[author: Harvey S. “Tad” Bartlett]
Each year, Take the Fifth blog compiles and analyzes key statistics from the opinions issued by the U.S. Court of Appeals for the Fifth Circuit. While the Fifth Circuit itself compiles and releases statistics on a July-to-June period, we run our analysis on an October-to-September period to coincide with the U.S. Supreme Court’s term, and also try to capture different and more granular forms of data. Following are a few of Take the Fifth’s observations from the October 1, 2023, through September 30, 2024, period.
Personnel changes
One notable change during the term was the commissioning of Judge Ramirez in January 2024, bringing the total number of active-status judges on the Court back up to its full complement of 17. The Court also includes 10 senior-status judges, with 8 of them actively participating in decision panels. Using the metric that a judge must be at least 65 years old and their age-plus-years of federal judicial service equaling at least 80, the current active-status judges who are eligible for senior status are Judges Jones, Smith, Stewart, Richman, Southwick, and Graves. As of October 4, 2024, the Chief Judge seat rotated from Judge Richman to now-Chief Judge Elrod.
Key Trends + Observations
During the 2023-2024 term, the Fifth Circuit issued a total of 2,413 opinions, down from 2,696 in the previous year. 1,915 were full affirmances (or appeal dismissals); 90 were partial affirmances/partial reversals/vacaturs; 100 were full reversals; 11 were orders regarding mandamus (5 grants and 6 denials); 97 were full vacaturs; 11 were certifications of questions to state supreme courts; 13 were published orders denying en banc rehearing (down slightly from 15 last year); 6 were grants of en banc rehearing (down substantially from 11 last year); 122 were denials or dismissals of petitions for review of Board of Immigration Appeals decisions; 5 were grants of petitions to review BIA decisions; 7 were denials of petitions to review other agency decisions; 17 were grants of petitions to review other agency decisions (significantly up from only 4 last year); 9 were motion denials; 9 were grants of motions; and 1 was a partial grant/partial denial of a motion.
En banc and Supreme Court Activity
Both the number of published orders denying en banc rehearing (13), with that publication of such an order occurring when a member of the Court authors a separate dissent from or concurrence with the denial of rehearing to highlight a particular point involved in the rehearing vote, and the number of grants of en banc rehearing (6) are down from last year (15 and 11, respectively). Making its way through the large number of en banc rehearing grants in the previous year, this Court year the Court issued 12 en banc opinions (10 on the merits and 2 on stay motions pending rehearing).
Notably, there are currently 13 of the 52 U.S. Supreme Court cases accepted so far for that Court’s 2024-25 Court Term that are from the Fifth Circuit, continuing the disproportionate representation of Fifth Circuit decisions on the Supreme Court docket from recent years.
Appeals by District Court (and other review origin)
The Northern District of Texas remained the leading source of Fifth Circuit decisions, with 645 opinions issued by the Court originating in that district in the 2023-2024 period. The affirmance rate for these appeals was at 90%. The next highest totals of appeals were from the Southern District of Texas, with 495 appeals and an 82% affirmance rate, and the Western District of Texas, with 492 appeals and an 85% affirmance rate.
The lowest number of opinions originated from cases from the Northern District of Mississippi, with a total of 39 opinions and a 90% affirmance rate. Also on the lower end were the Middle District of Louisiana’s 59 cases with a 78% affirmance rate, and the Southern District of Mississippi’s 79 opinions with an affirmance rate of 86%.
The Western and Eastern District Courts of Louisiana, along with the Eastern District of Texas, each brought between 120 to 175 cases to the Fifth Circuit. The Eastern District of Louisiana saw the lowest affirmance rate overall, at 73%.
In addition to the review of District Court decisions, the Fifth Circuit also reviewed 2 decisions of the U.S. Tax Court in 2023-34, fully affirming both. The Court’s reviews of Petitions for review from the Board of Immigration Appeals decisions fell sharply this year just 126 Fifth Circuit reviews, compared to 267 in the previous year. 121 were denied or dismissed and 5 were granted. This translates to an affirmance rate of 96% in immigration matters, continuing a trend of government victories in these types of cases.
What the Appeals Are About
One common interpretation of the Fifth Circuit’s high overall affirmance rate – 84.79% -- is that prevailing on appeal is an impossibly difficult hill to climb. However, the likelihood of reversal can be more accurately assessed by reviewing the affirmance rates by area of law.
The lion’s share of the Court’s high affirmance rate stems from criminal appeals, which account for 1,259 of the 2,413 opinions issued in the 2023-24 term. In criminal conviction and sentencing cases, the affirmance rate stands at 96.2%. Looking at civil matters and other specialized cases, lower, and less discouraging, affirmance rates are found. For example, in commercial-civil cases, the Court affirmed the lower court’s ruling in 66.2% of cases, whereas in civil rights/constitutional claims, the Court affirmed decisions in 74.4% of cases. The employment and labor law docket had an affirmance rate of 73.6%.
