Take the Fifth

I report after each month on interesting statistics from the data I 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.) I aggregate that–all of which provides useful insights into the inner workings of the Court, the relative success of various appeals, and more. And, if you’re wanting more granular and frequent insight into Fifth Circuit statistics, I post a weekly statistical update over at my Substack, “Not Taking the Fifth.” The April 2026 statistics are based on 166 total opinions released by the Court (70 fewer than in the previous month):

Where the appeals are coming from

• In April 2026, no district court in the Fifth Circuit had a perfect affirmance rate; though, as usual, the Fifth Circuit denied or dismissed all petitions for review of Board of Immigration Appeal decisions (9 denials/dismissals in April).
• The Northern District of Texas was the district with the most decisions originating from there in April, 41 total decisions. From the district, 38 of those were full affirmances or appeal dismissals; 3 were partial reversals/partial affirmances/vacaturs; and 1 was a published denial of en banc rehearing.
• From the Southern District of Texas, 32 decisions were full affirmances/appeal dismissals; and 1 was a certification to a state supreme court.
• From the Western District of Texas, 18 decisions were full affirmances/appeal dismissals; was a full reversal; and 1 was a full vacatur.
• From decisions from the Eastern District of Texas there were 15 full affirmances/appeal dismissals; 1 partial affirmance/partial reversal/vacatur; 1 grant of mandamus; and 1 order of en banc rehearing.
• From the Eastern District of Louisiana there were 10 full affirmances/appeal dismissals; 3 partial affirmances/partial reversals/vacaturs; and 1 full reversal.
• From the Western District of Louisiana, there were 10 full affirmances/appeal dismissals; and 1 certification to a state supreme court.
• From the Middle District of Louisiana, there was 1 full reversal.
• From the Southern District of Mississippi, there were 10 full affirmances/appeal dismissals; and 1 full vacatur.
• From the Northern District of Mississippi, there were 5 full affirmances/appeal dismissals; and 1 full reversal.
• On petitions for review of Board of Immigration Appeals orders, 9 petitions were denied or dismissed.
• On petitions for review of other agency actions, there was 1 denial and 1 grant.

What the appeals are about, and who they benefit

• The largest number of appeals were of criminal conviction and/or sentencing issues. 81 resulted in full affirmances/appeal dismissals; 2 partial affirmances/partial reversals/vacaturs; 2 full reversals; 1 full vacatur; and 1 published denial of en banc rehearing. 82 of the dispositions favored the prosecution, and 5 favored the defendant.
• In immigration cases, there was 1 full affirmance; 1 full vacatur; and 9. All 11 dispositions favored the government.
• In prisoner suits, there were 8 full affirmances/appeal dismissals. All 8 dispositions favored the government defendants.
• In commercial – civil cases, there were 12 full affirmances/appeal dismissals; 2 partial affirmances/partial reversals/vacaturs; 1 grant of mandamus; and 2 certifications to state supreme courts. 12 of the dispositions favored the defendant, and 5 favored the plaintiff.
• In civil rights/constitutional claims (non-prisoner-suits), there were 17 full affirmances/appeal dismissals; 2 partial affirmances/partial reversals/vacaturs; and 1 full reversal. 17 of the dispositions favored the defendant; and 3 favored the plaintiff.
• In employment/labor law cases, there were 6 full affirmances/appeal dismissals; 1 grant of a petition for review of an agency decision; and 1 denial of a petition for review of an agency decision. 7 of the dispositions favored an employer; and 1 favored the employee.
• In qualified immunity cases, there was 1 full affirmance; and 1 full reversal. Both dispositions favored the government defendant.
• In administrative law cases, there were 2 full affirmances. Both dispositions favored the government.
• In bankruptcy cases, there was 1 full affirmance. That 1 disposition favored the creditor.
• In maritime law cases, there was 1 full affirmance. That 1 disposition favored the defendant.
• In habeas corpus/other post-conviction-relief cases, there were 3 full affirmances/appeal dismissals. All 3 dispositions favored the government defendant.
• In social security cases, there was 1 full affirmance. That 1 disposition favored the defendant.
• In personal torts cases, there were 3 full affirmances. All 3 dispositions favored the defendant.
• In environmental law/toxic tort cases, there was 1 full affirmance. That 1 disposition favored the defendant.
• In arbitration cases, there was 1 order of en banc rehearing. That 1 disposition favored the defendant.

