JudicialFifth Circuit Rules United Airlines Subjecting Employees to ‘Ongoing Coercion’ with Vaccine Mandate

A three-judge panel of the Fifth Circuit Court of Appeals ruled that the district court erred in denying United Airlines’ employees a preliminary injunction because they had suffered irreparable harm.
February 22, 2022
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A three-judge panel of the U.S. Court of Appeals for the Fifth Circuit ruled in favor of a United Airlines pilot and flight attendant, finding that the airline had caused irreparable injury by requiring them to receive the COVID-19 vaccine or be placed on indefinite unpaid leave. 

The district court has been reversed and the case remanded for further consideration of the preliminary injunction.

North Texas pilot David Sambrano sued the airline last September after he sought a religious exemption from the vaccine requirement. Sambrano, who has been a pilot with United for 31 years, based his request on the vaccine’s development using fetal tissue. Sambrano says he regularly refuses vaccination as an adult based on this same belief. The accommodation he was offered was indefinite unpaid leave.

In its recitation of the facts of the case, the per curiam opinion of the court pointed out that United does not require its passengers, employees in other countries, or pilots from other airlines who may ride in the cockpit jumpseat to be vaccinated. A per curiam opinion is one issued by the court without a specific author. 

The airline made an extensive inquiry into the religious beliefs behind the request, sometimes even asking for a letter from a religious official attesting to the religious belief. 

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The court drew attention to this investigation in a footnote saying, “United’s bizarre inquisition into the sincerity of its employees’ beliefs is somewhat at odds with our usual approach of taking parties at their word regarding their own religious convictions.” 

After the extensive inquiry into the employee’s religious background, if United granted a religious exemption, the “accommodation” allowed him to keep his job, but he “could not go to work, would not be paid, and would not receive company-paid benefits.”

In his order denying the preliminary injunction in November, U.S. District Judge Pittman said the motion “must be denied because Plaintiffs do not clearly carry their burden to show they would suffer imminent, irreparable harm absent a preliminary injunction.”

But the Fifth Circuit found that the plaintiffs did suffer irreparable injury because they were being “subjected to ongoing coercion based on their religious beliefs. This coercion is harmful in and of itself and cannot be remedied after the fact.” 

The court also made clear what it wasn’t deciding. “Critically, we do not decide whether United or any other entity may impose a vaccine mandate. Nor do we decide whether plaintiffs are ultimately entitled to a preliminary injunction,” the opinion stated.

Judge Jerry E. Smith, a Reagan appointee, dissented to the opinion, stating that the greatest danger of the majority’s opinion is “the use of a new decision making process that reaches a result which — while unavailable under established law — will prove popular in some quarters.” 

He also attacked the “per curiam” nature of the opinion, stating, “By stripping its judgment of precedential effect, the majority all but admits its screed could not survive the scrutiny of an en banc court.” 

The case is remanded to the district court to consider the remaining factors for granting a preliminary injunction. A preliminary injunction requires a showing of a (1) substantial likelihood of success on the merits, (2) a substantial threat of irreparable injury, (3) the threatened injury outweighs the harm to the party being enjoined, and (4) granting the injunction will not disserve the public interest.

Since the district court has now been reversed in its finding that there was no irreparable injury, it will need to examine the other factors to determine whether to grant the preliminary injunction against United Airlines.

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Kim Roberts

Kim Roberts is a reporter for the Texan in the DFW metroplex area where she has lived for over twenty years. She has a Juris Doctor from Baylor University Law School and a Bachelor's in government from Angelo State University. In her free time, Kim home schools her daughter and coaches high school extemporaneous speaking and apologetics. She has been happily married to her husband for 23 years, has three wonderful children, and two dogs.