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 fifth annual compilation, aggregating statistics from October 2024 through September 2025.

Notable Court changes during this past year include Judge Elrod elevating to Chief Judge in place of Judge Richman (who remains active-status); and, although he had not been participating on panels for some time, Judge Duhe had remained on the roster of senior-status judges, but he passed away on May 16 this year. The Court now has 17 active-status judges, with officially 8 senior-status judges. Active-status judges who are currently eligible to take senior-status include Judges Jones, Smith, Stewart, Richman, Southwick, Graves, and Engelhardt (while Judge Ramirez’s age-plus-years-as-a-judge also meets the “Rule of 80,” 21 of her years of service were as a magistrate judge, which do not meet the years-of-service requirement in 28 U.S.C. § 371).

The 2024-2025 statistics are based on 2,424 total opinions (only 9 than from the 2,413 total opinions released by the Court in the 2023-2024 year). 1,980 were full affirmances (or appeal dismissals), which, when calculating in the 129 denials of petitions for BIA and other agency orders, resulted in an 87% affirmance rate across all appeal types (up from last year’s 84.79% affirmance rate); 79 were partial affirmances/partial reversals/vacaturs; 99 were full reversals; 2 were orders regarding mandamus (both grants); 104 were full vacaturs; 3 were certifications of questions to state supreme courts; 12 were published orders denying en banc rehearing (down slightly from 13 last year); 7 were grants of en banc rehearing (up slightly from 6 last year); 123 were denials or dismissals of petitions for review of Board of Immigration Appeals decisions; 7 were grants of petitions to review BIA decisions; 6 were denials of petitions to review other agency decisions; 12 were grants of petitions to review other agency decisions; 2 were motion denials; and 4 were grants of motions.

There are currently six of the 33 U.S. Supreme Court cases accepted for that Court’s 2025-26 Court Term that are from the Fifth Circuit (a seventh was dismissed from the Supreme Court’s merits docket), only slightly disproportionate representation of Fifth Circuit decisions on the Supreme Court docket that has been more pronounced in recent years.

Appeals by District Court (or other review origin)

• The most appellate decisions in 2024-25, as in the previous four years, originated out of the Northern District of Texas, with 623. 563 were full affirmances or appeal dismissals, for a 90.37% affirmance rate; 11 were partial affirmances/partial reversals/vacaturs; 20 were full reversals; 1 was a grant of mandamus; 21 were full vacaturs; 1 was a certification to the state supreme court; 2 were published opinions denying en banc rehearing; 3 were grants of 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 436. 364 were full affirmances or appeal dismissals, for an 83.49% affirmance rate; 19 were partial affirmances/partial reversals/vacaturs; 20 were full reversals; 27 were full vacaturs; 2 were published orders denying en banc rehearing; 1 was a denial of a motion; and 3 were grants of motions.
• Next was the Western District of Texas, with 322 total opinions from cases originating there. 251 were full affirmances or appeal dismissals, for a 77.95% affirmance rate; 21 were partial affirmances/partial reversals/vacaturs; 25 were full reversals; 19 were full vacaturs; 2 were published orders denying en banc rehearing; 2 were orders of en banc rehearing; and 2 were grants of motions.
• Next highest was the Western District of Louisiana, with 180 total opinions from cases originating there. 154 were full affirmances or appeal dismissals, for an 85.56% affirmance rate; 8 were partial affirmances/partial reversals/vacaturs; 4 were full reversals; 12 were full vacaturs; 1 was a certification to the state supreme court; and 1 was a published denial of en banc rehearing.
• The Eastern District of Texas had the next highest total number of Fifth Circuit opinions, with a total of 158 opinions originating from there. 138 were full affirmances or appeal dismissals, for an 87.34% affirmance rate; 5 were partial affirmances/partial reversals/vacaturs; 2 were full reversals; 9 were full vacaturs; 1 was an order of en banc rehearing; 1 was a denial of a motion; and 2 were grants of motions.
• Next came the Eastern District of Louisiana, with 137 Fifth Circuit opinions originating from cases there. 114 were full affirmances or appeal dismissals, for an 83.21% affirmance rate; 8 were partial affirmances/partial reversals/vacaturs; 10 were full reversals; 3 were full vacaturs; and 2 were published denials of en banc rehearing.
• The Southern District of Mississippi had the next highest number of Fifth Circuit opinions, with 109. 87 were full affirmances or appeal dismissals, for a 79.82% affirmance rate; 2 were partial affirmances/partial reversals/vacaturs; 9 were full reversals; 6 were full vacaturs; 1 was a certification to the state supreme court; 3 were published denials of en banc rehearing; and 1 was a denial of a motion.
• The next highest point-of-origin district was the Middle District of Louisiana, with 60 opinions. 45 were full affirmances or appeal dismissals, for a 75% affirmance rate; 1 was a partial affirmance/partial reversal/vacatur; 5 were full reversals; 1 was a grant of mandamus; 6 were full vacaturs; 1 was a published denial of en banc rehearing; and 1 was an order of en banc rehearing.
• The lowest number of opinions originated from cases from the Northern District of Mississippi, with a total of 37 opinions originating there. 29 were full affirmances or appeal dismissals, for a 78.38% affirmance rate; 1 was a partial affirmance/partial reversal/vacatur; 6 were full reversals; and 1 was a full vacatur.
• In addition to the review of District Court decisions, the Fifth Circuit also reviewed 4 decisions of the U.S. Tax Court in 2024-25, fully affirming all 4. The Court also engaged in 28 actions on agency decisions, denying petitions to review 12 of those, granting petitions to review 13, affirming 2 in direct appeals, and reversing 1 on a direct appeal.
• Additionally, the Fifth Circuit reviewed 129 petitions for review of Board of Immigration Appeals decisions, of which 123 were denied or dismissed and 6 were granted, for an “affirmance” rate of 95.35%.

