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 May 2025 statistics are based on 198 total opinions released by the Court (3 fewer than in the previous month):

Where the appeals are coming from

• Only one district court within the Fifth Circuit logged a perfect affirmance rate in May 2025, with all opinions in the Fifth released during the month that originated from that district being affirmances: the Northern District of Mississippi, with 5 affirmances.
• The Northern District of Texas was the district with the most decisions originating from there in May, 51 total decisions. From the district, 40 of those were full affirmances or appeal dismissals; 4 were partial affirmances/partial reversals/vacaturs; 2 were full reversals; 5 full vacaturs; and 1 published denial of en banc rehearing.
• From the Western District of Texas, 20 decisions were full affirmances/appeal dismissals; 2 partial affirmances/partial reversals/vacaturs; 2 full reversals; and 1 full vacatur.
• From decisions from the Southern District of Texas there were 43 full affirmances/appeal dismissals; 2 full reversals; and 5 full vacaturs.
• From the Eastern District of Texas there were 12 full affirmances/appeal dismissals; and 1 order of en banc rehearing.
• From the Eastern District of Louisiana there were 11 full affirmances/appeal dismissals; and 1 full reversal.
• From the Middle District of Louisiana, there were 3 full affirmances/appeal dismissals; and 1 full vacatur.
• From the Western District of Louisiana there were 13 full affirmances/appeal dismissals; and 1 full vacatur.
• From the Southern District of Mississippi, there were 7 full affirmances/appeal dismissals; 1 full reversal; and 1 denial of a motion to vacate a sentence.
• From petitions for review of Board of Immigration Appeal decisions, there were 8 denials.
• From petitions for review of other agency decisions, there were 3 grants of petitions for review; 3 denials of petitions for review; and 1 affirmance of a direct agency appeal.

What the appeals are about, and who they benefit

• The largest number of appeals were of criminal conviction and/or sentencing issues. 107 resulted in full affirmances/appeal dismissals; 2 were full vacaturs; 1 was a published denial of en banc rehearing; and 1 was a denial of a motion to vacate sentence. 108 of the dispositions favored the prosecution, and 2 favored the defendant.
• In post-conviction relief cases, including state and federal habeas petitions, there were 3 full affirmances; and 1 full vacatur. 3 dispositions favored the government, and 1 favored the petitioner.
• In immigration cases, there were 8 dismissals/denials of petitions for review of Board of Immigration Appeals orders. All 8 dispositions favored the government.
• In prisoner suits, there were 2 full affirmances/appeal dismissals. Both dispositions favored the government defendants.
• In commercial – civil cases, there were 10 full affirmances/appeal dismissals; 2 partial affirmances/partial reversals/vacaturs; 1 full reversal; and 4 full vacaturs. 12 of the dispositions favored the defendant, and 5 favored the plaintiff.
• In civil rights/constitutional claims (non-prisoner-suits), there were 7 full affirmances/appeal dismissals; 2 partial affirmances/partial reversals/vacaturs; 3 full reversals; and 3 full vacaturs. 7 of the dispositions favored the defendant, and 8 favored the plaintiff.
• In employment/labor law cases, there were 15 full affirmances/appeal dismissals; 1 partial affirmance/partial reversal/vacatur; 1 denial of a petition to review an agency order; and 1 grant of a petition to review an agency order. 17 of the dispositions favored an employer; and 1 favored the employee.
• In qualified immunity cases, there were 2 full affirmances/appeal dismissals; and 3 full reversals. 4 dispositions favored the government defendants, and 1 favored the plaintiffs.
• In personal injury/non-commercial tort cases, there were 2 full affirmances/appeal dismissals. 1 disposition favored the defendant; and 1 favored the plaintiff.
• In administrative law cases, there was 1 full affirmance; 1 order of en banc rehearing; 1 denial of a petition for review of an agency decision; and 2 grants of petitions for review. 3 dispositions favored the defendant/agency; and 2 favored the challengers.
• In bankruptcy cases, there were 2 full affirmances; 1 full reversal; and 2 full vacaturs. 3 dispositions favored the creditor; and 2 disposition favored the debtor.
• In tax law cases, there was 1 full affirmance. That disposition favored the government.
• In voting/election law cases, there was 1 affirmance. That disposition favored the state.
• In environmental law/toxic torts decisions, there was 1 full affirmance; and 1 denial of a petition for review of an agency decision. Both dispositions favored the defendant.
• In products liability cases, there was 1 full reversal. That disposition favored the defendant.
• In maritime law cases, there was 1 full reversal. That disposition favored the defendant.
• In international law cases, there was 1 full affirmance. That disposition favored the defendant.

How much law is being made?

• Of the 198 opinions released by the 5th Circuit in May 2025, 44 were designated for publication. 18 of those were full affirmances; 3 were partial affirmances/partial reversals/vacaturs; 5 were full reversals; 9 were full vacaturs; 1 was a denial of en banc rehearing; 1 was an order of en banc rehearing; 1 was a denial of a petition for review of a BIA order; 2 were denials of petitions for review of other agency decisions; 3 were grants of a petition for agency review; and 1 was a denial of a motion.
• 154 of the May opinions were unpublished, including 137 full affirmances/appeal dismissals; 3 partial affirmances/partial reversals/vacaturs; 3 full reversals; 4 full vacaturs; 7 denials/dismissals of petitions to review BIA orders; and 1 denial of a petition for review of another agency decision.

Who was doing what on the Court?

Who was the busiest, in that they were on the most panels issuing opinions in May? (Judge Oldham). Who was the busiest writer, authoring the most attributed opinions (including majority, concurring, and dissenting opinions)? (Judge Richman, with 9). Who concurred the most in separate opinions? (Judge Ho, with 4). Who authored the most dissenting or dubitante opinions? (Judges Dennis and Graves, with 2 each). How many opinions did the Court issue per curiam, with no author listed? (155, with 149 of those unpublished; but 3 of the designated “per curiam” decisions were not “true” per curia for the court, as they were accompanied by separate concurrences or dissents). Who participated in making the most law, participating in the most panels with published opinions? (Judge Oldham, with 17). 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	20	20	2	2		12	8
Jones	33	32	2		1	10	23
Smith	31	30	3			7	24
Stewart	28	27				6	22
Richman	21	19	8		1	7	14
Southwick	27	26	3			9	18
Haynes	33	32			1	6	27
Graves	41	38	3	1	2	9	32
Higginson	35	34	4	1	1	10	25
Willett	33	31	1	1	1	8	25
Ho	28	28	3	4		7	21
Duncan	33	32	2	1		8	25
Engelhardt	33	32	1			10	23
Oldham	46	44	5	1	1	17	29
Wilson	31	30	2			9	22
Douglas	38	37	1			9	29
Ramirez	29	28	1			7	22
Dist. Ct. Judge sitting by designation	1	1					1
King	19	19				5	14
Jolly	12	12					12
Higginbotham	19	19	2			8	11
Davis	7	7					7
Wiener	13	12				2	11
Barksdale	6	6					6
Dennis	12	10			2	3	9
Clement	7	7	1			3	4
Unattributed/ Clerk
per curiam			155			6	149

Conclusions? Most decisions in May, as always, were unanimous, with 10 dissents and 11 concurrences out of 198 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 May was from Chief Judge Elrod.

Wrap it all together, and an opinion in May 2025 was most likely to be an unpublished per curiam affirming a criminal decision from the Northern District of Texas, with Judges Oldham, Graves, and Higginson on the panel.