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 sixth annual compilation, aggregating statistics from October 2025 through September 2026.

Notable Court changes during this past year include Judge Jolly passing away on March 16, 2026; Judge Dennis converting to inactive senior status on February 23, 2026; and in July and September of this year, Judges Engelhardt and Southwick announcing that they would take senior status once their replacements were confirmed. (Judge Anna St. John of the Eastern District of Louisiana has been nominated to fill Judge Engelhardt’s seat, and Todd Butler has been nominated to fill Judge Southwick’s seat). The Court continues to have 17 active-status judges, plus 6 active senior-status judges. Active-status judges who are currently eligible to take senior-status (aside from Judges Engelhardt and Southwick) include Judges Jones, Smith, Stewart, Richman, Haynes, Graves, and Higginson (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 2025-2026 statistics are based on 2,456 total opinions (32 more than the 2,424 total opinions released by the Court in the 2024-2025 year). 1,982 were full affirmances (or appeal dismissals), which, when calculating in the 150 denials of petitions for BIA and other agency orders, resulted in an 86.81% affirmance rate across all appeal types (right in line with last year’s 87% affirmance rate); 76 were partial affirmances/partial reversals/vacaturs; 84 were full reversals; 4 were orders regarding mandamus (2 of them grants); 91 were full vacaturs; 6 were certifications of questions to state supreme courts; 13 were published orders denying en banc rehearing; 12 were grants of en banc rehearing (up from 7 last year); 133 were denials or dismissals of petitions for review of Board of Immigration Appeals decisions; 4 were grants of petitions to review BIA decisions; 17 were denials of petitions to review other agency decisions; 19 were grants of petitions to review other agency decisions; 7 were motion denials; and 6 were grants of motions; and 2 were partial grants of motions.

Appeals by District Court (or other review origin)

• The most appellate decisions in 2025-26, as in the previous four years, originated out of the Northern District of Texas, with 606. 544 were full affirmances or appeal dismissals, for a 90.83% affirmance rate; 12 were partial affirmances/partial reversals/vacaturs; 12 were full reversals; 1 was a denial of mandamus; 16 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; 2 were denials of motions; 1 was a grant of a motion; and 1 was a partial grant of a motion.
• The next-highest number of appeals originated in the Southern District of Texas, with 490. 408 were full affirmances or appeal dismissals, for an 83.95% affirmance rate; 21 were partial affirmances/partial reversals/vacaturs; 23 were full reversals; 1 was a grant of mandamus; 26 were full vacaturs; 3 were certifications to the state supreme court; 2 were published orders denying en banc rehearing; 2 were grants of en banc rehearing; 1 was a grant of a motion; and 1 was a partial grant of a motion.
• Next was the Western District of Texas, with 475 total opinions from cases originating there. 422 were full affirmances or appeal dismissals, for a 90.36% affirmance rate; 13 were partial affirmances/partial reversals/vacaturs; 15 were full reversals; 16 were full vacaturs; 2 were published orders denying en banc rehearing; 3 were orders of en banc rehearing; 1 was a denial of a motion; and 2 were grants of motions.
• Next highest was the Western District of Louisiana, with 187 total opinions from cases originating there. 158 were full affirmances or appeal dismissals, for an 86.81% affirmance rate; 7 were partial affirmances/partial reversals/vacaturs; 4 were full reversals; 1 was a denial of mandamus; 9 were full vacaturs; 1 was a certification to the state supreme court; 3 were published denials of en banc rehearing; and 2 were grants of motions.
• The Eastern District of Texas had the next highest total number of Fifth Circuit opinions, with a total of 162 opinions originating from there. 141 were full affirmances or appeal dismissals, for an 87.34% affirmance rate; 7 were partial affirmances/partial reversals/vacaturs; 6 were full reversals; 1 was a grant of mandamus; 4 were full vacaturs; 1 was an order of en banc rehearing; and 2 were denials of motions.
• Next came the Eastern District of Louisiana, with 132 Fifth Circuit opinions originating from cases there. 104 were full affirmances or appeal dismissals, for an 83.21% affirmance rate; 9 were partial affirmances/partial reversals/vacaturs; 8 were full reversals; 1 was a denial of mandamus; 9 were full vacaturs; and 1 was a published denial of en banc rehearing.
• The Southern District of Mississippi had the next highest number of Fifth Circuit opinions, with 114. 98 were full affirmances or appeal dismissals, for a 86.73% affirmance rate; 7 were partial affirmances/partial reversals/vacaturs; 6 were full reversals; 6 were full vacaturs; 1 was a certification to the state supreme court; 1 was a grant of en banc rehearing; and 1 was a denial of a motion.
• The next highest point-of-origin district was the Northern District of Mississippi, with 50 opinions. 43 were full affirmances or appeal dismissals, for a 86% affirmance rate; 1 was a partial affirmance/partial reversal/vacatur; 5 were full reversals; and 1 was a grant of mandamus.
• The lowest number of opinions originated from cases from the Middle District of Louisiana, with a total of 42 opinions originating there. 31 were full affirmances or appeal dismissals, for a 77.5% affirmance rate; 1 was a partial affirmance/partial reversal/vacatur; 4 were full reversals; 3 were full vacaturs; 2 were published denials of en banc rehearing; and 1 was a grant of en banc rehearing.
• In addition to the review of District Court decisions, the Fifth Circuit also reviewed 8 decisions of the U.S. Tax Court in 2024-25, affirming 6 and vacating 2. The Court also engaged in 39 actions on agency decisions, denying petitions to review 17 of those, granting petitions to review 19, affirming 1 in direct appeal, and entering a published order denying en banc rehearing of one and granting en banc rehearing of another.
• Additionally, the Fifth Circuit reviewed 137 petitions for review of Board of Immigration Appeals decisions, of which 133 were denied or dismissed and 4 were granted, for an “affirmance” rate of 97.08%.

