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 October 2026 statistics are based on 178 total opinions released by the Court (23 fewer than September):

Where the appeals are coming from

• In October 2026, the Northern District of Mississippi had a perfect affirmance rates, with 1 affirmance of a decision originating from there.
• The Northern District of Texas was the district with the most decisions originating from there in October, 47 total decisions. From the district, 41 of those were full affirmances or appeal dismissals; 1 was a partial affirmance/partial vacatur/reversal; 2 were full reversals; 2 were full vacaturs; and 1 was a denial of a motion.
• From the Southern District of Texas, 28 decisions were full affirmances/appeal dismissals; 1 was a partial reversal/partial affirmance; 1 was a full reversal; 1 was a full vacatur; and 1 was a motion denial.
• From the Western District of Texas, 37 decisions were full affirmances/appeal dismissals; 1 was a full reversal; 2 were full vacaturs; 1 was an order for en banc rehearing; and 1 was a published denial of en banc rehearing.
• From the Eastern District of Texas, 6 decisions were full affirmances/appeal dismissals; 1 was a full reversal; and 1 was a motion denial.
• From the Eastern District of Louisiana there were 4 full affirmances/appeal dismissals; 1 partial reversal/vacatur/partial affirmance; 1 full vacatur; and 1 published denial of en banc rehearing.
• From the Western District of Louisiana, there were 12 full affirmances/appeal dismissals; and 1 grant of a motion.
• From the Middle District of Louisiana, there was 1 full affirmance/appeal dismissal; and 1 full reversal.
• From the Southern District of Mississippi, there were 7 full affirmances/appeal dismissals; 1 full reversal; and 1 full vacatur.
• On petitions for review of Board of Immigration Appeal, there were 15 denials/dismissals of petitions for review; and 1 grant of a petition for review.
• On petitions for review of other agency actions, there was 1 grant of en banc rehearing.

What the appeals are about, and who they benefit

• The largest number of appeals were of criminal conviction and/or sentencing issues. 75 resulted in full affirmances/appeal dismissals; and 2 full vacaturs. 75 of the dispositions favored the prosecution, and 2 favored the defendant.
• In immigration cases, there was 1 full affirmance; 1 full reversal; 15 denials of petitions to review BIA orders; 1 grant of a petition for review; and 1 denial of a motion. 17 dispositions favored the government; 2 favored the immigrant.
• In prisoner suits, there were 2 full affirmances/appeal dismissals. Both dispositions favored the government defendants.
• In commercial – civil cases (including insurance disputes), there were 19 full affirmances/appeal dismissals; 2 full reversals; 1 full vacatur; 1 published denial of en banc rehearing; and 1 denial of a motion. 20 of the dispositions favored the defendant, and 4 favored the plaintiff.
• In civil rights/constitutional claims (non-prisoner-suits), there were 11 full affirmances/appeal dismissals; 1 partial reversal/vacatur/partial affirmance; 1 full reversal; 2 full vacaturs; 1 published denial of en banc rehearing; and 1 order of en banc rehearing. 14 of the dispositions favored the defendant; and 3 favored the plaintiff.
• In employment/labor law cases, there were 11 full affirmances/appeal dismissals; 1 partial affirmance/partial reversal/vacatur; 1 full reversal; and 1 order of en banc rehearing. 10 of the dispositions favored an employer; and 4 favored employees.
• In qualified immunity cases, there were 2 full affirmances. Both dispositions favored the government defendant.
• In bankruptcy cases, there were 2 full affirmances. Both dispositions favored the creditor.
• In habeas corpus/other post-conviction-relief cases, there were 4 full affirmances/appeal dismissals; and 1 motion denial. All 5 dispositions favored the government defendant.
• In personal torts cases, there were 4 full affirmances; 1 partial reversal/vacatur/partial affirmance; and 1 full vacatur. 3 dispositions favored the defendant; and 3 favored the plaintiff.
• In environmental law/toxic torts cases, there was 1 full affirmance; and 1 grant of a motion. Both dispositions favored the defendant.
• In products liability cases, there was 1 full affirmance. That 1 disposition favored the defendant.
• In maritime law cases, there was 1 full affirmance. That 1 disposition favored the defendant.
• In social security cases, there was 1 full affirmance. That 1 disposition favored the government denial of benefits.
• In class action cases, there was 1 full vacatur. That 1 disposition favored the defendant.
• In administrative law appeals, there was 1 full affirmance; and 1 full reversal. 1 disposition favored the defendant; and 1 favored the plaintiff/challenger.
• In international law cases, there was 1 full reversal. That 1 disposition favored the plaintiff.

