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. The May 2026 statistics are based on 201 total opinions released by the Court (35 more than in April):

Where the appeals are coming from

• In May 2026, the Northern District of Mississippi had a perfect affirmance rate, with all 5 opinions originating from there resulting in affirmances of appeal dismissals; and, as usual, the Fifth Circuit denied or dismissed all petitions for review of Board of Immigration Appeal decisions (6 denials/dismissals in May).
• The Northern District of Texas was the district with the most decisions originating from there in May, 55 total decisions. From the district, 51 of those were full affirmances or appeal dismissals; 1 was a partial reversal/partial affirmance/vacatur; 2 were full vacaturs; and 1 was a grant of a temporary stay of execution.
• From the Western District of Texas, 42 decisions were full affirmances/appeal dismissals; 1 was a full reversal; 2 were full vacaturs; and 1 was a grant of a stay pending appeal.
• From the Southern District of Texas, 27 decisions were full affirmances/appeal dismissals; 2 were partial affirmances/partial reversals/vacaturs; and 2 were full reversals.
• From decisions from the Eastern District of Texas there were 11 full affirmances/appeal dismissals; 1 partial affirmance/partial reversal/vacatur; and 1 full reversal.
• From the Eastern District of Louisiana there were 5 full affirmances/appeal dismissals; and 2 full vacaturs.
• From the Western District of Louisiana, there were 19 full affirmances/appeal dismissals; 2 full vacaturs; and 1 grant of a stay of an agency rule.
• From the Middle District of Louisiana, there 2 full affirmances/appeal dismissals; 1 full reversal; and 1 full vacatur.
• From the Southern District of Mississippi, there were 10 full affirmances/appeal dismissals; and 1 full vacatur.
• On petitions for review of other agency actions, there were 2 grants.

What the appeals are about, and who they benefit

• The largest number of appeals were of criminal conviction and/or sentencing issues. 121 resulted in full affirmances/appeal dismissals; 2 full reversals; and 3 full vacaturs. 122 of the dispositions favored the prosecution, and 4 favored the defendant.
• In immigration cases, there was 1 full affirmance; and 6 denials of petitions to review BIA orders. All 7 dispositions favored the government.
• In prisoner suits, there were 4 full affirmances/appeal dismissals. All 4 dispositions favored the government defendants.
• In commercial – civil cases, there were 21 full affirmances/appeal dismissals; 1 partial affirmance/partial reversal/vacatur; and 1 full vacatur. 18 of the dispositions favored the defendant, and 5 favored the plaintiff.
• In civil rights/constitutional claims (non-prisoner-suits), there were 5 full affirmances/appeal dismissals; 1 partial affirmance/partial reversal/vacatur; 1 full vacatur; and 1 stay of an injunction pending appeal. 5 of the dispositions favored the defendant; and 3 favored the plaintiff.
• In employment/labor law cases, there were 10 full affirmances/appeal dismissals; and 1 grant of a petition for review of an agency decision. All 11 of the dispositions favored an employer.
• In qualified immunity cases, there were 2 full affirmances; and 1 full reversal. All 3 dispositions favored the government defendant.
• In administrative law cases, there was 1 grant of a petition to review an agency decision. That 1 disposition favored the plaintiff/challenger.
• In bankruptcy cases, there was 1 full affirmance. That 1 disposition favored the creditor.
• In habeas corpus/other post-conviction-relief cases, there were 2 full affirmances/appeal dismissals; 1 full reversal; 1 full vacatur; and 1 grant of a temporary stay of execution. 4 dispositions favored the government defendant; and 1 favored the petitioner.
• In personal torts cases, there were 2 full affirmances; and 1 full reversal. 2 dispositions favored the defendant; and 1 favored the plaintiff.
• In environmental law/toxic tort cases, there was 1 full affirmance; and 1 full vacatur. Both dispositions favored the defendant.
• In abortion law cases, there was 1 stay of an agency order. That 1 disposition favored a plaintiff/challenger.
• In arbitration cases, there were 2 full affirmances; and 1 full vacatur. 2 dispositions favored the defendant; and 1 favored the plaintiff.
• In voting/election law cases, there was 1 full vacatur. That 1 disposition favored the plaintiff/challenger.
• In international law cases, there were 2 partial affirmances/partial reversals/vacaturs. Both dispositions favored the plaintiff.

