Fifth Circuit Denies Injunction Pending Appeal in Vaccine Mandate Case

Are the threats of termination for failing to get vaccinated an irreparable injury? You are not. John Does 1-3 v. MillsJustice Gorsuch’s opinion on the matter answered that question. Yes. Justice Barrett appeared to concur with the conclusion. Please enter no. A court may order reinstatement, backpay, or restoration of benefits (such seniority) if the wrongful termination is made. In a case challenging United Airline’s mandate for vaccines, last month, the federal district court came to a similar conclusion. This is not a post I wrote aboard United Flight 103. Because the employees were eligible for backpay, this court determined that there wasn’t an irreparable injury.

Injunction sought by United workers in lieu of appeal to the Fifth Circuit. The injunction was denied by a three-judge panel consisting of Ho, Haynes and Stewart. While the majority supported the District Court decision’s reasoning, they also referenced the Supreme Court’s recent order. Dr. A v. Hochul. Although this shadow docket ruling was not based on reasoning, it appears to have precedential value.

Judge Ho disagreed and presented an entirely different view of irreparable injuries.

ErstJudge Ho admits that “garden variety” is not an irreparable injury. This case however is different.

United doesn’t want anyone to be fired. United is actually trying to force its employees to receive the COVID-19 vaccine regardless of religious objections. The obvious burden of religion is to force people to make a choice between their faith or their livelihood. Be clear: Vaccine mandates such as the one United is trying to impose in this country are a serious threat to religion. Crisis of conscienceFor many faith-based people. It forces them to choose between the two most profound obligations they will ever assume—holding true to their religious commitments and feeding and housing their children. Many consider this the greatest responsibility. Hobson’s decisions are horrifying. It is an irreparable, quintessentially permanent injury that warrants preliminary injunctive relief.

I am in agreement. I agree.

SecondJudge Ho points out, however that the District Court’s decision was inconsistent with the recent circuit precedent regarding the OSHA vaccination mandate.

Our court acknowledged this fact just weeks ago. When employees have to decide between their beliefs, or their benefits, they can suffer irreparable injury.. Our colleagues stated it like this: “It’s clear that denial of petitioners’ proposed stay would cause them irreparable harm.” Because the federal vaccine mandate “threatens” to “substantially burden the liberty interests and reluctant individual recipients placed to a choice of their job(s), or their jab(s). BST HoldingsL.L.C. v. OSHA, 17 F.4th 604, 618 (5th Cir. 2021).

Here, the panel appeared to overlook the irreparable injury analysis. BST Holdings. That analysis was supported by me here.

TroisièmeJudge Ho quotes his January 2020 concurrence. Horvath against City of Leander. The opinion was about a mandate to vacate shortly before the COVID-19 pandemic.

Just a few days before COVID-19 was officially introduced in the United States, a court heard a case regarding a religious objection. One firefighter opposed both the flu vaccine as well as the TDAP vaccine for religious reasons. He first requested a religious accommodation from the city. The second was not granted. That was what I did. A mandate for vaccines that doesn’t take into consideration faith-based objections could substantially impact religious freedom by “forcing” them to be taken into account.[ing]Citizens must choose whether to follow their faith or live for the best of both worlds. Horvath against City of Leander, 946 F.3d 787, 799 (5th Cir. 2020 (Ho, J. concurring in part of the judgment and dissenting in part). Here, the same basic principles should be applied.

That surprised me! HorvathIt hasn’t received more attention. Judge Ho was in many ways a prelude to the analysis of Justice Gorsuch’s dissension. John Does 1-3 v. Mills. Ho wrote:

Unter SmithGovernment can regulate religious activity without the need to meet strict scrutiny so long that it’s a “neutral rule of general applicability.” 879 U.S. This rule doesn’t apply if the government gives exemptions to certain people but not others. Religious liberty deserves better than that—even under Smith. It is not clear, based on this case’s record that the city policy is a neutral law of general application.

The city allowed exemptions to be granted in certain contexts but not in others.

The record also confirms the city’s existence. In arguably identical situations, apparently open to granting exemptionsAs part of its flu vaccination policy, Yet for no reason—or at least none that is apparent from the record—theThe same city refused to grant a similar request for a religious exemption in the case of the same firefighter who was seeking the TDAP vaccination.. The city would have the chance to show that Remand is not an analog of the TDAP flu vaccine. neutral and generally applicable)—or that it has a compelling interest in insisting that Horvath take the TDAP vaccine, but not the flu vaccine. 

Judge Ho was correct long before the pandemic.

FinallyJudge Ho asserts that no monetary damages can be used to remedy the injuries.

A monetary award could remedy a conscience crisis, regardless of whether it was caused by industry or government. It’s difficult to see how.. Let’s take this example: If a person agrees to United’s mandate, despite their faith, he doesn’t lose pay. But he will have to wrestle with self-doubt—questioning whether he has lived up to the calling of his faith. Likewise, the person who refuses must also wrestle with self-doubt—questioning whether his faith has hurt his family, and whether living up to his commitments was worth sacrificing the interests of his loved ones. The idea that there is a monetary reward for faith could offset these deep challenges to faith would be a misinterpretation of the nature of religious conviction.. It doesn’t matter if the mandate is from D.C.

In the midst of the pandemic, many jurists have “misunderstood the entirety of religious conviction at its highest foundational level”. Judge Easterbrook was perhaps the most clear example of this misunderstanding. Judge Easterbrook wrote that “Feeding the body requires teams to work together within physical spaces. But churches can also feed the spirit through other means.” It is up to the judiciary to do more.

The Supreme Court will decide in a suitable case and hopefully, soon, whether the threat of vaccine termination is an irreparable injury.