Heartland Plymouth Court MI, LLC v. National Labor Relations Board

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Decided September 30, 2016

No. 15-1034

HEARTLAND PLYMOUTH COURT MI, LLC, DOING BUSINESS AS

HEARTLAND HEALTH CARE CENTER - PLYMOUTH COURT,

PETITIONER/CROSS-RESPONDENT

v.

NATIONAL LABOR RELATIONS BOARD,

RESPONDENT/CROSS-PETITIONER

Consolidated with No. 15-1045

On Petitioner’s Motion for Attorney Fees

Charles P. Roberts III, Constangy, Brooks, Smith &

Prophete LLP, argued the case for

Petitioner/Cross-Respondent. With him on the briefs was

Clifford H. Nelson, Jr., Attorney.

Paul A. Thomas, Trial Attorney, Contempt, Compliance,

and Special Litigation Branch, National Labor Relations

Board, argued the cause for Respondent/Cross-Petitioner.

With him on the briefs were Dawn L. Goldstein, Deputy

Assistant General Counsel and David H. Mori, Supervisory

Attorney.

2

Before: BROWN and MILLETT, Circuit Judges, and

GINSBURG, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge BROWN.

Dissenting opinion filed by Circuit Judge MILLETT.

BROWN, Circuit Judge: Heartland Plymouth Court MI,

LLC (“Heartland”) successfully petitioned this Court to review

an Order of the National Labor Relations Board (“the Board”

or “NLRB”). The Order found Heartland violated its

collective-bargaining agreement by failing to bargain over the

effects of reducing employee hours. In granting the petition,

we also denied the Board’s cross-application to enforce its

Order. Neither outcome was a surprise. As we explained in

our Judgment, and as this Court had explained over a decade

earlier, we possess a “fundamental and long-running

disagreement” with the Board over “whether an employer has

violated section 8(a)(5) of the National Labor Relations Act

[NLRA] when it refuses to bargain with its union over a subject

allegedly contained in a collective[-]bargaining agreement.”

See Enloe Med. Ctr. v. NLRB, 433 F.3d 834, 835 (D.C. Cir.

2005). Facts may be stubborn things, but the Board’s

longstanding “nonacquiescence” towards the law of any circuit

diverging from the Board’s preferred national labor policy

takes obduracy to a new level. As this case shows, what the

Board proffers as a sophisticated tool towards national

uniformity can just as easily be an instrument of oppression,

allowing the government to tell its citizens: “We don’t care

what the law says, if you want to beat us, you will have to fight

us.”

Emphasizing the real-world consequences of forcing

parties to waste time and resources litigating, Heartland moves

3

here for an award of attorney fees. In response, the Board

provided a sweeping—and startling—defense of its

nonacquiescence policy. The Board said it would be justified

in refusing to apply the law of any circuit. The Board’s logic

makes no exception for the scenario in Heartland’s case, where

the Board knew that it would end up in a circuit with adverse

law. Nor does the Board reject nonacquiescence when any

presentation would be a putsch—i.e., when no circuit at all

supports the Board’s legal position. See NLRB Atty Fee

Resp. Br. at 13 & n.8. Because the Board’s actions go beyond

whatever limited justification nonacquiescence may have, we

agree with Heartland that the Board is guilty of bad faith, grant

Heartland’s motion for attorney fees, and award it $17,649.00.

I.

Factual Summary

Our Judgment already details the facts giving rise to the

Board’s NLRA suit against Heartland, and we need not repeat

them here. See Dkt. No. 1611466 (hereinafter “Judgment”).

For purposes of nomenclature, however, it is worth noting the

Board’s suit was predicated upon its view that the employer’s

refusal to bargain on a matter allegedly within a

collective-bargaining agreement requires a “clear and

unmistakable” waiver. Our precedent, in contrast,

consistently rejects that view; considering the contents of a

collective-bargaining agreement is a question of “contract

coverage.” This difference will manifest itself in the Board’s

conduct before our Court, which informs Heartland’s motion

for attorney fees.

Heartland first appealed the Board’s adverse Order to our

Court in 2013. See Case No. 13-1227. Due to the Supreme

Court’s pending decision in NLRB v. Noel Canning, 134 S. Ct.

4

2550 (2014), Heartland’s appeal was held in abeyance. When

the Supreme Court found the recess appointments of two

Board members unconstitutional, the Board set aside its Order

against Heartland, and moved to dismiss Heartland’s appeal.

We granted the Board’s motion; the Board reassigned

Heartland’s case to a new panel—now properly comprised of

Senate-confirmed Board members—and readopted its prior

Order. See JA 533–34. Unsurprisingly, Heartland appealed

the Order here again. The Board, too, knew that this was

Heartland’s second appeal to the D.C. Circuit. See NLRB

Merits Br. Cert. as to Parties, Rulings, and Related Cases (“The

ruling under review has previously been before the Court.”);

NLRB Atty Fee Resp. Br. at 4 (“On January 29, 2015, a panel

of the reconstituted Board issued a new Decision and Order

incorporating its earlier decision by reference.”) (emphasis

added).

Given our well-established “contract coverage”

precedent, Heartland’s second appeal was pre-ordained. 1

1

Indeed, our rejection of the Board’s “clear and unmistakable”

waiver policy dates back more than two decades. See NLRB v. U.S.

Postal Serv., 8 F.3d 832 (D.C. Cir. 1993). In Postal Service, we

explained why “the ‘covered by’ and ‘waiver’ inquiries are

analytically distinct: A waiver occurs when a union knowingly and

voluntarily relinquishes its right to bargain about a matter; but where

the matter is covered by the [contract], the union has exercised its

bargaining right and the question of waiver is irrelevant.” Id. at

836; see also Regal Cinemas, Inc. v. NLRB, 317 F.3d 300, 312 (D.C.

Cir. 2003). Despite the Board’s insistence that its “clear and

unmistakable” waiver analysis “has been approved by the Supreme

Court,” see NLRB Atty Fee Resp. Br. at 10, there is no conflict

between the Supreme Court’s pronouncements and ours. Both

Metro. Edison Co. v. NLRB, 460 U.S. 693 (1983) and Mastro

Plastics Corp. v. NLRB, 350 U.S. 270 (1956) recognize that the

question of contractual coverage, one of contractual interpretation, is

antecedent to the waiver question. See 460 U.S. at 706–10; 350

5

Accordingly, Heartland’s petition was granted, and the

Board’s cross-petition to enforce its Order denied, in an

unpublished Judgment without oral argument. See FED. R.