What the appeals are about

• The largest number of appeals, 1,254, are of criminal conviction and/or sentencing issues. 1,183 resulted in full affirmances/appeal dismissals, for an affirmance rate of 94.33%; 12 were partial affirmances/partial reversals/vacaturs; 19 were full reversals; 35 were full vacaturs/remands; 2 were published denials of en banc rehearing; 1 was an order of en banc rehearing; 1 was a denial of a petition for agency review; 1 was a denial of a motion; and 1 was a partial grant of a motion. 95.13% favored the prosecution (1,193 out of 1,254).
• In post-conviction relief cases, including state and federal habeas petitions, there were 44 full affirmances/appeal dismissals, for an 81.97% affirmance rate; 2 partial affirmances/partial reversals/vacaturs; 6 full reversals; 4 full vacaturs; 1 published denial of en banc rehearing; 1 grant of a motion; and 1 partial grant of a motion. 84.75% favored the government/prosecution (50 out of 59).
• In immigration cases, there were 13 full affirmances, 1 full reversal, and 1 full vacatur from district court decisions; 1 order of en banc rehearing; 133 dismissals/denials of petitions for review of BIA orders; 4 grants of petitions to review BIA orders; and 3 denials of other agency review. 96.79% favored the government (151 out of 156).
• In prisoner suits, there were 76 full affirmances/appeal dismissals, for an 86.14% affirmance rate; 1 partial affirmance/partial reversal/vacatur; 5 full vacaturs; 1 published denial of en banc rehearing; and 1 denial of a motion. 92.86% favored the government defendants (78 out of 84).
• In commercial – civil cases, there were 196 full affirmances/appeal dismissals, for a 73.08% affirmance rate; 16 partial affirmances/partial reversals/vacaturs; 14 full reversals; 1 denial and 2 grants of mandamus; 13 full vacaturs; 5 certifications of questions to state supreme courts; and 1 denial of a petition for review of agency action. 70.28% favored the defendant (175 out of 249).
• In civil rights/constitutional claims (non-prisoner-suits), there were 179 full affirmances/appeal dismissals, for a 73.22% affirmance rate; 18 partial affirmances/partial reversals/vacaturs; 8 full reversals; 1 denial and 2 grants of mandamus; 9 full vacaturs; 3 published orders denying en banc rehearing; 7 orders of en banc rehearing; 1 motion denial; and 3 motion grants. 82.68% favored the government defendant (191 out of 231).
• In qualified immunity cases, there were 36 full affirmances, for a 60.32% affirmance rate; 6 partial affirmances/partial reversals/vacaturs; 15 full reversals; 3 full vacaturs; and 2 published orders denying en banc rehearing; and 1 grant of en banc rehearing. 71.43% favored the government defendant (45 out of 63–the exact same breakdown as last year).
• In employment/labor law cases, there were 94 full affirmances/appeal dismissals, for a 78.57% affirmance rate; 9 partial affirmances/partial reversals/vacaturs; 6 full reversals; 1 denial of mandamus; 5 full vacaturs; 1 published denial of en banc rehearing; 9 denials of petitions for review of agency decisions; and 8 grants of petitions for review of agency decisions. 71.97% favored the employer (95 out of 132), a 10% drop from last year.