Other case types brought before the Fifth Circuit this year include qualified immunity (62.7% affirmance rate), personal injury/non-commercial tort (78.7%), social security (100%), bankruptcy (69.4%), abortion law (50%), arbitration (50%), tax law (77.8%), healthcare law (including ACA challenges and COVID-19 or other vaccine-mandate challenges) (33.3% affirmance rate), voting/election law (38.1%), environmental law/toxic tort (46.4%), products liability (60%), maritime law (57.1%), attorney discipline (40%), administrative law (40%), class action (28.6%), and international law (25%).
Also striking is a granular-level look at which side of the “v” the Fifth Circuit’s decisions favor in certain types of cases. For example, in 96.5% of criminal and sentencing appeals, the Court’s decision favors the prosecution. In commercial-civil cases, 61.9% of decisions favor the defendant—perhaps a far lower percentage than practitioners might think; though unsurprising is the 85.1% figure that favors defendants in personal injury/tort decisions and the 85.7% percentage favoring defendants in cases where class action certification is at issue. And, while 81.4% of decisions in civil rights and constitutional claims favor the government defendant, where qualified immunity is the primary issue only 54.2% of decisions favor the government defendant. Perhaps of little surprise to practitioners in the employment law field, 79.4% of opinions in that area favor the employer over the employee.
Opinion Mechanics and Judicial Independence
Of the 2,413 opinions released in this term, only 18.9% were designated for publication, a slight decrease from 19.6% in the previous year. This continues a multi-year trend of a relatively low publication rate. Interestingly, the affirmance rate for published decisions was only 47.8%.
Taking a look at the judicial activity for the 2023-24 term, Judge Smith participated in the most panels with published opinions. Meanwhile, Judge Higginson remained the busiest attributed writer, authoring the most attributed opinions for the fourth consecutive year, at 54. The court issued a total of 1,972 per curiam opinions, with 1,911 of them unpublished, reflecting a significant portion of cases decided without individual authorship. Judge Smith played a large role in shaping the law, participating in the most panels with published opinions. On the other hand, then-Chief Judge Richman demonstrated the most independence, as she voted with the majority in “only” 88.78% of panels without issuing separate concurring opinions or joining or authoring any dissents. Judges Ho and Dennis followed closely in terms of independence, with their majority votes standing at 90.42% and 90.85%, respectively, without issuing a separate concurrence or dissenting. Judge Ho authored the most concurring opinions (14), while Judges Higginson and Oldham tied for the highest number of authored dissents (12 each), with Judges Dennis and Haynes trailing slightly with 11 each. Finally, Judges Jolly and Barksdale, along with judges sitting by designation, consistently voted with the majority on all cases, without issuing separate concurrences.
While the judges' activities and decisions can reflect personal judicial styles or leanings, it's important to recognize that party affiliation and the president who appointed them have little impact on the unanimity of most rulings. As can be seen from the highest and lowest pure majority percentages, judges on the Fifth Circuit, regardless of their backgrounds, often rule together in a striking number of cases, with many decisions made without dissent or concurring opinions. However, when it comes to en banc-worthy issues, the political-appointment blocs are borne out. In the ten merits-decisions by the en banc Court in this period, Judges Jones, Smith, Duncan, and Engelhardt voted in the majority every time, with Judges Oldham and Wilson joining in nine of those cases, Judges Ho and Willett joining in eight of those cases, Chief Judge Richman joining in seven of those cases and concurring in judgment in another, and Judge Elrod joining in seven. On the other side are Judges Graves and Douglas, who only joined in the majority in one decision, Judge Higginson joining in only two, and Judges Stewart and Ramirez joining in four. Occupying the middle of the Court are Judges Southwick (joining the majority six out of ten times) and Haynes (joining the majority in four out of the ten and concurring in judgment only in two others).
Conclusions
Wrap it all together, and an opinion in the 2023-24 term was most likely to be an unpublished per curiam affirming a criminal decision from the Northern District of Texas, with Judges Stewart, Southwick, and Wilson on the panel.
The 2023-24 statistics show that we can often over-emphasize the importance of the composition of the typical panel decision, as, with only three exceptions (Judges Richman, Haynes, and Dennis), the Court’s judges voted fully with the majority more than 93% of the time, and most judges are above 97%. 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.
Key trends in the Court's operations, such as a decrease in en banc activity and a continued reliance on per curiam decisions, emphasize ongoing discussions about transparency and judicial independence. The Fifth Circuit’s significant representation in the Supreme Court’s 2024-25 docket underscores its influential role in shaping federal jurisprudence (even if, more often than not, the Supreme Court is reversing or vacating the Fifth Circuit’s decisions that end up there). Meanwhile, the relatively low publication rate of opinions continues to spark debate about the accessibility of the Court’s decisions and their impact on legal precedent.