APP. 34(a)(2); D.C. CIR. R. 34(j); D.C. CIR. R. 36(d). As we

said, “[t]he Board’s refusal to adhere to our precedent dooms

its decision before this court.” Judgment at 2. While our

Court previously recognized the Board’s right of

nonacquiescence, see Enloe, 433 F.3d at 838, we did so with a

certain end in mind. See Judgment at 2. Namely, we

presumed the Board would recognize a stalemate with our case

law, one resolvable by seeking certiorari to the Supreme

Court. See Enloe, 433 F.3d at 838.

In this case, the Board neither confessed the error of the

Order against Heartland under our law, nor sought to preserve

its argument against our precedent for certiorari (or even en

banc reconsideration). The Board did not seek a transfer to

the Sixth Circuit either. The Sixth Circuit embraces the

Board’s “clear and unmistakable” waiver policy. See, e.g.,

U.S. at 279 (“The answer turns upon the proper interpretation of the

particular contract before us.”). Curiously enough, the Board used

to recognize this. See, e.g., Bath Marine Draftsmen’s Ass’n v.

NLRB, 475 F.3d 14, 22 (1st Cir. 2007) (“At times, however, the

Board has determined, without much explanation, that the dispute

was solely one of contract interpretation and that it was not

compelled to endorse either of the[] two equally plausible

interpretations.”) (internal quotation marks omitted). By collapsing

the contractual coverage question with the waiver question—as the

Board’s approach does—“an artificially high burden” is imposed on

the employer. See Enloe, 433 F.3d at 837; cf. Dep’t of Navy v.

FLRA, 962 F.2d 48, 57 (D.C. Cir. 1992) (“The result . . . is the

addition of a novel ‘specificity’ requirement to the . . . ‘covered by’

test—i.e., unless the [contract] specifically addresses the precise

matter at issue, then that matter is not ‘covered by’ the agreement . .

. .”).

6

Beverly Health and Rehab. Servs., Inc. v. NLRB, 297 F.3d 468,

480 (6th Cir. 2002). Further, Michigan, covered by the Sixth

Circuit, is where Heartland’s operations exist and where the

conduct underlying the Board’s dispute occurred. See

Judgment at 1–2. It is thus the only other jurisdiction in which

the NLRA permits an appeal on these facts. See 29 U.S.C. §

160(f) (permitting petitions to review the Board’s decisions to

be filed “in the circuit wherein the unfair labor practice in

question was alleged to have been engaged in or wherein [any

aggrieved] person resides or transacts business, or in the

United States Court of Appeals for the District of Columbia”). 2

In lieu of its legitimate options, the Board chose

obstinacy. The Board cross-petitioned our Court to enforce

its Order. In its responsive brief, the Board spent several

pages asking us to uphold its “clear and unmistakable” waiver

policy here. See NLRB Merits Br. at 17–20. Our adverse

precedent made only a cameo appearance, where the Board

spent a few sentences on an illusory distinction. See id. at 21–

22 (stating Enloe does not apply “[b]ecause the effects of the

change in hours are not matters that were covered by the

parties’ agreement,” so, to the Board, “the contract coverage

doctrine does not play a role”). The Board’s tactics forced

Heartland to waste resources in replying. See Heartland

Merits Reply Br. at 2–3, 8–10.

Given the Board’s behavior, it is little wonder that when

Heartland moved for attorney fees, it sought fees under both

2

The fact that Heartland’s parent company “transacts business”

outside the Sixth Circuit is irrelevant. See, e.g., Bally’s Park Place,

Inc. v. NLRB, 546 F.3d 318, 320 (5th Cir. 2008) (noting this view

among multiple circuits, holding “a parent corporation who is not a

named party in the NLRB’s final order may not seek review in the

court of appeals because the parent corporation is not an ‘aggrieved

party’ under the Act”).

7

the “not-substantially-justified” and “bad faith” provisions of

the Equal Access to Justice Act. See 28 U.S.C. § 2412(b)

(allowing “bad faith” attorney fee awards against the United

States government); § 2412(d)(1)(A) (allowing attorney fee

awards against the United States government “unless the court

finds . . . the position of the United States was substantially

justified . . . .”). 3 Though Heartland also argues for attorney

fees related to the Board’s conduct at the administrative level,

our award applies only to the Board’s conduct before our

Court.

Replying to Heartland’s motion, the Board referenced its

general policy of flouting any circuit’s NLRA interpretation

with which the Board disagrees—a policy described

colloquially as “nonacquiescence.” The Board’s rationale for

nonacquiescence is two-fold: (1) the NLRA’s multi-venue

provision, see 29 U.S.C. § 160(f), renders the Board clueless as

to what circuit will govern the enforcement of its orders on

appeal; and (2) the Board’s “uniform and nationwide”

jurisdiction over labor policy gives it the right to disagree with

any circuit, whenever it wants. See NLRB Atty Fee Resp. Br.

at 13–14. The Board ignores the fact that these two rationales

invoke different forms of nonacquiescence. But, the breadth

of the Board’s argument reveals the first reason is largely

delusory. The second reason—a species of nonacquiescence

known as “intracircuit nonacquiescence”—provides the

Board’s overarching rationale. The Board thinks its right to

disagree extends beyond preferring one circuit’s position to

another in a split, but also includes “stak[ing] out its own

position contrary” to any circuit. See id. at 13. The Board

3

As we find that the Board’s conduct before our Court warrants an

attorney fee award for bad faith, we do not address whether

Heartland is also entitled to attorney fees under the

“not-substantially-justified” provision.

8

identifies no limit to its nonacquiescence. Neither the Board’s

abusive tactics nor the extremism asserted in opposition to

Heartland’s motion for attorney fees are justified.

II.

The Propriety of Nonacquiescence

We begin first with the goal of nonacquiescence, as stated

by the Board itself over sixty years ago: to “achieve[]” “a

uniform and orderly administration of a national act, such as

the [NLRA].” See Ins. Agents Int’l Union, 119 NLRB 768, 773

(1957). By “determin[ing]” “whether to acquiesce in the

contrary views of a circuit court of appeals or whether, with

due deference to the court’s opinion, to adhere to its previous

holding until the Supreme Court . . . has ruled otherwise,” id.

(emphasis added), the Board claims to ensure a nationally

uniform labor policy. Understood in the most charitable light,

not acquiescing to a given circuit’s diverging legal

interpretation until the Supreme Court has the last word puts

two roles in harmony—the Board’s role of national say in what

labor law should be, and “the judicial department[’s]”

“emphatic[]” “province and duty . . . to say what the law is.”

Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803).