Importance of oral argument?

• In May 2026, there were 28 decisions resulting from orally argued cases: 16 were fully affirmed; 3 were only partially affirmed, but partially reversed or vacated; 3 were fully reversed; 3 were fully vacated; 1 was a denial of a petition for review of a BIA order; and 2 were grants of petitions for agency review. So, decisions in May from the orally argued cases resulted in a 60.7% full-affirmance rate (counting full affirmances, mandamus denials, and denials of petitions for review of agency orders). 20 of the May 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 5 May decisions where oral argument was withdrawn after initially being granted, 4 resulted in full affirmances; and 1 was a full vacatur; for an 80% full-affirmance rate for cases initially ordered for oral argument but then not orally argued. 4 of those oral-argument-withdrawn decisions favored the defendant/state; while 1 favored the plaintiff/non-state.
• In the 168 May decisions that were never ordered for oral argument, 152 were full affirmances; 1 was a partial affirmances; 1 was a full reversal; 6 were fully vacated; 5 were denials of petitions for review of BIA orders; and 3 were grants of motions for stay; for a 95.15% full-affirmance rate (not counting motion grants in that calculation). 157 of the no-oral-argument decisions favored the defendant/state; and 11 favored the plaintiff/non-state.

How much law is being made?

• Of the 201 opinions released by the 5th Circuit in May 2026, 22 were designated for publication. 9 of those were full affirmances; 3 were partial affirmances/partial reversals/vacaturs; 2 were full reversals; 4 were full vacaturs; 1 was a denial of a petition for review of a BIA order; 1 was a grant of a petition for review of agency action; and 3 were grants of motions for stays.
• 178 of the May opinions were unpublished, including 163 full affirmances/appeal dismissals; 1 partial affirmance/partial reversal/vacatur; 3 full reversals; 5 full vacaturs; 5 denials/dismissals of petitions to review BIA orders; and 1 grant 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 May? (Judge Oldham, at 49). Who was the busiest writer, authoring the most attributed opinions (including majority, concurring, and dissenting opinions)? (Judge Oldham, with 5). Who concurred the most in separate opinions? (Judge Oldham, with 3). 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? (183, with 177 of those unpublished; but 8 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? (Judge Oldham, with 8). 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	11	11	1			2	9
Jones	28	27	1		1	4	24
Smith	21	21	2			3	18
Stewart	39	39	1			3	36
Richman	30	29	1		1	3	27
Southwick	29	29	2			4	25
Haynes	25	25				3	22
Graves	38	37	2		1	5	33
Higginson	24	22	1	1	2	3	21
Willett	34	34		1		1	33
Ho	29	29		2		3	26
Duncan	22	22	1			2	20
Engelhardt	35	35	2	1		4	31
Oldham	49	49	2	3 (+1 w/o op.)		8	41
Wilson	34	34	1			2	32
Douglas	34	33		1	1	3	31
Ramirez	35	35					35
Dist. Ct. Judge sitting by designation	1	1				1
King	16	16				2	14
Higginbotham	35	35	1			6	29
Davis	13	13				1	12
Wiener	6	6					6
Barksdale	4	4				1	3
Clement	8	8					8
Unattributed/ Clerk
per curiam			183			6	177

Conclusions? Most decisions in May, as always, were unanimous, with 6 dissents and 9 concurrences out of 201 opinions. Among senior-status judges, Judge 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 (not counting Chief Judge Elrod, who also carries a heavy administrative load) was from Judge Duncan.

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