What the appeals are about

• The largest number of appeals are of criminal conviction and/or sentencing issues. 1,298 resulted in full affirmances/appeal dismissals, for an affirmance rate of 94.33%; 21 were partial affirmances/partial reversals/vacaturs; 13 were full reversals; 40 were full vacaturs/remands; 2 were published denials of en banc rehearing; 1 was an order of en banc rehearing; and 1 was a denial of a motion. 94.11% favored the prosecution (1,295 out of 1,376).
• In post-conviction relief cases, including state and federal habeas petitions, there were 50 full affirmances/appeal dismissals, for an 81.97% affirmance rate; 1 partial affirmance/partial reversal/vacatur; 4 full reversals; 2 full vacaturs; 1 order of en banc rehearing; 2motion denials; and 1 grant of a motion. 88.52% favored the government/prosecution (54 out of 61).
• In immigration cases, there were 3 full affirmances and 1 full reversal from district court decisions; 1 order of en banc rehearing; 123 dismissals/denials of petitions for review of BIA orders; and 6 grants of petitions to review BIA orders. 94.03% favored the government (126 out of 134).
• In prisoner suits, there were 87 full affirmances/appeal dismissals, for an 86.14% affirmance rate; 3 partial affirmances/partial reversals/vacaturs; 4 full reversals; 5 full vacaturs; 1 published denial of en banc rehearing; and 1 grant of en banc rehearing. 88.12% favored the government defendants (89 out of 101).
• In commercial – civil cases, there were 133 full affirmances/appeal dismissals, for a 73.08% affirmance rate; 17 partial affirmances/partial reversals/vacaturs; 15 full reversals; 1 grant of mandamus; 12 full vacaturs; 1 certification of questions to a state supreme court; 1 order of en banc rehearing; 1 denial of a petition for review of agency action; and 1 motion grant. 68.13% favored the defendant (124 out of 182).
• In civil rights/constitutional claims (non-prisoner-suits), there were 134 full affirmances/appeal dismissals, for a 73.22% affirmance rate; 10 partial affirmances/partial reversals/vacaturs; 14 full reversals; 1 grant of mandamus; 17 full vacaturs; 1 certification to a state supreme court; 4 published orders denying en banc rehearing; 1 order of en banc rehearing; and 1 motion grant. 79.78% favored the government defendant (146 out of 183).
• In qualified immunity cases, there was 38 full affirmances, for a 60.32% affirmance rate; 6 partial affirmances/partial reversals/vacaturs; 16 full reversals; 2 full vacaturs; and 1 published order denying en banc rehearing. 71.43% favored the government defendant (45 out of 63).
• In employment/labor law cases, there were 110 full affirmances/appeal dismissals, for a 78.57% affirmance rate; 12 partial affirmances/partial reversals/vacaturs; 7 full reversals; 4 full vacaturs; 1 published denial of en banc rehearing; 4 denials of petitions for review of agency decisions; and 2 grants of petitions for review of agency decisions. 81.43% favored the employer (114 out of 140).