Our approval of nonacquiescence presumed its stated

virtue: opposing adverse circuit decisions permits the Board to

bring national labor law questions to Supreme Court

resolution. See, e.g., Enloe, 433 F.3d at 838 (“The Board is,

of course, always free to seek certiorari.”); Yellow Taxi Co. v.

NLRB, 721 F.2d 366, 385 (D.C. Cir. 1983) (Wright, J.,

concurring) (observing, in our circuit’s first embrace of

nonacquiescence, it would be “unwise” to oppose it,

“particularly in light of the instances in which positions taken

by the Board were first repeatedly rejected by a large number

9

of circuits, then accepted by others, and later accepted by the

Supreme Court”). Indeed, when our Court discussed different

forms of agency nonacquiescence in Johnson v. United States

Railroad Retirement Board., 969 F.2d 1082 (D.C. Cir. 1992), it

predicated the method’s acceptability upon the agency

redressing a circuit’s conflicting interpretation, not defying it

ad infinitum. See id. at 1092 (“When an agency honestly

believes a circuit court has misinterpreted the law, there are

two places it can go to correct the error: Congress or the

Supreme Court.”).

To that end, nonacquiescence allows for an issue’s

“percolation” among the circuits; generating a circuit split that

can improve the likelihood of certiorari being granted. See

id. at 1093; see also id. at 1097 (Buckley, J., concurring in part

and dissenting in part) (“Catching Congress’s ear . . . is more

easily said than done; and given the huge volume of petitions

for certiorari that flood the Supreme Court, it is often [more]

necessary to establish a split among the circuits before the

Court will examine [the] issue.”); see also SUPREME CT. R.

10(a) (Noting circuit splits as indicative of “the reasons the

Court considers” to grant certiorari). But, nonacquiescence is

justifiable only as a means to judicial finality, not agency

aggrandizement. As we said in Johnson, nonacquiescence is

divorced from its purpose when an agency asserts it with no

stated intention of seeking certiorari. 4 See 969 F.2d at 1092.

4

The seminal academic discussion of agency nonacquiescence adds

an important point to the insistence on seeking Supreme Court

review:

Of course, agencies generally

cannot directly petition the

Supreme Court but must obtain the

clearance of the Solicitor General, .

. . . We do not mean to authorize

10

Achieving judicial finality through national uniformity

requires nonacquiescence to rest on certain conditions. First,

as explained above, any nonacquiescence depends upon the

agency actually seeking Supreme Court review of adverse

decisions. 5 Second, nonacquiescence requires candor in its

application. See Estreicher & Revesz, Nonacquiescence,

supra n.4, at 755. The agency should clearly assert its

nonacquiescence, specifying its arguments against adverse

precedent to preserve them for Supreme Court review. These

two conditions characterize proper nonacquiescence.

In cases where the appeal implicates a statute’s

multi-venue provision, the reviewing Court must assess a third

judicial review of the delicate

negotiations and deliberative

processes that inform the Solicitor

General’s decision whether or not

to petition for certiorari.

Nevertheless, the government

cannot defend continued

nonacquiescence without seeking

Supreme Court intervention merely

because it has chosen to divide

petitioning authority in this way.

Samuel Estreicher & Richard Revesz, Nonacquiescence by Federal

Administrative Agencies, 98 YALE L.J. 679, 756–57 (1989)

(emphasis added).

5

An agency may also petition a circuit to reconsider its adverse

precedent via en banc review, but this is subject to even more limits.

If there is little or no reason for the agency to conclude the circuit is

open to revisiting its precedent—as is the case where a precedent has

been reaffirmed multiple times—the agency should not irritate the

Court with an en banc rehearing petition. Cf. FED. R. APP. P.

35(a)(1).

11

condition: venue uncertainty. When an agency’s assertion of

venue uncertainty is plausible on the facts and proper

nonacquiescence is otherwise pursued, the agency acts in good

faith. But, when an agency’s assertion of venue uncertainty is

implausible on the facts, the situation is no different than

intracircuit nonacquiescence—where the agency’s conduct

would constitute bad faith if its nonacquiescence is not clearly

asserted and accompanied by a preservation of arguments for

Supreme Court or en banc review. Cf. Johnson, 969 F.2d at

1091–92 (rejecting the agency’s assertion of nonacquiescence

when “[t]here [was], of course, some venue uncertainty under

the . . . statute . . . . But the Board has never attempted to invoke

venue uncertainty to justify its actions, and it seems to be

asserting a right of nonacquiescence in its most sweeping

sense.”). Given the facts here, this third condition requires

some elaboration.

Intracircuit nonacquiescence is not the same as refusing to

apply an adverse circuit’s law due to the underlying statute’s

multi-venue provision. For example, when a party appeals an

adverse NLRB order under the NLRA, the statute provides the

appealing party with multiple venue options. See 29 U.S.C. §

160(f). This uncertainty means, in some circumstances, the

Board may have issued its order “without knowing which

circuit court ultimately will review its actions.” Johnson, 969

F.2d at 1091. In those circumstances, the Board’s

nonacquiescence to an adverse circuit’s law is a function of

ignorance, not defiance.

There are, however, multiple instances when an agency’s

assertion of venue uncertainty is implausible, i.e., it knows that

its order will be subjected to an adverse circuit’s law on appeal.

Estreicher & Revesz point out two examples: (1) when “all

courts of proper venue have adopted positions contrary to the

agency’s policy”; and (2) when an order has been issued by an

12

agency on remand from an adverse circuit court which retained

jurisdiction over the action. See Estreicher & Revesz,

Nonacquiescence, supra n.4, at 687 & n.34. In these cases,

any nonacquiescence is necessarily intentional and, thus, of the

intracircuit variety. These are just “example[s],” however,

see id. at 687, and there are others. When a case’s facts result

in only two venue choices for the party appealing the adverse

order, and one circuit’s precedent is in agreement with the

agency’s legal interpretation while the other is adverse to it, the

agency knows any appeal will be to the adverse circuit. See

Ithaca Coll. v. NLRB, 623 F.2d 224, 227 (2d Cir. 1980)

(“Certainly the College was not going to seek review in the

D.C. Circuit when it had a favorable precedent in the Second

Circuit.”). Furthermore, “for [NLRB] purposes, which

circuit’s law should apply is readily ascertainable” when it

cross-petitions to enforce its order before an adverse court,

instead of invoking its transfer rights to enforce the order in a

favorable venue. Cf. Donald L. Dotson & Charles M.

Williamson, NLRB v. The Courts: The Need for an

Acquiescence Policy at the NLRB, 22 WAKE FOREST L. REV.