• In personal injury/non-commercial tort cases, there were 35 full affirmances/appeal dismissals, for an 80.49% affirmance rate; 2 partial affirmance/partial reversal/vacatur; 5 full reversals; and 6 full vacaturs. 69.39% favored the defendant (34 out of 49), a more-than-10% drop from last year.
• In social security cases, there were 10 full affirmances, for a 100% affirmance rate. 100% favored the Social Security Administration.
• In bankruptcy cases, there were 32 full affirmances, for a 71.05% affirmance rate; 2 partial affirmance/partial reversal/vacatur; 2 full reversals; and 1 certification to a state supreme court. Only 48.65% favored the debtor (18 out of 37), a 25% drop from last year.
• In arbitration cases, there were 11 full affirmances, for a 42.86% affirmance rate; 2 partial affirmance/partial reversal/vacatur; 1 full vacatur; 1 published denial of en banc rehearing; and 1 grant of en banc rehearing. Only 43.75% favored the defendant (7 out of 16), an almost 15% drop from last year.
• In tax law cases, there were 11 full affirmances, and 2 full vacaturs, for an 84.62% affirmance rate; and 1 full reversal. 84.62% favored the taxing authority (11 out of 13).
• In healthcare law cases (this category includes ACA challenges and vaccine mandate or other COVID-19-related cases), there were 2 full affirmances, for a 66.67% affirmance rate; and 1 partial affirmance/partial reversal/vacatur. 66.67% favored the defendant (2 out of 3).
• In voting/election law cases, there were 4 full affirmances, for a 50% affirmance rate; 1 partial affirmance/partial reversal/vacatur; 1 full reversal; 1 denial of mandamus; 2 full vacaturs; and 1 published denial of en banc rehearing. 60% favored the government defendant (6 out of 10).
• In environmental law/toxic tort cases, there were 3 full affirmances, for a 41.67% affirmance rate; 1 full reversals; 4 full vacaturs; 2 denials of petitions for review of agency action; and 2 grants of petitions for agency review. 75% favored the defendant (8 out of 12).
• In products liability cases, there were 4 full affirmances, for an 80% affirmance rate; and 1 full reversal. 80% favored the defendant (4 out of 5).
• In maritime law cases, there were 10 full affirmances, for a 76.92% affirmance rate; 1 partial affirmance/partial reversal/vacatur; 1 full reversal; and 1 full vacatur. 61.54% favored the defendant (8 out of 13).
• In attorney discipline appeals, there was 1 grant of a motion, which favored the defendant.
• In administrative law cases, there were 16 full affirmances and 4 denials of petitions for agency review, for a 57.14% affirmance rate (20% higher than last year); 2 partial affirmance/partial reversal/vacatur; 1 full reversals; 1 full vacaturs; 1 order of en banc rehearing; 9 grants of petitions for review of agency actions; and 1 motion grants. 60% favored the government/agency (21 out of 35).
• In class action cases, there were 4 full affirmances, and 2 full reversals, for a 66.67% affirmance rate. Only 16.67% favored the defendant (1 out of 6).
• In international law cases, there were 3 full affirmances, for a 60% affirmance rate; and 2 partial affirmances/partial reversals/vacaturs. 60% favored the defendant (3 out of 5).
• In abortion law cases, there was 1 grant of a motion, favoring the plaintiff.

How much law is being made?