Importance of oral argument?

• In October 2026, there were 34 decisions resulting from orally argued cases: 18 were fully affirmed; 2 were only partially affirmed, but partially reversed or vacated; 6 were fully reversed; 4 were fully vacated; 1 resulted in a published denial of en banc rehearing; 2 resulted in grants of en banc rehearing; and 1 was a denial of a petition for review of a BIA order. So, decisions in October from the orally argued cases resulted in a 61.29% full-affirmance rate (counting full affirmances and denials of petitions for review of agency orders, and eliminating rehearing orders and motions orders from the calculation). 23 of the October decisions from orally argued cases favored the defendant/state (civil defendants and state actors, including criminal prosecution); while 11 favored the plaintiff/non-state.
• In the 3 October decisions where oral argument was withdrawn after initially being granted, 2 resulted in full affirmances; and 1 was a denial of a petition for review of a BIA order; for a 100% full-affirmance rate for cases initially ordered for oral argument but then not orally argued. All 3 of those oral-argument-withdrawn decisions favored the defendant/state.
• In the 141 October decisions that were never ordered for oral argument, 117 were full affirmances; 1 was a partial reversal; 1 was a full reversal; 3 were fully vacated; 1 was a published denial of en banc rehearing; 13 were denials of petitions for review of BIA orders; 1 was a grant of a petition for review of a BIA order; 3 were denials of motions; and 1 was a grant of a motion; for a 95.59% full-affirmance rate. 142 of the no-oral-argument decisions favored the defendant/state; and 10 favored the plaintiff/non-state.

How much law is being made?

• Of the 178 opinions released by the 5th Circuit in October 2026, 38 were designated for publication. 17 of those were full affirmances; 2 were partial affirmances/partial reversals/vacaturs; 6 were full reversals; 4 were full vacaturs; 2 were grants of en banc rehearing; 2 were published denials of en banc rehearing; 1 was a denial of a petition for review of a BIA order; 3 were denials of motions; and 1 was a grant of a motion.
• 140 of the October opinions were unpublished, including 120 full affirmances/appeal dismissals; 1 partial affirmance/partial reversal/vacatur; 1 full reversal; 3 full vacaturs; 14 denials/dismissals of petitions to review BIA orders; and 1 grant of a petition for review of a BIA order.

Who was doing what on the Court?

Who was the busiest, in that they were on the most panels issuing opinions in October? (Judge Smith, at 43). Who was the busiest writer, authoring the most attributed opinions (including majority, concurring, and dissenting opinions)? (Judge Higginson, with 8). Who concurred the most in separate opinions? (Judges Richman, Ho, and Oldham, with 2 each). Who authored the most dissenting or dubitante opinions? (Judges Haynes, Ho, and Oldham, with 3 each, though Judge Haynes had an additional dissent without opinion). How many opinions did the Court issue per curiam, with no author listed? (147, with 138 of those unpublished; but 5 of those 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 Smith, with 18). 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	14	13	1			5	9
Jones	35	33	1			8	27
Smith	43	41	5			18	25
Stewart	29	28	1			7	22
Richman	33	33	1	2		4	29
Southwick	31	29			2	11	20
Haynes	30	27		1	3 (+1 w/o opp.)	4	30
Graves	16	14			1	4	12
Higginson	37	36	7		1	15	22
Willett	29	27	3			10	19
Ho	34	30	1	2	3	9	25
Duncan	37	35				7	30
Engelhardt	33	31	2			11	22
Oldham	29	25		2	3	6	23
Wilson	29	28	3			8	21
Douglas	26	25	1		1	7	19
Ramirez	26	25				6	20
Dist. Ct. Judge sitting by designation
King	11	11	2			2	9
Higginbotham	10	10					10
Davis	13	13					13
Wiener	1	1				1
Barksdale	2	2					2
Clement	10	10				1	9
Unattributed/ Clerk
per curiam			147 (5 not “true” per curia)			9	138

Conclusions? Most decisions in October, as always, were unanimous, with 15 dissents and 7 concurrences out of 178 opinions. Among senior-status judges, Judge Davis had the heaviest participation in panels. Meanwhile, among active-status judges, the lightest production in October (by participation on panels releasing opinions), other than Chief Judge Elrod, who carries the administrative load of being Chief, was Judge Graves, with 16.

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