5th Circuit stays United Airlines vaccine mandate

[wildcat09 29257]

Decision here: https://drive.google.com/file/d/1TDlft4KdXque90M_6wr-YvLf93J8sdYw/view

Say it with me:

 

The dissenting opinion by Reagan appointee Jerry Smith is, well:

Quote

In its alacrity to play CEO of a multinational corporation, the majority shatters every dish in the china shop. It rewrites Title VII to create a new cause of action. It twists the record to fit that invention. It defies our precedent and the commands of the Supreme Court. But this majority is no senseless bull. Knowing exactly what it has wrought, the majority declares that its unsigned writing will apply to these parties only. By stripping its judgment of precedential effect, the majority all but admits that its screed could not survive the scrutiny of the en banc court.

We should affirm the district court’s cogent and compelling order denying the plaintiffs a preliminary injunction.1

For every conceivable reason that the plaintiffs could lose this appeal, they should. The statute does not allow the relief they seek. Nor do our precedents; if they did, the Supreme Court has overruled them. If they have not been overruled, fifty years of precedent and centuries of Anglo-American remedies law show that preliminary relief may not issue. If it could issue, it shouldn’t, because the only plaintiffs with standing claim no harm from the “impossible choice” between full postjudgment relief and eternal damnation. If we accepted the plaintiffs’ theory and twisted the facts to support it, we must dismiss the appeal because the plaintiffs have not
exhausted their administrative remedies. If we excused that, they do not answer United’s defenses, so they have not shown that they are likely to win. And if they had shown that, the equities and the public interest would preclude an injunction.

 

[elfenix 34171]

law is calvinball

[DaysOff 7853]

Lolz.

Saw on an airline forum where there was a new hire at swa that was a former ual captain. Way to shit on your career building seniority, but the bubbas don't require no shot.

UAL requires new hires to have yellow fever vaccinations because it's possible they're assigned widebody during initial. They'll administer the shot in the training center since that's pretty obscure unless you're former military.

[elfenix 34171]

and all this coming from the party of "if you don't like it then quit"

[Pig Bellmont 8692]

Fucking insane. Federal Appeals Courts shouldn’t operate like this. A total disregard for the law to satisfy a political outcome. Talk about “activist judges”. 

[Longhorn_Fan68 33843]

2 minutes ago, Pig Bellmont said:

Fucking insane. Federal Appeals Courts shouldn’t operate like this. A total disregard for the law to satisfy a political outcome. Talk about “activist judges”. 

this satire?

[elfenix 34171]

this court isn't even a shadow of the old fifth circuit that did so much heavy lifting integrating the south

[DDD Dad 14252]

10 minutes ago, elfenix said:

this court isn't even a shadow of the old fifth circuit that did so much heavy lifting integrating the south

This.

My former judge was on the 5th before the split.  The current makeup of the court is..."well, I knew John Kennedy.  You're no John Kennedy."

[Jive Turkey 12568]

that dissent is a thing of beauty.

 

[ChuckNorrisActionJeans 2659]

5th Circuit is embarrassingly horribad 

[gmr548 16516]

ELI5 for a non-lawyer - what about precedent/Title VII is so rock solid on this that is such an egregiously bad ruling? Or is it more of a procedural thing - unsigned opinion, likelihood to win appeal in question, etc?

[Brisketexan 104628]

41 minutes ago, elfenix said:

law is calvinball

This.  This is the most profound problem.

A system of laws is supposed to guide the conduct of people, businesses, etc.  That's literally the core function of laws -- they tell us what we can do and what we can't do.  That means that they have to be somewhat knowable and predictable.  They can't be PERFECTLY so, but that's still the core function -- a predictable set of rules for the people to follow.

Now, as someone who regularly advises people on what the law says they can and can't do, and what happens in case of a violation, the only honest answer any lawyer can give his client is "fuck if I know."  The law is whatever the 5th Circuit says it is, and they are bound by no constraints -- even constraints that used to be as simple and obvious as "you can't get a remedy that the statute doesn't provide for or allow."  Chuck that constraint out the door now.  And chuck 100 others out the door.

I spent most of my life listening to purported conservatives lamenting "activist judges."  And now, I live in a world where they've taken the very thing they used to complain about to 11.  Every accusation is a confession, Exhibit infinity.

And for real, I and other lawyers I know have already had to have these conversations with clients: what's the law on topic X?  Well, it SHOULD be Y, if the courts follow precedent and the canons of statutory construction.  But these days, fuck if I know.  It's calvinball.

