Case: 21-11159 Document: 00516206629 Page: 1 Date Filed: 02/17/2022 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED February 17, 2022 No. 21-11159 Lyle W. Cayce Clerk David Sambrano, on their own behalf and on behalf of all others similarly situated; David Castillo, on their own behalf and on behalf of all others similarly situated; Kimberly Hamilton, on their own behalf and on behalf of all others similarly situated; Debra Jennefer Thal Jonas, on their own behalf and on behalf of all others similarly situated; Genise Kincannon, on their own behalf and on behalf of all others similarly situated; Seth Turnbough, on their own behalf and on behalf of all others similarly situated, Plaintiffs—Appellants, versus United Airlines, Incorporated, Defendant—Appellee. Appeal from the United States District Court for the Northern District of Texas USDC 4:21-CV-1074 Before Smith, Elrod, and Oldham, Circuit Judges. Case: 21-11159 Document: 00516206629 Page: 2 Date Filed: 02/17/2022 No. 21-11159 Per Curiam:* Plaintiffs are United Airlines employees. United has given them a choice: receive the COVID-19 vaccine or be placed on unpaid leave indefinitely. The question we address here is narrow. If United’s policy is not preliminarily enjoined, are plaintiffs likely to suffer irreparable harm? For the two plaintiffs who received religious exemptions and remain on unpaid leave, we hold that they are. We therefore REVERSE the decision of the district court and REMAND for consideration of the other factors courts must evaluate when deciding whether to issue a preliminary injunction. 1 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 district court denied such an injunction on one narrow ground; we reverse on that one narrow ground and remand for further consideration. I. In August of 2021, United announced that each of its United States- based employees would be required to get the COVID-19 vaccine. The announcement came with a deadline of either five weeks after the FDA formally approved the vaccine or five weeks after September 20, whichever was sooner. The FDA approved the Pfizer COVID-19 vaccine on August 21, 2021, which set the vaccination deadline as September 27, 2021. Employees * Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4. 1 The dissenting opinion dedicates at least six pages to raising concerns about the unpublished nature of this decision. Under our court’s procedures, any member of this panel may require this opinion to be published. See 5th Cir. R. 47.5.2. Apparently the one thing all three of us agree on is that this decision need not be. And the reason is quite simple: today’s decision is interlocutory, decides nothing on the merits, and answers only the irreparable-injury question asked by the district court. Cf. 28 U.S.C. § 1292(b). The merits—and hence the …
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