739, 739 n.1 (1987) (noting the “Board’s [historic] policy

[was] to seek enforcement of its orders in the circuit in which

the unfair labor practice arose. Therefore, for Board purposes,

which circuit’s law . . . is readily ascertainable”). Under any

of these scenarios, the multi-venue provision provides no

plausible stumbling block to the agency knowing where it will

have to defend its order.

In any event, venue uncertainty cannot license improper

nonacquiescence. Nothing about venue uncertainty excuses:

(1) a less-than-candid representation of the agency’s

disagreement with adverse circuit law; (2) the failure to

indicate the preservation of opposing arguments for Supreme

Court review; or (3) the failure to seek certiorari of adverse

decisions to achieve a national resolution. Letting the mere

13

possibility of venue uncertainty excuse those conditions not

only makes nonacquiescence unbounded—it also would be a

failure. Distinguishing, case-by-case, plausible venue

uncertainty from intracircuit nonacquiescence is critical to

avoid “nonacquiescence in its most sweeping sense,” i.e., a

form divorced from the end of judicial finality and the

requirement of candor. See Johnson, 969 F.2d at 1091–92;

see also NLRB v. Ashkenazy Prop. Mgmt. Corp., 817 F.2d 74,

75 (9th Cir. 1987) (“Any future act of ‘nonacquiescence’

should be dealt with by this court in the specific context in

which it occurs so that we may address the agency’s particular

violation of the rule of law and fashion a remedy that is

appropriate in light of all of the relevant circumstances.”).

Unfortunately, the NLRB’s history with nonacquiescence

reveals “its primary goal is . . . to see its interpretation of the

federal labor laws prevail in as many cases as possible, rather

than to change contrary law in particular circuits or . . . serve as

a percolator for the Supreme Court.” See Ross E. Davies,

Remedial Nonacquiescence, 89 IOWA L. REV. 65, 100 (2003);

cf. NLRB v. Gibson Prods. Co., 494 F.2d 762, 766 (5th Cir.

1974) (“It is apparent from the foregoing chronology of this

case that the Board, disagreeing with [the Supreme Court’s]

requirement of contemporary necessity for a bargaining order

in second category cases, has simply sought to avoid it . . . .”).

Indeed, in the only instances we can find where the NLRB ever

addressed the “contract coverage”—“clear and unmistakable”

circuit split before the Supreme Court, the Board was opposing

certiorari. None of the reasons the Board set forth in these

briefs would prohibit seeking certiorari in an appropriate

case. 6 Moreover, we are unmoved by the coincidence of the

6

See NLRB Br. in Opposition to Petition for a Writ of Certiorari,

Road Sprinkler Fitters Local Union No. 699, etc. v. “Automatic”

Sprinkler Corp. of Am., No. 97-1249, 1998 WL 3112646, pp.12–13

14

Board opposing certiorari in cases where certiorari was

denied. See Davies, Remedial Nonacquiescence, 89 IOWA L.

REV. at 78 & n.43 (citing a 1997 letter from the acting NLRB

solicitor to the clerk of the Fourth Circuit, which described the

Board’s “enviable record in the Supreme Court” as “persuasive

evidence that the Board has exercised good judgment in

deciding when it is appropriate to continue to insist that

intermediate courts have overstepped their authority” in

disagreeing with the Board). After all, there is a difference

between theory and practice. See id. at n.45 (noting that, as of

the article’s 2003 publication, “[t]he Board has not been the

prevailing party on the merits in a case before the Supreme

Court since 1996.”). It is difficult to see the Board’s steadfast

refusal to seek certiorari on the “contract coverage” question

as something other than an evasion of finality in the name of

hegemony.

(opposing the Court’s review of this circuit split because “[t]he

[circuit] court’s broader interpretation of the subcontracting clause

does not, therefore, appear to turn on the legal standard,” and “[i]n

any event, the court of appeals’ opinion can be read” to render the

Section 8(a)(5) issue irrelevant); NLRB Br. in Opposition to Petition

for a Writ of Certiorari, General Power Comp. v. NLRB, No. 99-419,

1999 WL 33640169, pp. 13–14 & n.8 (rejecting Supreme Court

review because the petitioner was “jurisdictionally barred” from

raising the contract coverage issue, “the Union did not relinquish its

bargaining rights” “in any event,” and “prior Board decisions that

have applied [the] ‘contract analysis’” that result in “any

inconsistency” “should [be] resolve[d]” by the Board “rather than

this Court”); NLRB Br. in Opposition to Petition for a Writ of

Certiorari, Rochester Gas and Elec. Corp. v. NLRB, No. 12-1178,

2013 WL 3959892, pp. 16–17 (“Although certain aspects of Enloe’s

analysis are in tension with the court of appeals’ analysis here, Enloe

does not support the per se rule that petitioner advocates . . . .

Certiorari therefore is not warranted . . . .”).

15

As a former NLRB Chairman and Chief Counsel,

respectively, explained:

In fact, rather than promoting uniformity, the Board’s

policy of nonacquiescence has fostered a bifurcated

system in which litigants willing to pursue their case

to the appellate level are able to avoid [the] Board[’s]

orders. Thus, the Board’s policy has had the effect of

needlessly protracting litigation, establishing a

two-tiered system of labor law in the same

jurisdiction, encouraging disrespect for [the]

Board[’s] orders, and antagonizing the courts . . . Even

worse, it compels litigants to expend resources in

litigating cases in which it is clear that the

appropriate circuit will not enforce the Board’s

order.

Dotson & Williamson, NLRB v. The Courts, 22 WAKE FOREST

L. REV. at 745 (emphasis added). Our Court shares these

concerns. We noted in Johnson that nonacquiescence allows

agencies to work their will on not only the courts, but on the

American people too. See 969 F.2d at 1092 (“The Board, in

the end, can hardly defend its policy of selective

nonacquiescence by invoking national uniformity. The policy

has precisely the opposite effect, since it results in very

different treatment for those who seek and who do not seek

judicial review.”).

For these reasons, and others, our sister circuits have

spilled much ink admonishing the NLRB’s nonacquiescence.

See id. at 1091 (“Intracircuit nonacquiescence has been

condemned by almost every circuit court of appeals that has

confronted it.”); Dotson & Williamson, NLRB v. The Courts,

22 WAKE FOREST L. REV. at 739–40 n.3 (finding instances of

circuit courts rejecting the Board’s nonacquiescence dating

16

back as early as 1953). We also think “the Board should

reconsider its single-minded pursuit of its policy goals without

regard for the supervisory role of the Third Branch.” See, e.g.,

Glenmark Assocs. Inc. v. NLRB, 147 F.3d 333, 339 n.8 (4th

Cir. 1998).

