Monday, February 21, 2022

This dissenting opinion in the United Airlines vaccine-mandate case is 58 pages of pure judicial rage

It's been a little over three months since a federal district court in Forth Worth, Texas, denied a preliminary injunction to a group of unvaccinated employees of United Airlines challenging its vaccine mandate. The court so ruled because the employees, whom United had placed on an unpaid leave of absence, had a viable claim for money damages and with that adequate legal remedy couldn't simultaneously seek an equitable remedy. 

It's been a little over two months since a three-judge panel of the 5th Circuit Court of Appeals declined to issue an injunction pending the appeal of that district court decision. 

Late last week, however, a different three-judge panel of that same appellate court concluded that the employees had established irreparable harm to support their claim for injunctive relief and sent the case back to the district court to reconsider its prior ruling in light of that holding.

I don't want to focus on the two-judge majority opinion … other than to say that it is outrageously out of line with every single other judicial decision ever to consider the legality of a private employer's vaccine mandate.

Instead, I want to focus on the 58-page dissenting opinion authored by Judge Jerry Smith, who spat pure venom at the unsigned majority opinion.

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." Perhaps the majority agrees. Why else shrink behind an unsigned and unpublished opinion?

He's not wrong. He probably could have said it in a manner more fitting of the robe he wears, but he's not wrong. 

It is a bedrock principle of equity that one cannot obtain an injunction if one has available an adequate remedy at law. In this case, United's unvaccinated employees have that remedy available to them. United placed them on unpaid leaves as a reasonable accommodation until such time as it is safe for them to return to work unvaccinated. If they ultimately prove discrimination in United's handling of their accommodation requests, their remedy lies in backpay and other damages, not in an injunction ordering them back to work.

So while I question wheher it is wise to write such a caustic dissent, Judge Smith's analysis is 100 percent correct.