• Of the 2,456 opinions released by the 5th Circuit in 2025-26, 417 were designated for publication, for a 16.98% publication rate. 205 of those were full affirmances; 38 were partial affirmances/partial reversal/vacaturs; 50 were full reversals; 2 were mandamus denials and 3 were mandamus grants; 41 were full vacaturs; 5 were certifications to state supreme courts; 13 were published denials of en banc rehearing; 12 were orders granting en banc rehearing; 13 were denials of petitions for review of BIA orders; 1 was a grant of a petition to review a BIA order; 7 were denials of petitions to review other agency decisions; 18 were grants of petitions to review other agency decisions; 6 were grants of motions; and 5 were denials of motions; and 1 was a partial grant of a motion. The full affirmance rate for published decisions was 56.05%.
• 2,039 of the 2025-26 opinions were unpublished, including 1,777 full affirmances/appeal dismissals; 38 partial affirmances/partial reversals/vacaturs; 34 full reversals; 2 mandamus denials; 2 mandamus grants; 50 full vacaturs; 1 certification of a question to a state supreme court; 120 denials/dismissals of petitions to review BIA orders; 3 grants of a petition to review BIA orders; 10 denials of petitions to review other agency decisions; 1 grant of a petition to review an agency decision; 2 motion denials; and 1 partial grant of a motion. The full affirmance rate for unpublished decisions was 93.76%.

Who was doing what on the Court?

Who was the busiest, in that they were on the most panels issuing opinions in 2025-26? (Judge Wilson, with 479.) Who was the busiest writer, authoring the most attributed opinions? (Judge Higginson, for the sixth year in a row, with 62–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? (2,024, with 1,964 of those unpublished.) Who participated in making the most law, participating in the most panels with published opinions? (Judge Smith, with 116.) 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 79.31%; the highest number of concurring opinions was Judge Ho for the fifth year in a row, with 22; the highest number of authored dissenting opinions was Judge Oldham, with 25) Which judges always voted with the majority opinion, 100% of the time, without even a separate concurrence? (Judges Davis and Barksdale). We have all that below (senior-status judges in italics):

Conclusions? The 2025-26 statistics show that we can often over-emphasize the importance of the composition of the panel, as, with only five exceptions (Judges Dennis, Haynes, Graves, Higginson, Ho, and Oldham), the Court’s judges voted fully with the majority more than 95% of the time (and four of those six were over 90% and one, Judge Dennis, is now inactive senior-status). 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	201	199	21	3	4	79	122	97.51%
Jones	405	401	25		6 (+1 w/o op.)	74	341	99.01%
Smith	352	339	40		3	116	236	96.31%
Stewart	406	397	13		2	74	332	97.78%
Richman	401	391	33		5	68	333	97.51%
Southwick	373	368	21	3 (+1 w/o op.)	2	85	288	97.59%
Haynes	384	363	3	2 (+5 w/o op.)	21	77	307	92.71%
Graves	386	369	24	4 (+2 w/o op.)	9	82	304	94.04%
Higginson	350	333	42	7 (+1 w/o op.)	13	95	255	92.86%
Willett	466	459	26	11	5	86	380	96.14%
Ho	382	371	10	22 (+1 w/o op.)	10	69	313	91.1%
Duncan	383	374	23		2	66	317	97.65%
Engelhardt	348	339	19	1	1	73	275	97.13%
Oldham	442	414	14	19 (+3 w/o op.)	25 (+2 w/o op.)	86	356	88.69%
Wilson	479	474	15	3	1	89	390	98.33%
Douglas	402	394	12	3 (+1 w/o op.)	5	69	332	97.01%
Ramirez	383	372	7	1	4	70	313	96.87%
Dist. Ct. Judge sitting by designation	22	22	3	1		12	10	95.45%
King	241	238	2	2	3	31	210	97.93%
Higginbotham	219	218	12		2	35	184	99.54%
Davis	155	155	4			7	148	100%
Wiener	149	149	4	1		28	121	99.33%
Barksdale	69	69				9	60	100%
Dennis	58	49	1	2 (+1 w/o op.)	9	20	38	79.31%
Clement	139	139	15	1		34	95	99.28%
per curiam			2,024 (65 not fully “for the court,” as they included a separate concurrence or dissent)			60	1,964

Wrap it all together, and an opinion in the 2025-26 term was most likely to be an unpublished per curiam affirming a criminal decision from the Northern District of Texas, with Judges Willett, Oldham, and WIlson on the panel.