In Yellow Taxi, we warned the NLRB that sweeping

nonacquiescence “may . . . require[] [us] to secure adherence to

the rule of law by measures more direct than refusing to

enforce its orders.” 721 F.2d at 383. At least one other

circuit has already awarded attorney fees against the NLRB for

relitigating, via nonacquiescence, an issue the Court already

decided. See Enerhaul, Inc. v. NLRB, 710 F.2d 748, 751 (11th

Cir. 1983). More than a decade ago, we told the NLRB that

our positions on the “contract coverage” analysis were

“stalemated” absent the Board seeking certiorari. See Enloe,

433 F.3d at 838. Not only has the Board refused to do so over

the ensuing decade, its theory in support of nonacquiescence

grows even more sweeping. In short, as we said of the Rail

Road Retirement Board in Johnson: “After ten years of

percolation, it is time for the Board to smell the coffee.” 969

F.2d at 1093.

III.

The Board’s Nonacquiescence Against Heartland Amounts To

Bad Faith

The legal dispute in Heartland’s case demonstrates

persistent nonacquiescence without either candor or the pursuit

of judicial finality. As we mentioned, our “contract coverage”

case law has diverged from the Board’s “clear and

unmistakable” waiver policy for almost a quarter century.

Now, seven of the twelve geographic circuits take a side in that

17

debate. 7 With a split engulfing most circuits, there is no

serious argument for nonacquiescence in the name of

percolation. Cf. Johnson, 969 F.2d at 1093 (“But now that

three circuits have rejected the Board’s position, and not one

has accepted it, further resistance would show contempt for the

rule of law.”); id. at 1097 (Buckley, J., concurring in part and

dissenting in part) (“[G]iven the huge volume of petitions for

certiorari that flood the Supreme Court, it is often necessary to

establish a split among the circuits before the Court will

examine an issue”) (emphasis added). And yet here, the

Board gave us no indication at all that it intends to seek

certiorari of any adverse ruling, or en banc reconsideration of

our precedent. Indeed, the Board did not even invoke

nonacquiescence by name until it replied to Heartland’s motion

for attorney fees.

Worse still, the Board’s lack of candor is evident in its

handling of our “contract coverage” precedent. Rather than

confess the error of its Order against Heartland under our law,

the Board’s merits brief, in relevant part, urges us to embrace

the “reasonableness” of its “clear and unmistakable” waiver

analysis. See NLRB Merits Br. at 17–20. Then, as a brief

aside, it pretends there is no conflict between its Order and our

law. See id. at 21 (“[B]ecause the effects in the change in

hours are not matters that were covered by the parties’

agreement, the contract coverage doctrine does not play a

7

Compare Bath Marine Draftsmen’s Ass’n, 475 F.3d at 25 (“[W]e

adopt the District of Columbia Circuit’s contract coverage test . . .

.”); U.S. Postal Serv., 8 F.3d at 836 (same); Chicago Tribune Co. v.

NLRB, 974 F.2d 933 (7th Cir. 1992) (same) with Local Union 36,

Int’l Bhd. of Elec. Workers AFL-CIO v. NLRB, 706 F.3d 81 (2d Cir.

2013) (“clear and unmistakable” waiver); Local Joint Exec. Bd. of

Las Vegas v. NLRB, 540 F.3d 1072 (9th Cir. 2008) (same); Beverly

Health and Rehab Servs., Inc., 297 F.3d at 481–82 (same); Capitol

Steel & Iron Co. v. NLRB, 89 F.3d 692 (10th Cir. 1996) (same).

18

role”). The Board’s reasoning is nonsensical because, if a

subject is not covered by a contract, then the contract certainly

does not clearly and unmistakably waive bargaining over that

matter. “[D]isguis[ing] its disagreement by means of a

disingenuous distinction of adverse circuit precedent” is yet

another indication of improper nonacquiescence. See

Estreicher & Revesz, Nonacquiescence, supra n.4, at 755.

On these facts, nothing about the NLRA’s multi-venue

provision sanitizes the Board’s eleventh-hour nonacquiescence

plea. The Board knew ruling against Heartland would prompt

an appeal to our circuit. Why? It already did. Recall that

Heartland previously appealed the same ruling to our Court

before the case was held in abeyance due to Noel

Canning. See NLRB Merits Br. Cert. as to Parties, Rulings,

and Related Cases (“The ruling under review has previously

been before the Court.”). When the Board readopted its prior

Order against Heartland—with the only material difference

being that the Board panel was now comprised of

Senate-confirmed members—it had every reason to think

Heartland would appeal here again. For another matter,

Heartland’s appellate options were twofold: (1) our circuit, to

which it previously appealed the same substantive Order and

which has favorable law; or (2) the Sixth Circuit, which

embraces the Board’s “clear and unmistakable” waiver policy.

There is no reason to think Heartland would seek appellate

review in a circuit where it would almost certainly lose. See

Ithaca Coll., 623 F.2d at 227 (“Certainly the College was not

going to seek review in the D.C. Circuit when it had a

favorable precedent in the Second Circuit.”). On these facts, it

requires a willful suspension of disbelief to think: (1)

Heartland would not appeal again; and (2) would not appeal

again here.

19

If the Board did not want to sacrifice its Order against

Heartland or defend nonacquiescence before us, it still had a

viable option: transfer the case to the Sixth Circuit. As we

noted above, the facts favored a transfer, and the Board’s Order

would have almost assuredly been enforced in that jurisdiction.

The Sixth Circuit accepts the Board’s “clear and unmistakable”

waiver position; the NLRA allows the Sixth Circuit

jurisdiction over Heartland’s appeal; Heartland’s operations

are within the Sixth Circuit; and the underlying conduct took

place within the Sixth Circuit. 8 Instead, the Board

cross-petitioned for enforcement here. This was punitive.

The Board chose to put its Order on a suicide mission with our

precedent simply to lock horns with Heartland. The Board

was the perpetrator here, not venue uncertainty. 9

8

If the Board moved for enforcement in the Sixth Circuit first, 28

U.S.C. § 2112(a)(1) and (5) would have allowed the Board to file a

motion to transfer venue once Heartland filed its petition for review

here. Alternatively, the Board could have moved to transfer venue

after Heartland filed here, regardless of whether the Board had filed

in the Sixth Circuit first. See Eastern Air Lines, Inc. v. Civil

Aeronautics Bd., 354 F.2d 507, 510 (D.C. Cir. 1965) (“Without

regard to the authority provided by 28 U.S.C. § 2112, a court of

appeals having venue may exercise an inherent discretionary power

to transfer the proceeding to another circuit in the interest of justice

and sound judicial administration.”); see also 28 U.S.C. § 2112(a)(5)

(“For the convenience of the parties in the interest of justice, the

court in which the record is filed may thereafter transfer all the

proceedings with respect to that order to any other court of

appeals.”).

