Two appellate judges ruled Thursday that United Airlines’ requirement that its employees be vaccinated causes “irreparable harm” to pilots and flight attendants who claim religious objections.
In a 2-1 decision, the U.S. Court of Appeals for the Fifth Circuit issued an unpublished and unsigned opinion ordering a federal judge in Fort Worth to reconsider issuing a preliminary injunction against the Chicago-based airline.
“Plaintiffs are being subjected to ongoing coercion based on their religious beliefs,” Judge Jennifer Elrod and Judge Andrew Oldham wrote in their 22-page per curiam opinion. “That coercion is harmful in and of itself and cannot be remedied after the fact.”
The third judge on the Fifth Circuit panel, Judge Jerry Smith, issued a 58-page dissenting opinion that calls the majority opinion “absurd” and a “grave error.” He argues that it creates a new cause of action for every private employee in the Fifth Circuit and states that prior precedent and the facts in the case are a “casualty of the majority’s orgy of jurisprudential violence.”
Judge Smith criticized judges Elrod and Oldham for making their decision in an “unpublished opinion” and for basing their ruling, at least in part, on a five-decade-old case that the judge says has not been cited as precedent for 41 years.
“In its alacrity to play CEO of a multinational corporation, the majority shatters every dish in the china shop,” Judge Smith wrote. “It rewrites Title VII to create a new cause of action. It twists the record to fit that invention. It defies our precedent and the commands of the Supreme Court.
“But this majority is no senseless bull,” the judge continued. “Knowing exactly what it has wrought, the majority declares that its unsigned writing will apply to these parties only. By stripping its judgment of precedential effect, the majority all but admits that its screed could not survive the scrutiny of the en banc court.”
“We should not hasten to crush a private firm’s efforts to protect its customers and employees during a global pandemic,” Judge Smith wrote.
Legal experts said Thursday that they were surprised by both the majority’s reversal of the lower court decision and the aggressive attack by Judge Smith on the majority.
“Substantively, it’s a fascinating clash between conservative judges who emphasize different aspects of ‘conservatism,’” said David Coale, an appellate law partner at Lynn Pinker Hurst Schwegmann. “The majority is focused on religious liberty, while the dissent is centered on free enterprise and the rights of business leadership during the crisis of this pandemic.
“The case vividly shows that ‘conservative’ judges don’t think the same thing all the time,” Coale said.
The litigation started last September when a group of United Airlines employees sued the company in federal court in Fort Worth claiming that United’s new policy requiring that all of its workers be vaccinated discriminated against them for religious or medical reasons under Title VII.
The employees asked U.S. District Judge Mark Pittman to issue a preliminary injunction prohibiting United from implementing the mandate. The workers also filed a complaint with the EEOC, which is pending.
United argued that it needed the mandate because the delta variant of Covid-19 was wreaking havoc, forcing many of the airlines’ employees to take sick leave, and that those who were vaccinated were out sick for shorter periods of time and were less likely to transmit the virus to others. In addition, United allowed employees to seek religious and medical exemptions from the mandate.
Judge Pittman rejected the employees’ petition for a preliminary injunction.
The plaintiffs appealed to the Fifth Circuit.
In its opinion, the majority points out that it is not “deciding whether United or any other entity may impose a vaccine mandate” or “whether plaintiffs are ultimately entitled to a preliminary injunction.”
“We address the central question presented — whether the district court erred by concluding that plaintiffs have not shown that they will suffer irreparable harm without a preliminary injunction,” the majority wrote. “This case is rather unique among Title VII cases. Plaintiffs allege a harm that is ongoing and cannot be remedied later: they are actively being coerced to violate their religious convictions. Because that harm is irreparable, we reverse the district court.”
The majority states that the 1973 case Drew v. Liberty Mutual Insurance is binding precedent in this case. In Drew, the Fifth Circuit ruled that employees who show irreparable harm and a likely chance of winning may bring a federal action “to maintain the status quo pending” the EEOC decision.
“United has presented plaintiffs with two options: violate their religious convictions or lose all pay and benefits indefinitely,” the majority judges opined. “That is an impossible choice for plaintiffs who want to remain faithful but must put food on the table. In other words, United is actively coercing employees to abandon their convictions.”
Judge Smith described the majority opinion as “wrong” and “nonsense.” He said that “judicial invention is dead” but that “this majority exhumes it to wring one last blunder from its corpse.”
“As anyone who has taken a federal-courts class in the past two decades will recognize, Drew is not good law, however convenient it may be for this panel majority to claim its benefits,” Judge Smith wrote. “Before today, we had not cited Drew since 1981, the year when the Eleventh Circuit split from the Fifth. Drew is not the only relic from the bygone era of judge-made remedies that the majority exhumes for attention.”
Coale said the majority’s reliance on Drew is problematic.
“Judge Smith has a point about relying on a case from 1973 that hasn’t been cited since 1981,” Coale said. “Age by itself isn’t necessarily a problem — Marbury v. Madison was decided in 1803 after all. But if a case hasn’t been cited for 40 years, that does raise a red flag that the law may have simply evolved and left that case behind.”
Judge Smith also blasted Judge Elrod and Judge Oldham for making their opinion “unpublished.” He pointed out that opinions should be published if it “reverses the decision below or affirms it upon different grounds” and if there is a dissenting opinion.
“Check and check,” Judge Smith wrote. “All that leads one to wonder: if the judges in the majority truly believe that their decision is sound, why didn’t they publish it?
“I would hide my head in a bag,” Judge Smith said. “Perhaps the majority agrees. Why else shrink behind an unsigned and unpublished opinion.”