• In personal injury/non-commercial tort cases, there were 33 full affirmances/appeal dismissals, for an 80.49% affirmance rate; 1 partial affirmance/partial reversal/vacatur; 3 full reversals; 3 full vacaturs; and 1 certification to a state supreme court. 80.49% favored the defendant (33 out of 41).
• In social security cases, there were 14 full affirmances, for a 100% affirmance rate. 100% favored the Social Security Administration.
• In bankruptcy cases, there were 27 full affirmances, for a 71.05% affirmance rate; 1 partial affirmance/partial reversal/vacatur; 6 full reversals; and 4 full vacaturs. 73.68% favored the debtor (28 out of 38).
• In arbitration cases, there were 6 full affirmances, for a 42.86% affirmance rate; 1 partial affirmance/partial reversal/vacatur; 5 full reversals; and 2 full vacaturs. 57.14% favored the defendant (8 out of 14).
• In tax law cases, there were 7 full affirmances, for an 87.5% affirmance rate; and 1 full reversal. 100% favored the taxing authority.
• 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 50% affirmance rate; 1 full reversal; 1 full vacatur; and 1 published denial of en banc rehearing. 83.33% favored the defendant (5 out of 6).
• In voting/election law cases, there were 2 full affirmances, for a 28.57% affirmance rate; 3 full reversals; 1 published denial of en banc rehearing; and 1 grant of a motion. 42.86% favored the government defendant (3 out of 7).
• In environmental law/toxic tort cases, there were 5 full affirmances, for a 41.67% affirmance rate; 3 full reversals; 1 published denial of en banc rehearing; and 3 denials of petitions for review of agency action. 58.33% favored the defendant (7 out of 12).
• In products liability cases, there were 6 full affirmances, for an 85.71% affirmance rate; and 1 full reversal. 85.71% favored the defendant (6 out of 7).
• In maritime law cases, there were 7 full affirmances, for a 63.64% affirmance rate; 1 partial affirmance/partial reversal/vacatur; 1 full reversal; 1 full vacatur; and 1 motion grant. 54.55% favored the defendant (6 out of 11).
• In attorney discipline appeals, there was 1 full affirmance, for a 25% affirmance rate; 1 full vacatur; and 2 grants of motions. 75% favored the defendant (3 out of 4).
• In administrative law cases, there were 14 full affirmances and 2 denials of petitions for agency review, for a 37.84% affirmance rate; 1 partial affirmance/partial reversal/vacatur; 4 full reversals; 3 full vacaturs; 1 order of en banc rehearing; 2 denials of petitions for review of agency actions; 10 grants of petitions for review of agency actions; and 2 motion grants. 37.84% favored the plaintiff/challenger (14 out of 37).
• In class action cases, there were 3 full vacaturs, for a 0% affirmance rate. 33.33% favored the defendant (1 out of 3).
• In international law cases, there were 4 full affirmances, for a 67.67% affirmance rate; and 2 full reversals. 33.33% favored the defendant (2 out of 6).

How much law is being made?