9

Perhaps Heartland could have moved for summary disposition at

the appeal’s outset, see D.C. Circuit Handbook of Practice & Internal

Procedures, § VIII.G, but this does not absolve the Board from

paying Heartland’s attorney fees. “Summary reversal is rarely

granted,” id., and requires establishing that “no benefit will be

gained from further briefing and argument of the issues presented,”

Taxpayers Watchdog, Inc. v. Stanley, 819 F.2d 294, 298 (D.C. Cir.

20

There is one other indication that venue uncertainty is not

the real reason behind the Board’s behavior. The Board’s

response to Heartland’s attorney fee motion offers an extreme

and unbounded view of nonacquiescence. This position,

combined with the Board’s conduct on the merits, embraces

the following nonacquiescence standard: the Board can

employ nonacquiescence: (1) without ever saying so to the

Court until after judgment is entered; (2) without ever seeking

certiorari to resolve the disputed issue; (3) even when it knows

what law will apply in advance of the appeal; and (4) even

when every circuit in the country disagrees with it. See NLRB

Atty Fee Resp. Br. at 13–14. In sum, the Board’s candor-free

approach to nonacquiescence asks this Court to let the Board

do what no private litigant ever could: make legal contentions

not warranted by existing law and supported by no argument

1987). To meet this standard, Heartland would have had to do more

than just file the two-page Petition for Review and the three-page

Statement of Issues it filed to appeal here; it would have had to file a

full-fledged brief in support of its motion for summary reversal,

while likely still filing the Petition and Issues Statement in the

alternative. Then, when the Board filed its inevitable response,

Heartland would presumably file a reply brief. It is not at all clear

this motions practice would have meaningfully reduced Heartland’s

attorney fees. Moreover, Heartland’s argument for attorney fees is

not a rejection of the Board’s right to properly engage in

nonacquiescence. See, e.g., Heartland Reply Br. in Support of Mot.

for Atty Fees, at 3–4. Had the Board replied to Heartland’s motion

for summary dismissal with an indication that it was preserving its

argument against our precedent for Supreme Court review or en

banc reconsideration, it is not clear this would be a case where “no

benefit will be gained from further briefing and argument on the

issues presented,” Stanley, 819 F.2d at 298. In short, even if

Heartland did not make perfect litigation choices, only the Board

made choices in bad faith.

21

for modifying, reversing, or establishing new law. This is

intolerable. See, e.g., FED. R. CIV. P. 11(b)(2). We are under

no obligation to bless the desire of “federal agencies [to] be

subject to no law at all—as, indeed, it appears [the NLRB]

believe[s] to be the case.” See U.S. Dep’t of Energy v. FLRA,

106 F.3d 1158, 1164–67 (4th Cir. 1997) (Luttig, J.,

concurring). Had Heartland’s case been one where the Board

carefully applied nonacquiescence towards national

uniformity, it would have proceeded differently. Where, as

here, the Board “assert[s] a right of nonacquiescence in its

most sweeping sense,” and where its “sincerity” towards

national uniformity is doubtful on the case’s facts, the

theoretical possibility of “some venue uncertainty” is rendered

an implausible justification. See Johnson, 969 F.2d at 1091–

92.

Taken together, the Board’s conduct before our Court

makes out a clear case of bad faith litigation. The standard for

an award of attorney fees for bad faith is met “where the party

receiving the award has been the victim of unwarranted,

oppressive, or vexatious conduct on the part of his opponent

and has been forced to sue to enforce a plain legal right.” Am.

Hosp. Ass’n v. Sullivan, 938 F.2d 216, 222 (D.C. Cir. 1991).

Contrary to the out-of-circuit cases the Board cites, “[t]his

principle is no less applicable” to conduct occurring within

litigation itself. Id. To be sure, “[b]ad faith by a litigant is

serious business, and the standard for finding it is,

appropriately, ‘stringent.’” Id. at 223 (D.H. Ginsburg, J.,

dissenting). But the Board’s conduct before us manifests a

stubborn refusal to recognize any law.

The Board’s obstinacy forced Heartland to waste time

and resources fighting for a freedom the Board knew our

precedent would provide. The Board did nothing to employ

permissible nonacquiescence; it just saved the concept as a

22

post-hoc rationalization in case Heartland had the temerity to

ask us not to make it pay for the Board’s hubris. And worse,

when it did finally mention nonacquiescence in response to

Heartland’s attorney fee motion, the Board proposed an

exasperatingly expansive rationale.

It is clear enough that the Board’s conduct was intended to

send a chilling message to Heartland, as well as others caught

in the Board’s crosshairs: “Even if we think you will win, we

will still make you pay.” This roguish form of

nonacquiescence assures the Board’s gambit is virtually

cost-free—the Board either enjoys the fruits of a settlement, or

it dares a party to employ “the money and power [needed] to

pay for and survive the process of fighting with an agency

through its administrative processes and into the federal courts

of appeals.” Davies, Remedial Nonacquiescence, 89 IOWA L.

REV. at 79. With seeking certiorari or en banc

reconsideration in its hands, the Board can decide it is worth

losing a few battles to still win the war. The Board can thus

continue its adherence to the “clear and unmistakable” waiver

policy without the Supreme Court ever telling it to stop, even

with the occasional defeat in an adverse circuit. This bald

attempt at a litigation advantage is bad faith. See Sullivan,

938 F.2d at 222; cf. id. at 223–24 (D.H. Ginsburg, J.,

dissenting) (arguing against a finding of bad faith because,

unlike here, “I am aware of no reason for believing that the

Secretary thought or could reasonably have thought he would

gain any advantage” from perpetuating confusion about the

law and “chilling” private parties “in the assertion of their

rights”).

A few words in response to our dissenting colleague. The

dissent acknowledges the propriety of awarding Heartland fees

based on the Board’s “failure to candidly acknowledge binding

circuit precedent in its answering brief and for pressing only a

23

gossamer-thin argument for distinguishing Enloe.” Dissent

Op. 8. We also agree that “an agency’s persistent defiance of

uniform and settled circuit precedent could ignite a

separation-of-powers firestorm.” See id. at 1. The Board

should take note of these conclusions.