Importance of oral argument?

• In April 2026, there were 22 decisions resulting from orally argued cases: 9 were fully affirmed; 3 were only partially affirmed, but partially reversed or vacated; 3 were fully reversed; 1 was fully vacated; 2 were certifications to state supreme courts; 1 was a published denial of en banc rehearing; 1 was a grant of en banc rehearing; 1 was a denial of a petition for review of a BIA order; and 1 was a grant of a petition for agency review. So, decisions in April from the orally argued cases resulted in a 50% full-affirmance rate (counting full affirmances, mandamus denials, and denials of petitions for review of agency orders). 14 of the April decisions from orally argued cases favored the defendant/state (civil defendants and state actors, including criminal prosecution); while 8 favored the plaintiff/non-state.
• In the 8 April decisions where oral argument was withdrawn after initially being granted, 7 resulted in full affirmances; and 1 was a full reversal; for an 87.5% full-affirmance rate for cases initially ordered for oral argument but then not orally argued. 7 of those oral-argument-withdrawn decisions favored the defendant/state; while 1 favored the plaintiff/non-state.
• In the 139 April decisions that were never ordered for oral argument, 126 were full affirmances; 2 were partial affirmances; 1 was a grant of mandamus; 1 was fully vacated; 8 were denials of petitions for review of BIA orders; and 1 was a denial of a petition for review of other agency action; for a 97.12% full-affirmance rate. 132 of the no-oral-argument decisions favored the defendant/state; and 6 favored the plaintiff/non-state.

How much law is being made?

• Of the 166 opinions released by the 5th Circuit in April 2026, 18 were designated for publication. 4 of those were full affirmances; 4 were partial affirmances/partial reversals/vacaturs; 3 were full reversals; 1 was a grant of mandamus; 2 were full vacaturs; 1 was a certification to a state supreme court; 1 was a published denial of en banc rehearing; 1 was a grant of en banc rehearing; and 1 was a grant of a petition for review of agency action.
• 148 of the April opinions were unpublished, including 134 full affirmances/appeal dismissals; 2 partial affirmances/partial reversals/vacaturs; 1 full reversal; 1 certification to a state supreme court; 9 denials/dismissals of petitions to review BIA orders; and 1 denial of a petition for review of another agency order.

Who was doing what on the Court?

Who was the busiest, in that they were on the most panels issuing opinions in April? (Judge Douglas, at 46). Who was the busiest writer, authoring the most attributed opinions (including majority, concurring, and dissenting opinions)? (Judges Higginson, Ho, and Oldham, with 5 each). Who concurred the most in separate opinions? (Judge Oldham, with 4). Who authored the most dissenting or dubitante opinions? (Judge Higginson, with 2). How many opinions did the Court issue per curiam, with no author listed? (147, with 144 of those unpublished; but 2 of the designated “per curiam” decisions were not “true” per curia for the court, as they were accompanied by separate concurrences and/or dissents). Who participated in making the most law, participating in the most panels with published opinions? (Judges Duncan and Douglas, with 7 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	18	18				5	13
Jones	39	38	2			6	33
Smith	23	22	1			5	18
Stewart	25	23				3	22
Richman	33	31			1	4	29
Southwick	22	19		1	1	5	17
Haynes	26	25		(1 w/o op.)	1	5	21
Graves	24	21			1	5	19
Higginson	22	20	2	1	2	5	17
Willett	34	34	1	1		5	29
Ho	37	36	2	2	1	5	32
Duncan	25	24	2			7	18
Engelhardt	13	12	2			3	10
Oldham	27	26		4	1	6	21
Wilson	43	43	2			6	37
Douglas	46	44				7	39
Ramirez	16	14			1	5	11
Dist. Ct. Judge sitting by designation	2	2				1	1
King	22	22					22
Higginbotham	5	5					5
Davis	15	15					15
Wiener	6	6					6
Barksdale	2	2					2
Clement	9	9	2			3	6
Unattributed/ Clerk
per curiam			147			3	144

Conclusions? Most decisions in April, as always, were unanimous, with 9 dissents and 10 concurrences out of 166 opinions. Among senior-status judges, Judges King and Davis 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 April was from Judge Engelhardt.

Wrap it all together, and an opinion in April 2026 was most likely to be an unpublished per curiam affirming a criminal decision from the Northern District of Texas, with Judges Jones, Wilson, and Douglas on the panel.