmances/appeal dismissals, for a 74.4% affirmance rate; 13 partial affirmances/partial reversals/vacaturs; 8 full reversals; 10 full vacaturs; 2 certifications to a state supreme court; 4 published orders denying en banc rehearing; 2 orders of en banc rehearing; 2 grants of petitions for review of agency actions; 1 motion denial; and 2 motion grants. 81.4% favored the government defendant (140 out of 172).
• In qualified immunity cases, there was 37 full affirmances, for a 62.7% affirmance rate; 10 partial affirmances/partial reversals/vacaturs; 8 full reversals; 2 full vacaturs; and 2 published orders denying en banc rehearing. 54.2% favored the government defendant (32 out of 59).
• In employment/labor law cases, there were 117 full affirmances/appeal dismissals, for a 73.6% affirmance rate; 14 partial affirmances/partial reversals/vacaturs; 10 full reversals; 1 denial of mandamus; 7 full vacaturs; 2 certifications to state supreme courts; 2 published denials of en banc rehearing; 5 denials of petitions for review of agency decisions; and 4 grants of petitions for review of agency decisions. 79.4% favored the employer (127 out of 160).
• In personal injury/non-commercial tort cases, there were 37 full affirmances/appeal dismissals, for a 78.7% affirmance rate; 3 partial affirmances/partial reversals/vacaturs; 3 full reversals; 3 full vacaturs; and 1 published denial of en banc rehearing. 85.1% favored the defendant (40 out of 47).
• In social security cases, there were 8 full affirmances, for a 100% affirmance rate. 100% favored the Social Security Administration.
• In bankruptcy cases, there were 25 full affirmances, for a 69.4% affirmance rate; 1 partial affirmance/partial reversal/vacatur; 5 full reversals; 4 full vacaturs; and 1 published denial of en banc rehearing. 55.6% favored the debtor (20 out of 36).
• In abortion cases, there was 1 full affirmance, for a 50% affirmance rate; and 1 full vacatur. 50% favored the challenger.
• In arbitration cases, there were 8 full affirmances, for a 50% affirmance rate; 7 full reversals; and 1 full vacatur. 82.4% favored the defendant (14 out of 17).
• In tax law cases, there were 7 full affirmances, for a 77.8% affirmance rate; 1 partial affirmance/partial reversal/vacatur; and 1 full reversal. 77.8% favored the taxing authority (7 out of 9).
• In healthcare law cases (this category includes ACA challenges and vaccine mandate or other COVID-19-related cases), there were 3 full affirmances, for a 33.3% affirmance rate; 3 partial affirmances/partial reversals/vacaturs; 2 full reversals; and 1 full vacatur. 55.6% favored the challenger (5 out of 9).
• In voting/election law cases, there were 8 full affirmances, for a 38.1% affirmance rate; 2 partial affirmances/partial reversals/vacaturs; 4 full reversals; 4 full vacaturs; 2 orders of en banc rehearing; and 1 grant of a motion. 81% favored the government defendant (17 out of 21).
• In environmental law/toxic tort cases, there were 13 full affirmances, for a 46.4% affirmance rate; 4 full reversals; 1 denial of mandamus; 3 full vacaturs; 1 certification to a state supreme court; 1 order of en banc rehearing; 2 denials of petitions for review of agency action; 1 grant of a petition for review of agency action; 1 motion denial; and 1 motion grant. 57.1% favored the defendant (16 out of 28).
• In products liability cases, there were 3 full affirmances, for a 60% affirmance rate; 1 full reversal; and 1 full vacatur. 80% favored the defendant (4 out of 5).
• In maritime law cases, there were 8 full affirmances, for a 57.1% affirmance rate; 2 partial affirmances/partial reversals/vacaturs; 3 full reversals; and 1 full vacatur. 57.1% favored the plaintiff (8 out of 14).
• In attorney discipline appeals, there were 2 full affirmances, for a 40% affirmance rate; 1 full reversal; and 2 full vacaturs. 60% favored the disciplined attorney (3 out of 5).
• In administrative law cases, there were 8 full affirmances and 2 denials of petitions for agency review, for a 40% affirmance rate; 2 partial affirmances/partial reversals/vacaturs; 6 full reversals; 2 grants of mandamus; 1 denial of mandamus; 2 full vacaturs; 2 published denials of en banc rehearing; 1 order of en banc rehearing; 7 grants of petitions for review of agency actions; 1 motion grant; and 1 partial grant/partial denial of a motion. 71.1% favored the plaintiff/challenger (27 out of 38).
• In class action cases, there were 2 full affirmances, for a 28.6% affirmance rate; 1 partial affirmance/partial reversal/vacatur; and 4 full vacaturs. 85.7% favored the defendant (6 out of 7).
• In international law cases, there was 1 full affirmance, for a 25% affirmance rate; 2 full reversals; and 1 full vacatur. 50% favored the plaintiff (2 out of 4).

How much law is being made?