We are at a loss to understand, however, how either of

these conclusions is consistent with the rest of the dissent. If

the Board’s reply brief merits a fee award, was it not

“thumbing its nose at settled decisional law?” But see id. at 1.

If “Heartland had to file a petition for judicial review in this

circuit,” id. at 4, where else could the Board expect to be? But

see id. As the Board cross-petitioned to enforce its own Order

here—asking us to bless its “clear and unmistakable” waiver

policy in the process—did it not do more than simply “litigat[e]

[Heartland’s] appeal?” But see id. at 3. Is the Board’s

refusal to seek certiorari on the “contract coverage” issue,

even after it has percolated among the circuits, something other

than “persistent defiance” of judicial finality? But see id. at 1.

The Board’s entire litigation conduct before us consisted of:

(1) a reply brief that every member of this Panel finds

susceptible to the bad faith label; (2) a cross-petition the Board

knew our precedent would not permit, but would force

Heartland to respond; and (3) labeling all of this

“nonacquiescence” only after the fact, and with the most

sweeping logic. The bad faith speaks for itself.

Granting Heartland’s motion for attorney fees “serve[s] the

dual purpose of vindicating judicial authority . . . and making

the prevailing party whole for expenses caused by his

opponent’s obstinacy.” See Chambers v. NASCO, Inc., 501

U.S. 32, 46 (1991). We recognize the Board’s unimpeded

access to the public fisc means these modest fees can be

dismissed as chump change. But money does not explain the

Board’s bad faith; “the pleasure of being above the rest” does.

24

See C.S. Lewis, MERE CHRISTIANITY 122 (Harper Collins

2001). Let the word go forth: for however much the judiciary

has emboldened the administrative state, we “say what the law

is.” Marbury, 5 U.S. (1 Cranch) at 177. In other words,

administrative hubris does not get the last word under our

Constitution. And citizens can count on it.

IV.

For the foregoing reasons, we grant Heartland’s motion for

attorney fees and award it $17,649.00 for the Board’s bad faith

litigation.

So ordered.

MILLETT, Circuit Judge, dissenting:

I certainly understand my colleagues’ concern that an

agency’s persistent defiance of uniform and settled circuit

precedent could ignite a separation-of-powers firestorm. But

this case is nothing like that, and I strongly disagree that a

bad-faith award of all the fees that Heartland incurred in this

appeal is warranted.

Awarding fees for bad faith is an exceptional sanction

that should only be employed “when extraordinary

circumstances or dominating reasons of fairness so demand.”

Nepera Chem., Inc. v. Sea-Land Serv., Inc., 794 F.2d 688, 702

(D.C. Cir. 1986). The standards for bad faith “are necessarily

stringent,” Lipsig v. National Student Mktg. Corp., 663 F.2d

178, 180 (D.C. Cir. 1980) (quotation marks and citation

omitted), requiring a factual finding that “the losing party has

acted in bad faith, vexatiously, wantonly, or for oppressive

reasons.” Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421

U.S. 240, 258 (1975) (internal quotation marks omitted).

Moreover, “[b]ecause inherent powers” like an attorneys’ fees

sanction for bad faith “are shielded from direct democratic

concerns, they must be exercised with restraint and

discretion.” Roadway Exp., Inc. v. Piper, 447 U.S. 752, 764

(1980). That especially demanding standard is not met in this

case, for four reasons.

First, for all of the majority opinion’s concerns about an

agency thumbing its nose at settled decisional law, this case

involves an issue on which there is an inter-circuit conflict

and on which the Board’s position accords with the majority

view. Compare Local Union 36, Int’l Bhd. of Elec. Workers,

AFL-CIO v. NLRB, 706 F.3d 73, 81–82 (2d Cir. 2013)

(adopting the Board’s “clear and unmistakable waiver” test);

Local Joint Exec. Bd. of Las Vegas v. NLRB, 540 F.3d 1072,

1079–1080 & n.11 (9th Cir. 2008) (same); Beverly Health &

Rehab. Servs., Inc. v. NLRB, 297 F.3d 468, 481-482 (6th Cir.

2

2002) (same); Capitol Steel & Iron Co. v. NLRB, 89 F.3d 692,

697 (10th Cir. 1996) (same), with Bath Marine Draftsmen’s

Ass’n v. NLRB, 475 F.3d 14, 25 (1st Cir. 2007) (adopting

contract-coverage rule); NLRB v. United States Postal Serv., 8

F.3d 832, 836 (D.C. Cir. 1993) (same); Chicago Tribune Co.

v. NLRB, 974 F.2d 933, 937 (7th Cir. 1992) (same). See also

Mississippi Power Co. v. NLRB, 284 F.3d 605, 612–613 (5th

Cir. 2002) (describing the competing standards).

So there has been no “putsch” here (Majority Op. 3).

This case, by its terms, does not implicate at all the majority

opinion’s concerns about a Board refusal to acquiesce in the

face of uniformly adverse circuit precedent. To be sure, the

Board discussed a potentially sweeping realm for non-

acquiescence in its brief. See NLRB Opp’n to Mot. for Att’y

Fees at 13. But the bad faith for which we can authorize fees

must have occurred in the Board’s actual conduct of its

appellate litigation in the case at hand, not in a later

overstatement in its opposition to attorneys’ fees concerning

hypothetical facts not before us.

Second, the last time the Board was before this court on

this very same issue, this court unanimously assured the

Board that it had “every right” to “refuse[] to acquiesce in our

analysis” of when and under what circumstances the terms of

a collective bargaining agreement may discharge an

employer’s collective-bargaining duties. Enloe Med. Ctr. v.

NLRB, 433 F.3d 834, 838 (D.C. Cir. 2005). See generally,

e.g., Independent Petroleum Ass’n v. Babbitt, 92 F.3d 1248,

1261 (D.C. Cir. 1996) (“[I]ntercircuit nonacquiescence is

permissible, especially when the law is unsettled.”); American

Tel. & Tel. Co. v. FCC, 978 F.2d 727, 737 (D.C. Cir. 1992)

(acknowledging the agency’s “right to refuse to acquiesce in

one (or more) court of appeals’ interpretation of its statute”);

Johnson v. United States R.R. Ret. Bd., 969 F.2d 1082, 1093

3

(D.C. Cir. 1992) (noting the general right of an agency to

engage in inter-circuit nonacquiescence, at least where its

position has not been rejected by every circuit to address the

question). The Board should not be labeled a “bad faith”

actor for taking this court at its word and litigating the appeal

at all, which is what the comprehensive award of attorneys’

fees for the entire appeal does.

In particular, I see nothing remotely approaching bad

faith in requiring Heartland to file its petition for review and

to prosecute its appeal by filing either an opening brief or,

easier still, a motion for summary reversal, see D.C. Cir.

