In February, a divided panel of the Fifth Circuit decided Sambrano v. United Airlines. This case involved the airline's requirement that employees get vaccinated. Judges Elrod and Oldham held that a federal court could issue a preliminary injunction in a Title VII case. Judge Smith dissented, very vigorously. I wrote about the case here.
Judge Smith was deeply perturbed that the majority chose not to publish its opinion. He called on the Fifth Circuit to grant rehearing en banc, but recognized that review was less likely since the panel opinion was unpublished. He wrote:
The fact that an opinion is unpublished furnishes just another reason to vote to deny en banc scrutiny. But by today's ruling, the Good Ship Fifth Circuit is afire. We need all hands on deck.
