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Fifth Circuit opinion in United Airlines vaccine mandate case conjures fiery dissent

“The Good Ship Fifth Circuit is afire,” wrote an appellate judge in a ferocious rebuke of his colleagues. “We need all hands on deck.”

(CN) — A U.S. Circuit Court of Appeals’ unpublished, per curiam decision rarely stirs the pot. But the Fifth Circuit’s decision Thursday in a lawsuit between United Airlines and its unvaccinated employees spurred one appellate judge to rebuke his colleagues in no uncertain terms.

Six of the airline’s employees filed a class-action federal lawsuit last September alleging that their employer’s Covid-19 vaccine mandate — according to which anyone who fails to receive a coronavirus vaccination will be indefinitely placed on unpaid leave — violated their rights under the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act.

They sought a temporary restraining order that would keep United from enforcing its mandate, claiming the policy would cause the employees “imminent, irreparable harm.”

The trial court, helmed by U.S. District Judge Mark Pittman of the Northern District of Texas’ division in Fort Worth, disagreed last November, finding employees’ rights were not abridged because United’s vaccine policy exempted employees who refused vaccines for medical or religious reasons.

On Thursday, a panel of three Fifth Circuit judges decided, in a two-to-one ruling, to reverse Judge Pittman’s decision, finding that because two of the plaintiffs received religious exemptions from United yet remain on unpaid leave from work, the airline’s employees face irreparable harm.

The two employees, a pilot and a flight attendant, wanted to avoid the vaccine because they believed it was developed using tissue obtained from aborted fetuses.

“We hold that the district court erred as to the plaintiffs who remain on unpaid leave and have brought Title VII actions,” the majority — U.S. Circuit Judge Jennifer Elrod and U.S. Circuit Judge Andrew Oldham, appointed by George W. Bush and Donald Trump, respectively — wrote. “Plaintiffs are being subjected to ongoing coercion based on their religious beliefs. That coercion is harmful in and of itself and cannot be remedied after the fact.”

The pair of appellate judges were careful to clarify the scope of their ruling at the beginning of the opinion.

“Critically, we do not decide whether United or any other entity may impose a vaccine mandate,” wrote the majority. “Nor do we decide whether plaintiffs are ultimately entitled to preliminary injunction. The district court denied such an injunction on one narrow ground; we reverse on that one narrow ground and remand for further consideration.”

But the third panelist, U.S. Circuit Judge Jerry Smith, rejected the majority’s reasoning in a 58-page dissent, more than double the length of the majority’s opinion. Judge Smith requests en banc review of the opinion — that is, consideration by the entirety of the Fifth Circuit’s judges, typically reserved for particularly significant or controversial rulings — which is marked “unpublished” because it is not meant to be cited as precedent.

“The fact that an opinion is unpublished furnishes just another reason to vote to deny en banc scrutiny,” wrote Smith, a Ronald Reagan appointee. “But by today’s ruling, the Good Ship Fifth Circuit is afire. We need all hands on deck.”

Describing the majority ruling as an “orgy of jurisprudential violence,” Judge Smith accused his colleagues of “shrink[ing] behind an unsigned and unpublished opinion” and accused them of playing the part of United Airlines CEO, working backwards to justify their preferred outcome with what he called poor legal reasoning.

“if I ever wrote an opinion authorizing preliminary injunctive relief for plaintiffs without a cause of action, without a likelihood of success on the merits (for two reasons), and devoid of irreparable injury, despite the text, policy, and history of the relevant statute, despite the balance of equities and the public interest, and despite decades of contrary precedent from this circuit and the Supreme Court, all while inventing and distorting facts to suit my incoherent reasoning, ‘I would hide my head in a bag.’” Smith wrote, quoting the late Justice Antonin Scalia at the end of his scathing rebuke and citing eight footnotes as he wrote.

Warning the decision could “chill life-saving answers to this pandemic,” Judge Smith criticized “the ‘one and done’ method of decisionmaking,” arguing that the decision not to publish the ruling conflicts with the Fifth Circuit’s rule governing the publication of cases that, for example, establish new rules of law and concern issues of significant public interest.

It is unclear whether or when the Fifth Circuit may reconsider the ruling en banc.

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