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 February 2025 statistics are based on 244 total opinions released by the Court (70 more than in the previous month).

Where the appeals are coming from

• The Middle District of Louisiana, Southern District of Mississippi, and the Northern District of Mississippi had perfect affirmance rates in decisions issued by the Fifth Circuit in February 2025. The Middle District of Louisiana had 5 full affirmances (or appeal dismissals) on Fifth Circuit decisions originating from there; the Southern District of Mississippi had 8 full affirmances/appeal dismissals and 1 published denial of en banc rehearing; and the Northern District of Mississippi had 2 full affirmances/appeal dismissals.
• The Western District of Texas was the district with the most decisions originating from there in February, 63 total decisions. From the district, 59 of those were full affirmances or appeal dismissals; 2 were partial affirmances/partial reversals/vacaturs; 1 was a full reversal; and 1 was a published denial of en banc rehearing.
• From the Northern District of Texas, 56 decisions were full affirmances/appeal dismissals; 1 was a partial affirmance/partial reversal/vacatur; 2 were full reversals; and 2 were full vacaturs.
• From decisions from the Southern District of Texas there were 35 full affirmances/appeal dismissals; 2 partial affirmances/partial reversals/vacaturs; 1 full reversal; 1 full vacatur; 1 published denial of en banc rehearing; 1 denial of a motion; and 1 grant of a motion.
• From the Eastern District of Texas, there were 11 full affirmances/appeal dismissals; and 1 full vacatur.
• From the Eastern District of Louisiana there were 17 full affirmances/appeal dismissals; and 2 full vacaturs.
• From the Western District of Louisiana, there were 18 full affirmances/appeal dismissals; and 3 full vacaturs.
• From petitions for review of Board of Immigration Appeal decisions, there were 10 denials.

What the appeals are about, and who they benefit

• The largest number of appeals were of criminal conviction and/or sentencing issues. 139 resulted in full affirmances/appeal dismissals; 1 was a partial affirmance/partial reversal/vacatur; 3 were full vacaturs; and 1 was a published denial of en banc rehearing. 139 of the dispositions favored the prosecution, and 5 favored the defendant.
• In post-conviction relief cases, including state and federal habeas petitions, there were 6 full affirmances; 1 full vacatur; and 1 denial of a motion. 7 dispositions favored the government; and 1 favored the petitioner.
• In immigration cases, there was 1 full affirmance; and 10 dismissals/denials of petitions for review of Board of Immigration Appeals orders. All 11 dispositions favored the government.
• In prisoner suits, there were 10 full affirmances/appeal dismissals; and 1 full vacatur. 10 dispositions favored the government defendants; and 1 favored the prisoner.
• In commercial – civil cases, there were 16 full affirmances/appeal dismissals; 2 partial affirmances/partial reversals/vacaturs; and 1 full reversal. 16 of the dispositions favored the defendant, and 3 favored the plaintiff.
• In civil rights/constitutional claims (non-prisoner-suits), there were 13 full affirmances/appeal dismissals; 1 full reversal; 3 full vacaturs; and 2 published denials of en banc rehearing. 14 of the dispositions favored the defendant, and 5 favored the plaintiff.
• In employment/labor law cases, there were 13 full affirmances/appeal dismissals; and 1 partial affirmance/partial reversal/vacatur. All 14 of the dispositions favored an employer.
• In qualified immunity cases, there were 2 full affirmances/appeal dismissals; 1 partial affirmance/partial reversal/vacatur; 1 full reversal; and 1 full vacatur. 2 dispositions favored the government defendants, and 3 favored the plaintiffs.
• In personal injury/non-commercial tort cases, there were 2 full affirmances/appeal dismissals. Both dispositions favored the defendant.
• In administrative law cases, there were 1 full reversal; and 1 grant of a motion. 1 disposition favored the defendant/agency; and 1 favored the challengers.
• In bankruptcy cases, there were 4 full affirmances. All 4 dispositions favored the creditor.
• In maritime law cases, there was 1 full affirmance. That 1 disposition favored the defendant.
• In social security cases, there was 1 full affirmance. That disposition favored the government.
• In international law cases, there was 1 full affirmance. That disposition favored the plaintiff.

How much law is being made?

• Of the 244 opinions released by the 5th Circuit in February 2025, 25 were designated for publication. 15 of those were full affirmances; 2 were partial affirmances/partial reversals/vacaturs; 1 was a full reversal; 3 were full vacaturs; 3 were published denials of en banc rehearing; and 1 was a denial of a petition for review of a BIA decision.
• 218 of the February opinions were unpublished, including 195 full affirmances/appeal dismissals; 3 partial affirmances/partial reversals/vacaturs; 3 full reversals; 6 full vacaturs; 9 denials/dismissals of petitions to review BIA orders; 1 denial of a motion; 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 February? (Judge Stewart). Who was the busiest writer, authoring the most attributed opinions (including majority, concurring, and dissenting opinions)? (Judge Ho, with 6). Who concurred the most in separate opinions? (Judge Ho, with 2). Who authored the most dissenting or dubitante opinions? (Judges Jones, Haynes, Graves, Higginson, Ho, and Douglas, with 1 each; Judge Haynes dissented in 1 other case without separate opinion). How many opinions did the Court issue per curiam, with no author listed? (217, with 212 of those unpublished). Who participated in making the most law, participating in the most panels with published opinions? (Judges Higginson and Ho, with 9 each). 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	23	22	2			6	17
Jones	42	43	1		1	7	38
Smith	33	32				7	26
Stewart	47	46				4	43
Richman	16	16	1			4	12
Southwick	46	46				6	40
Haynes	36	34			1 (+1 w/o opinion)	4	32
Graves	41	39			1	6	35
Higginson	31	30	3		1	9	22
Willett	46	46		(1 w/o opinion)		7	39
Ho	43	42	3	2	1	9	34
Duncan	41	40	2			6	35
Engelhardt	32	31	2			4	28
Oldham	46	45		1		5	41
Wilson	33	33	4			8	25
Douglas	29	27			1	8	21
Ramirez	37	36	1			4	33
Dist. Ct. Judge sitting by designation	1	1					1
King	28	28					28
Jolly	17	17					17
Higginbotham	27	27				3	24
Davis	8	8				3	5
Wiener	16	16					16
Barksdale	15	15	1			2	13
Dennis	14	14				2	12
Clement	11	11				2	9
Unattributed/ Clerk
per curiam			217			5	212

Conclusions? Most decisions in February, as always, were unanimous, with 7 dissents and 4 concurrences out of 244 opinions. Among senior-status judges, Judges King and Higginbotham had the heaviest participation in panels, with as much as some of the active-status judges. Meanwhile, among active-status judges, the lightest production in February was from Judge Richman.

Wrap it all together, and an opinion in February 2025 was most likely to be an unpublished per curiam affirming a criminal decision from the Western District of Texas, with Judges Stewart, Southwick, and either Willett or Oldham on the panel.