• Of the 2,413 opinions released by the 5th Circuit in 2023-24, 456 were designated for publication, for an 18.9% publication rate. 218 of those were full affirmances; 49 were partial affirmances/partial reversal/vacaturs; 70 were full reversals; 8 were mandamus orders (4 grants and 4 denials); 48 were full vacaturs; 6 were certifications to state supreme courts; 13 were published denials of en banc rehearing; 5 were orders granting en banc rehearing; 8 were denials of petitions for review of BIA orders; 3 were grants of petitions to review BIA orders; 4 were denials of petitions to review other agency decisions; 14 were grants of petitions to review other agency decisions; 7 were grants of motions; 3 were denials of motions; and 1 was a partial grant/partial denial of a motion. The full affirmance rate for published decisions was 47.8%.
• 1,956 of the 2023-24 opinions were unpublished, including 1,697 full affirmances/appeal dismissals; 41 partial affirmances/partial reversals/vacaturs; 30 full reversals; 3 orders on mandamus (1 grant and 2 denials); 49 full vacaturs; 5 certifications of questions to a state supreme court; 1 order of en banc rehearing; 114 denials/dismissals of petitions to review BIA orders; 2 grants of a petition to review BIA orders; 3 denials of petitions to review other agency decisions; 3 grants of petitions to review agency decisions; 2 motion denials; and 6 grants of motions. The full affirmance rate for unpublished decisions was 92.6%.

Who was doing what on the Court?

Who was the busiest, in that they were on the most panels issuing opinions in 2023-24? (Judge Southwick.) Who was the busiest writer, authoring the most attributed opinions? (Judge Higginson, for the fourth year in a row–which jibes with his publicly professed antipathy toward over-use of the “per curiam” attribution.) How many opinions did the Court issue per curiam, with no author listed? (1,972, with 1,911 of those unpublished.) Who participated in making the most law, participating in the most panels with published opinions? (Judge Smith.) Who was the most “independent” judge, voting with the majority and without entering a separate concurring opinion or joining or authoring a dissent, in the lowest percentage of panels? (Chief Judge Richman, at 88.78%, followed by Judge Ho, at 90.42% and Judge Dennis at 90.85%; the highest number of concurring opinions was Judge Ho for the third year in a row, with 14; the highest number of authored dissenting opinions was a tie between Judges Higginson and Oldham, at 12 each, with Judges Dennis and Haynes right behind at 11.) Which judges always voted with the majority opinion, 100% of the time, without even a separate concurrence? (The judges sitting by designation, and Judges Jolly and Barksdale). We have all that below (senior-status judges in italics):

Conclusions? The 2023-24 statistics show that we can often over-emphasize the importance of the composition of the panel, as, with only three exceptions (Richman, Haynes, and Dennis), the Court’s judges voted fully with the majority more than 93% of the time, and most judges are above 97%. We also often over-emphasize the difficulty of gaining a reversal or vacatur on appeal when we look to the overall affirmance rates; depending on the type of case, that rate can come way down.

Judge	On panel	In majority	Author majority	Author concur	Author dissent/ dubitante	Published	Unpublished	Pure Majority percentage (no separate concurrence or dissent)
Richman	98	89	5	2	3	55	43	88.78%
Jones	346	336	23	4	4	73	273	95.95%
Smith	409	391	41		10	125	284	95.60%
Stewart	452	442	18		2	80	372	97.79%
Elrod	324	318	21	7	9	79	245	95.99%
Southwick	468	463	36	2		107	361	98.50%
Haynes	355	341	6	1 (+3 without opinions)	11	74	281	94.93%
Graves	367	346	21	2	10	75	292	93.73%
Higginson	398	384	39	3	12	110	288	95.73%
Willett	358	350	22	4	4	93	265	96.65%
Ho	334	316	6	14	11 (+3 without opinions)	79	255	90.42%
Duncan	371	360	17	2	3	84	287	96.50%
Engelhardt	435	427	17		2	96	339	98.16%
Oldham	427	411	20	8	12	79	348	94.38%
Wilson	453	449	23	1	2	84	369	98.90%
Douglas	342	324	16	1	8	72	270	94.44%
Ramirez	232	224	9	1 (+ 1 without opinion)	3	50	182	95.69%
Dist. Ct. Judge sitting by designation	38	38	7			15	23	100%
King	216	213	5	1		33	183	98.15%
Jolly	129	129	7			6	123	100%
Higginbotham	242	240	13	2	2	51	191	98.35%
Davis	100	100	5	(1 without opinion)		9	91	99%
Wiener	212	209	12		3	44	168	98.58%
Barksdale	140	140	1			13	127	100%
Dennis	142	131	9	1 (+1 without opinion)	11	33	107	90.85%
Clement	142	142	24	2		47	95	98.59%
unattributed	1	1					1
per curiam			1,972 (41 not fully “for the court,” as they included a separate concurrence or dissent)			65	1,911

Wrap it all together, and an opinion in the 2023-24 term was most likely to be an unpublished per curiam affirming a criminal decision from the Northern District of Texas, with Judges Stewart, Southwick, and Wilson on the panel.

A couple of issues with opinion mechanics that we continue to watch: One was use of the “per curiam” author-attribution, particularly where the opinion is not a unanimous opinion and arguably, therefore, not truly “for the court.” There were 41 such instances in the past year, which was up from the 35 in the prior year (even though the total number of opinions was down). The other is the Court’s employment of its rule regarding designation of opinions for publication. For this past year, the percentage of opinions not designated for publication was 81.1%, down from 84.35% last year and 85.47% in the 2021-22 year, but still above the unpublished percentage of 80.27% in 2020-21. We’ll continue to track this.