Why did a federal judge call an appellate decision on private COVID-19 mandates an “orgy of jurisprudential violence?”

And that’s just the tip of the iceberg in this blistering (albeit, PG-rated) 58-page dissent to yesterday’s non-precedential Fifth Circuit decision, in which the majority concluded that a private company’s workplace vaccine mandate could irreparably harm individuals with disabilities and strong religious beliefs.

So, orgies, eh?

That’s nothing. Check out this money shot 😏 from the dissent:

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.”

There’s much more.

But first, how did we get here?

Before we dive deeper into the dissent, let’s rewind to November. That’s when several airline employees sued their employer to block its accommodation policy for employees who received religious or medical exemptions from the company’s COVID-19 vaccine mandate. The airline’s “accommodation” was indefinite unpaid leave until the employees got fully vaccinated or the pandemic waned. I wrote about that case here.

A Texas federal judge was not too keen on the airline’s approach but denied the injunction request anyway. The plaintiffs could not carry their burden of showing that they would suffer imminent, irreparable injury absent an injunction.

Active coercion?

The case then went up on appeal to the Fifth Circuit. Initially, the appellate court denied an emergency request to enter an injunction. However, yesterday, a divided three-judge panel issued this per curiam decision, in which the Fifth Circuit concluded that the plaintiffs would likely suffer irreparable harm from the airline’s accommodation policy. They concluded that since the defendant was actively coercing the plaintiffs to violate their religious convictions with the Hobson’s choice to get vaccinated or remain on unpaid leave, the plaintiffs would suffer irreparable harm.

While the plaintiffs won this battle, they have yet to win the war. The majority did not enter an injunction. Nor could it. The Fifth Circuit did not address the other elements of a preliminary injunction, such as whether:

1. the plaintiffs had a substantial likelihood of success on the merits,
2. the threatened injury to the movant outweighs the threatened harm to the party sought to be enjoined, and
3. granting injunctive relief serves the public interest.

That will be up to the District Court Judge on remand.

It shatters every dish in the china shop.

Before dispensing some practical considerations for you folks, I’d be remiss if I didn’t address more of the dissent from Judge Jerry E. Smith. His Honor was spittin’ 🔥🔥🔥.

TL;DR: Judge Smith disagreed with the majority. He concluded that the plaintiffs would not suffer irreparable harm — let alone meet their burden of establishing any of the other injunction criteria.

But, as I said, the dissent is 58 pages. I can’t go too deep into the weeds here. Instead, I encourage you to read it all if you appreciate sharp writing and plain English analysis. But if all the reading sounds too daunting — I know the feeling — I’ll share a few of my favorite quotes:

“In its alacrity to play CEO of a multinational corporation, the majority shatters every dish in the china shop.”

“[T]he majority erases decades of precedent requiring our plaintiffs to plead and prove irreparable injury. It then
invents a new per se rule: To show irreparable harm, a Title VII plaintiff need only allege ‘ongoing coercion because of a protected characteristic.’ Find that rule in the statute, our caselaw, or the law of any federal circuit. You won’t; it’s completely fabricated.”

“If I didn’t know better, I might surmise that the majority didn’t even read the plaintiffs’ brief.”

“I could discern no reason for the majority’s selective orderliness, but for every error pointing toward the result my colleagues find most satisfying.”

“I call this the ‘one and done’ method of decisionmaking. Two judges randomly selected for a panel decide that—for whatever reason—a particular result is correct but can be achieved only by divorcing the opinion from the common-law tradition, by evading precedent, and by obscuring the path in the shroud of an unpublished per curiam opinion.”

And my favorite: “This is no personal criticism of my two conscientious co-panelists, who serve with integrity, dedication, and skill.”

Employer takeaways.

If you operate a business anywhere outside of TX, MS, or LA, disregard this opinion — like it never happened. For those of you in the Fifth Circuit, this decision is non-precedential, non-binding, and limited to the issue of irreparable harm. The opinion does not address whether a business can impose a COVID-19 vaccine mandate. (It can.) Your only pause should be forcing unpaid leave on those who seek health or religious accommodations. If you are risk-averse, try something like regular testing and masking instead.