[Kyrie Eleison 9312]

3 minutes ago, gmr548 said:

ELI5 for a non-lawyer - what about precedent/Title VII is so rock solid on this that is such an egregiously bad ruling? Or is it more of a procedural thing - unsigned opinion, likelihood to win appeal in question, etc?

and while you're at it, please give full discussion of Gibbons' theories in his "Rise and Fall of the Roman Empire."

[Willfully Horn 7915]

 

[Jive Turkey 12568]

18 minutes ago, gmr548 said:

ELI5 for a non-lawyer - what about precedent/Title VII is so rock solid on this that is such an egregiously bad ruling? Or is it more of a procedural thing - unsigned opinion, likelihood to win appeal in question, etc?

Under the plain language of Title VII, only the EEOC (or the Attorney General in a case involving the government) can seek a preliminary injunction under the statute.  Nobody else can.  Not individual plaintiffs.

The majority says there's nothing in the case law precluding a private plaintiff from seeking an injunction, and Fifth Circuit precedent allowed it.

Judge Smith in dissent obliterates this argument and the majority's reliance on Drew:

 

 

[wildcat09 29257]

Even if a private right of action for this were available, injunctive relief at this stage is inappropriate as losing your job is a pretty textbook example of a reparable harm. 

[Longhorn_Fan68 33843]

1 minute ago, wildcat09 said:

Even if a private right of action for this were available, injunctive relief at this stage is inappropriate as losing your job is a pretty textbook example of a reparable harm. 

 I think I understood this one

[Gap03 3287]

The 5th Circuit is willing to bet that the conservative wing of the Supreme Court will be unwilling to take any action here until after the crisis has passed or United just gives up, and they're probably right.  The gutless procedural posturing of the conservative courts, Trump and the rest of the GOP is going to ensure that the U.S. implodes over the next 2-3 years.  Oh well ... we had a good run.

[Brisketexan 104628]

1 minute ago, Gap03 said:

The 5th Circuit is willing to bet that the conservative wing of the Supreme Court will be unwilling to take any action here until after the crisis has passed or United just gives up, and they're probably right.  The gutless procedural posturing of the conservative courts, Trump and the rest of the GOP is going to ensure that the U.S. implodes over the next 2-3 years.  Oh well ... we had a good run.

Shit like this is exactly how "the rule of law" dies.  The shittacular "reasoning" could be copied and pasted from any number of chickenshit backwaters that have rubber-stamp courts doing what "The Party" commands.  This is not rule of law. It's rule of whatever The Party says.  That should fucking worry every American.

[Chad Fuck 17566]

8 minutes ago, Gap03 said:

The 5th Circuit is willing to bet that the conservative wing of the Supreme Court will be unwilling to take any action here until after the crisis has passed or United just gives up, and they're probably right.  The gutless procedural posturing of the conservative courts, Trump and the rest of the GOP is going to ensure that the U.S. implodes over the next 2-3 years.  Oh well ... we had a good run.

[henrygandorf 29177]

[Jive Turkey 12568]

15 minutes ago, Brisketexan said:

Shit like this is exactly how "the rule of law" dies.  The shittacular "reasoning" could be copied and pasted from any number of chickenshit backwaters that have rubber-stamp courts doing what "The Party" commands.  This is not rule of law. It's rule of whatever The Party says.  That should fucking worry every American.

Judge Smith discusses this in his dissent:

The rub is that by its ruling, this panel majority gives leave for any loose-cannon district judge (FN) or future Fifth Circuit majority of two to decide that a cause is so compelling that “the law be damned, we will find a way.” What is the hapless trial judge or conscientious advocate to do in the wake of such a methodology?

In one way, it is fortunate that this case is not precedential. If it were, it could spawn countless misdirections in the law of Title VII and beyond. But published or not, the opinion is grave error: The majority, with what I’m sure are the most wholesome intentions, junks facts, text, history, and precedent, resulting in a one-off change in the law that alters the result for these parties.

FN  96 If there are no such district judges in this circuit today, someday there could be jurists who are delighted that Supreme Court and Fifth Circuit precedent of which they aren’t fond need not be followed.

[Chad Fuck 17566]

33 minutes ago, henrygandorf said:

The rule is "Three Strikes, you're out."  But if the ump likes little Billy, why, he gets four strikes.  Or if not, none at all.  Because he's the ump.

"And that's how we're going to run this courtroom!" Sincerely, 5th Circuit.

[Dahobbs 17447]

I just finished reading his 57 page dissent. I note that the majority opinion comes in at a lean 22 pages. That was blistering. Every paragraph, every sentence, every word. He turned the knob way past 11. 

[staboner 4959]

is there an english version to this thread?

[elfenix 34171]

2 minutes ago, staboner said:

is there an english version to this thread?

yes but has powdered wigs and barristers and courts that can only issue injunctions or monetary relief but not both.