• Of the 2,424 opinions released by the 5th Circuit in 2024-25, 420 were designated for publication, for a 17.33% publication rate. 216 of those were full affirmances; 44 were partial affirmances/partial reversal/vacaturs; 65 were full reversals; 2 were mandamus grants; 37 were full vacaturs; 3 were certifications to state supreme courts; 12 were published denials of en banc rehearing; 7 were orders granting en banc rehearing; 9 were denials of petitions for review of BIA orders; 4 were grants of petitions to review BIA orders; 3 were denials of petitions to review other agency decisions; 12 were grants of petitions to review other agency decisions; 4 were grants of motions; and 2 were denials of motions. The full affirmance rate for published decisions was 51.43%.
• 2,026 of the 2024-25 opinions were unpublished, including 1,764 full affirmances/appeal dismissals; 35 partial affirmances/partial reversals/vacaturs; 34 full reversals; 67 full vacaturs; 114 denials/dismissals of petitions to review BIA orders; 3 grants of a petition to review BIA orders; 3 denials of petitions to review other agency decisions; 1 motion denial; and 5 grants of motions. The full affirmance rate for unpublished decisions was 87.07%.

Who was doing what on the Court?

Who was the busiest, in that they were on the most panels issuing opinions in 2024-25? (Judge Stewart.) Who was the busiest writer, authoring the most attributed opinions? (Judge Higginson, for the fifth 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? (2,012, with 1,954 of those unpublished.) Who participated in making the most law, participating in the most panels with published opinions? (Chief Judge Elrod, followed very closely by Judge Higginson.) 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? (Judge Dennis, at 91.67%; the highest number of concurring opinions was Judge Ho for the fourth year in a row, with 18; the highest number of authored dissenting opinions was Judge Higginson, with 14, with Judge Dennis right behind at 12.) 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, Higginbotham, Davis, and Clement). We have all that below (senior-status judges in italics):

Conclusions? The 2024-25 statistics show that we can often over-emphasize the importance of the composition of the panel, as, with only one exception (Judges Dennis and Higginson), the Court’s judges voted fully with the majority more than 96% of the time. 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)
Elrod	220	213	25	5	3	97	123	96.82%
Jones	428	418	16	1	4	82	346	97.66%
Smith	335	325	25		1	85	250	97.01%
Stewart	441	438	16	1 (+2 without opinions)		72	369	99.32%
Richman	205	195	40	2	5	62	143	95.12%
Southwick	377	372	15	1	1	69	308	98.67%
Haynes	428	418	8	4 (+7 without opinions)	10	65	363	97.66%
Graves	397	382	24	2	10	79	318	96.22%
Higginson	333	317	36	2	14	96	237	95.2%
Willett	423	413	24	1 (+1 without opinion)	3	84	339	97.64%
Ho	365	351	17	18	9 (+1 without opinion)	73	292	96.16%
Duncan	357	346	16	3	2	80	277	96.92%
Engelhardt	326	319	12	1	1	64	261	97.85%
Oldham	424	408	21	11 (+1 without opinion)	9	84	340	96.23%
Wilson	374	368	23	1	1	73	301	98.4%
Douglas	364	351	16	1	7	78	286	94.43%
Ramirez	388	380	13	1	3	64	324	97.94%
Dist. Ct. Judge sitting by designation	66	66	12			24	42	100%
King	248	247	4		1	31	217	99.6%
Jolly	105	105	1			2	103	100%
Higginbotham	246	246	17	2		46	200	100%
Davis	94	94		1		8	86	100%
Wiener	207	206	11	1	1	25	182	99.82%
Barksdale	131	130	2		1	8	123	99%
Dennis	168	154	5	1	12	42	126	91.67%
Clement	125	125	13			44	81	100%
per curiam			2,012 (20 not fully “for the court,” as they included a separate concurrence or dissent)			58	1,954

Wrap it all together, and an opinion in the 2024-25 term was most likely to be an unpublished per curiam affirming a criminal decision from the Northern District of Texas, with Judges Jones, Stewart, and Haynes on the panel.