The “Good Ship Fifth Circuit” Denies En Banc Review in Sambrano v. United Airlines

A divided Fifth Circuit panel ruled in February Sambrano v. United Airlines. In this instance, the airline had to require that its employees were vaccinated. The Judges Elrod, Oldham ruled that in Title VII cases, a Federal Court could order a preliminary injunction. Judge Smith voted against, and he did so very strongly. You can read my article about this case here.

Judge Smith was very disturbed by the decision of the majority not to publish their opinion. Smith called upon the Fifth Circuit to allow rehearing in banc but acknowledged that it wasn’t likely, since the panel opinion had not been published. He wrote:

Unpublished opinions are just one reason why you should vote against en banc scrutiny. Today’s ruling has set the Good Ship Fifth Circuit ablaze. All hands are needed.

It takes nine people to review a Fifth Circuit case. Smith got only four. The en banc court rejected Smith en banc by a vote 13-4. Judges Costa and Higginson joined Smith. Smith wrote a dissident that explained why the panel’s opinion bothered him. This case has some historical significance.

Judge Smith first explains that the majority has “disposed” his 1989 opinion:

Und [the panel] resurrects a forty-nine-year-old Fifth Circuit decision that the Supreme Court long ago relegated to the dustbin 4—while discarding a more recent decision that has been cited about three hundred times.5

4 Drew, v. Liberty Mut. Ins. Co., 480 F.2d 69 (5th Cir. 1973).

5 White, 862 F.2d 1209 (5th Circuit). 1989) (Smith, J.Politz, King, JJ. joined the group.).

Judge Smith emphasizes that he wrote the following. CarlucciThis was something I didn’t realize until I saw the panel opinions. This case was only released two years after Smith began his tenure.

Judge Smith then reminisces on a 1996 Fifth Circuit rule modification.

This court ruled that any unpublished opinions published after 1996 were not precedential.20 I don’t think it makes sense to overload reporting systems with repetitive opinions that have no impact on the immediate parties.

However, Judge Smith opposed the rule change. But he was not the only one.

The change attracted a lot discussion. With a couple of other judges I voted against the amendment.By then all the other circuits had taken that course. We detractors warned, inter alia, that it would be too easy for any given panel majority to avoid the consequences of its decision—regardless of its importance—merely by adding the customary “do-not-publish” footnote. A panel could declare the winner and not worry about what it might do to future cases. A panelist could also condition their consent to keep the opinion private.

Judges are not known for bringing up internal discussions about changes to the rules. My most recent memory is Judge Willett’s reference to an internal policy of the court regarding en banc review for interim rulings. This 1996 policy change, however, is not new. Most of Judge Smith’s current clerks were probably in diapers during President Clinton’s re-election.

Judge Smith now charges Judge Elrod and Oldham with exploiting the loophole in the 1996 rule changes.

Our concern was prescient. According to my panel dissension, the “obvious consequence” of the majority’s decision is to encourage today’s Blue Plate Special cause without making sweeping legal changes which may not always result in the same outcomes.22 Using the unpublished opinion database to your advantage―a device that the full court has now fully validated by denying re-hearing.

Thirdly, Judge Smith is concerned that other panels might avoid an en banc review by making the opinion unpublished.

The en banc court declined to raise a finger after a narrow vote. A future panel who wishes to adopt the “one-and-done” decisionmaking method can be more confident in knowing that there won’t be any consequences.

Judge Smith’s conclusion:

While I believe my fellow panel members have valid reasons to vote not to cancel the panel opinion, and to hear this case again en banc, it is a waste of time. Principled decisionmaking. 

The rule of law is replaced by this result. Rule of whim. I respectfully disagree. 

The Good Ship Fifth Circuit floats along, however.

Judge Ho signed a concurendum to the denial for rehearing. Judge Ho clerked under Judge Smith! Judge Ho supports the panel’s opinion.

To millions of people of faith—including the members of the Supreme Court—it’s painfully obvious that there’s no way to calculate damages to compensate for the loss of one’s soul.

Judge Ho addressed another issue that goes beyond the details of this particular case. Conservatives tend to prefer the interests of corporations to the well-being of workers. In recent years this trend has changed as corporations are now more focused on progressive politics and shareholder value. As conservatives look to limit companies who violate traditional values, we are seeing them use the state’s power to do so. SambranoAn example of the new dynamic is this: A company forced employees to get immunized, and decreased exemptions for religious reasons. We now have some insight into the fact that two-dose vaccinations with no booster shots provided little protection.

Judge Ho addresses these issues. He says that companies are increasingly violating religious beliefs. This is an injury the majority of panel members deemed irreparable.

It is important to know why the opposition is correct, which is true in this case. The law isn’t the only thing that has changed, it is the industry itself. Historically, corporations typically focus on increasing shareholder value—not on imposing certain cultural values on others. This is quickly changing. began by imagining a hypothetical employer who doesn’t care how productive an employee you might be—he insists that you abandon certain religious beliefs he finds offensive, whether it’s abortion, marriage, sexuality, gender, or something else. Here’s the truth: This is rapidly becoming a reality. There are many examples of this. . . . Although this may not be the first case, I believe it won’t be the last.

Injunctive relief is a common solution in these cases.

Today’s point is less ambitious. We already know the new. Corporate trendit is doing to its employees. Workers across the nation are being violated by it. In cases such as this, there is no way to protect the workers’ religious convictions. Injuries are permanent. Therefore, my court has taken the correct action today. This is a far cry from the dissent. Contrary to the dissent I do not believe our circuit will stand alone. Cases like these are bound to multiply throughout the country, provided corporate trends continue. However, if the circuit is unable to defend religious liberty on its own, I will still be grateful for their actions.

Judge Ho refers Vivek Rajaswamy to his book. Woke, Inc.Ramaswamy was a Goldman Sachs employee, and he had heard about the “Golden Rule” from a colleague.

He laughed and said, “Look, do as the boss commands.” Then, he smirked and replied: “You’ve ever heard about the Golden Rule?”

“Treat people like you would want them to treat.” “Treat others like you want to be treated?” I inquired.

“Wrong,” said he. “He who owns the gold sets the rules.”

This is what I called the “Goldman Rule”. That summer, I did learn something.

The Goldman Rule has lost its monopoly over the right.

Judge Jones was my favorite example of conservatism in the Fifth Circuit. Judge Smith is also not far behind. Is this the right outcome? Or ruling for the multinational corporation but against the worker Oder ruling in favor of a Title VII claimant So-called Waking capitalismThe lines blurred.