[wildcat09 29257]

3 minutes ago, staboner said:

is there an english version to this thread?

"No law just vibes" and "law is Calvinball" are English translations. 

[Brisketexan 104628]

31 minutes ago, Chad Fuck said:

The rule is "Three Strikes, you're out."  But if the ump likes little Billy, why, he gets four strikes.  Or if not, none at all.  Because he's the ump.

"And that's how we're going to run this courtroom!" Sincerely, 5th Circuit.

It's kinda worse than that.  They created a remedy where none exists.  So it's not like they added a strike.  It's as if they told the judge "consider letting Billy take a base if you think the pitcher is a dick."  The only way you get to base is a walk, hit, or HBP.  They just manufactured a new way to reach base that is nowhere in the rules.

[Brisketexan 104628]

11 minutes ago, Dahobbs said:

I just finished reading his 57 page dissent. I note that the majority opinion comes in at a lean 22 pages. That was blistering. Every paragraph, every sentence, every word. He turned the knob way past 11. 

Yes.  Because it's not just a horrible decision, it is a frontal assault on every foundational stone of the Rule of Law.  The majority opinion is an exercise in pure Calvinball, and fuck the Rule of Law.  He calls out every single shitty thing about the opinion.  And that means there's a LOT to call out.

Which is fascinating, because in my experience arguing in front of Smith, I wondered whether he was even awake.  I shoulda told him that the other side's argument would create a new remedy where none exists, or something like that.  Woulda fired him up maybe.

[JimmyJames 12271]

Smith is a right wing asshole and attacked this decision harder than anything I’ve ever seen him write.

Thats how bad this is.

Edited February 17, 2022 by JimmyJames

[wildcat09 29257]

20 minutes ago, JimmyJames said:

Smith is a right wing asshole and attacked this decision harder than anything I’ve ever seen him write.

Thats how bad this is.

I've never even seen such a blistering dissent to right-wing bullshit from any liberal judges. 

[TwiceHorn 31283]

29 minutes ago, JimmyJames said:

Smith is a right wing asshole and attacked this decision harder than anything I’ve ever seen him write.

Thats how bad this is.

I hadn't figured Smith out.  Yes, Reagan appointee, but at least until fairly recently, kind of moderate in the tradition of the 5th Circuit of old. Certainly not easily aligned with the Edith Jones and Priscilla Owen contingent.  But this latest bunch seems to be far more dangerous.

[JimmyJames 12271]

7 minutes ago, TwiceHorn said:

I hadn't figured Smith out.  Yes, Reagan appointee, but at least until fairly recently, kind of moderate in the tradition of the 5th Circuit of old. Certainly not easily aligned with the Edith Jones and Priscilla Owen contingent.  But this latest bunch seems to be far more dangerous.

Moderate fifth circuit is still right wing asshole, just more of the we need to actually follow the law type. He’s definitely not in the Jones category or the brand new assholes.

And this isn’t at all about trump, who knows absolutely nothing about judges other than he likes the ones who rule in his favor. This is a wholesale takeover of the fifth circuit by the federalist society which I now consider a borderline fascist/terrorist organization.

Edited February 18, 2022 by JimmyJames

[DDD Dad 14252]

Moderate fifth circuit is still right wing asshole, just more of the we need to actually follow the law type. He’s definitely not in the Jones category or the brand new assholes.
And this isn’t at all about trump, who knows absolutely nothing about judges other than he likes the ones who rule in his favor. This is a wholesale takeover of the fifth circuit by the federalist society which I now consider a borderline fascist/terrorist organization.

The current version of the Federalist Society scares me (and I was a member of it at one time).

[Hank Scorpio 17723]

The dissent is entertaining but don’t forget that Smith just upheld the nationwide injunction on the vaccine mandate for federal employees, you know the one that failed in 15 district courts before they found a trump appointee district court judge stupid enough to do it. Smith is just another old conservative crank who only gives a shit when an issue would hurt big business. Fuck him. 

[Hank Scorpio 17723]

1 minute ago, Hank Scorpio said:

The dissent is entertaining but don’t forget that Smith just upheld the nationwide injunction on the vaccine mandate for federal employees, you know the one that failed in 15 district courts before they found a trump appointee district court judge stupid enough to do it. Smith is just another old conservative crank who only gives a shit when an issue would hurt big business. Fuck him. 

Forgot to add that a couple of weeks ago he made a lawyer remove their mask during argument, because he’s an old fucking nut job. 

[Hank Scorpio 17723]

The hits keep coming. I only skimmed it but I think a 6th grader wrote it. 
 

 

[HenryJames 65890]

The 5th Circuit is the Daily Texan of appellate courts.