Handbook of Practice and Internal Procedures VII.G. 1 That

is because Heartland is located within the jurisdiction of the

Sixth Circuit, and the law of that circuit is on all fours with

the Board’s “clear and unmistakable waiver” rule. See, e.g.,

Beverly Health, 297 F.3d at 480 (“A management-rights

clause is a waiver of the union’s right to bargain over

[mandatory subjects].”); id. (“A union can waive its statutory

right to bargain [in a collective bargaining agreement], but

such a waiver must be ‘clear and unmistakable.’”) (quoting

Metropolitan Edison Co. v. NLRB, 460 U.S. 693, 708 (1983));

Uforma/Shelby Bus. Forms, Inc. v. NLRB, 111 F.3d 1284,

1290 (6th Cir. 1997) (similar).

Accordingly, as the majority opinion acknowledges (at

5–6, 19), there was nothing remotely bad faith about the

Board’s application and enforcement of its “clear and

unmistakable waiver” rule in the agency proceedings. And

1

See also Cascade Broad. Grp. v. FCC, 822 F.2d 1172, 1174 (D.C.

Cir. 1987) (per curiam) (“We take this occasion to inform the bar

that henceforth we will treat motions for summary disposition in

appeals and petitions for review of agency action as we treat such

motions in appeals from judgments of the district court.”).

4

given the Board’s decision, Heartland was destined to lose

unless and until it sought judicial review in this circuit rather

than the Sixth Circuit. Had the Board filed first in the Sixth

Circuit, Heartland’s petition for review would have been

doomed. In short, having lost before the Board in a

proceeding that quite properly applied the “clear and

unmistakable waiver” rule, Heartland had to file a petition for

judicial review in this circuit and had to affirmatively

prosecute its appeal by filing an opening brief or motion for

summary disposition raising the contract-coverage issue to

have a legal leg to stand on. I do not understand how it could

be bad faith for the Board to require that Heartland do so.

The majority opinion says (at 18) that the Board should

have known the case was destined for this circuit after

remand, and thus apparently should have given up before

Heartland even filed its petition. But as the circuit conflict

attests, plenty of losing litigants before the Board have chosen

to litigate in their home jurisdictions long after this court first

adopted the “contract coverage” rule in 1993, see United

States Postal Service, supra, and even after our reaffirmation

of that rule in Enloe in 2005, see Bath Marine, supra, Local

Union 36, supra, and Local Joint Exec. Bd., supra.

Moreover, this court did not retain jurisdiction after granting

the Board’s motion to dismiss the case in the wake of NLRB

v. Noel Canning, 134 S. Ct. 2550 (2014). See Heartland

Plymouth Court MI, LLC v. NLRB, No. 13-1227 (D.C. Cir.

Aug. 26, 2014). There thus was no guarantee that the second

round of review would land here just because the first one did.

Compare Starbucks Corp. v. NLRB, No. 09-1273 (D.C. Cir.

Aug. 19, 2010) (dismissing petition for review on Board

motion to reconsider in light of New Process Steel v. NLRB,

560 U.S. 674 (2010)), with NLRB v. Starbucks Corp., 679

F.3d 70 (2d Cir. 2012) (second petition for review filed in and

adjudicated by the Second Circuit).

5

To be sure, the Board could have beaten Heartland to the

punch by petitioning the Sixth Circuit for enforcement or

moving to transfer the case to the Sixth Circuit. But the

Board’s failure to deprive an employer of its chosen forum for

review or to forgo imposing on the employer the additional

costs of litigating a transfer motion cannot by itself meet the

“stringent” requirement for bad faith, Nepera Chem., 794 F.2d

at 702.

Third, the majority opinion (at 17) decries the Board’s

failure to have sought certiorari to resolve the circuit conflict

in an earlier case. But, again, the question is whether the

Board litigated this appeal in bad faith, not whether it should

have taken an additional procedural step in some other case.

Sanctioning the Board for failing to seek certiorari is doubly

inappropriate because the questions of whether and when

Supreme Court review should be sought to eliminate the

conflict and establish a single, uniform federal rule rest

exclusively with the Solicitor General in the Department of

Justice and not with the Board. 28 U.S.C. § 518(a); see also

28 C.F.R. § 0.20 (Solicitor General is assigned duty of

“[c]onducting, or assigning and supervising, all Supreme

Court cases, including * * * petitions for and in opposition to

certiorari”). Surely we cannot sanction as “bad faith” the

Board’s failure to make a decision Congress has said it cannot

make.

It also bears noting that cases in which the Board ends up

at loggerheads with this court’s contract-coverage rule do not

appear to arise with significant frequency. Since we first

adopted the contract-coverage rule for Board cases in 1993 in

United States Postal Serv., only Enloe and this case have

arisen in which the Board found itself directly at odds with

circuit precedent. That is only two cases in 23 years. The

Board, moreover, has won more than it has lost in circuit

6

court decisions generally, and in this circuit has argued in

other cases that its order can be sustained under either

standard. See BP Amoco Corp. v. NLRB, 217 F.3d 869, 873

(D.C. Cir. 2000) (“Here, the Board acknowledges the force of

the ‘covered by’ principle but contends it does not apply

because the Board’s decision expressly found that the

collective bargaining agreement did not incorporate the

reservation of rights clauses.”). The frequency with which a

conflict is joined and whether a Supreme Court decision in the

particular case would have any practical effect on the

outcome of the case—whether the dispute over the standard

of review is outcome determinative—are among the

traditional factors that the Solicitor General could reasonably

consider in selecting the issues it chooses to present to the

Supreme Court each year for certiorari review. See Johnson,

969 F.2d at 1097 (Buckley, J., concurring in part and

dissenting in part) (discussing legitimate governmental

considerations that may result in agency non-acquiescence in

conflicting circuit decisions enduring for some time); see

generally Margaret Meriweather Cordray & Richard Cordray,

The Solicitor General’s Changing Role in Supreme Court

Litigation, 51 B.C. L. REV. 1323, 1328–1330 (2010)

(discussing certiorari factors considered by Solicitors

General).

Fourth, the award of fees for bad faith is an equitable

exercise of the court’s inherent power to control litigation

before it. See, e.g., Copeland v. Martinez, 603 F.2d 981, 984

(D.C. Cir. 1979) (award of fees serves to “protect[] the

integrity of the judicial process”). And in this case, Heartland

bears responsibility for a not insignificant amount of the fees

it incurred.

To begin with, given the clarity of our precedent,

Heartland could have short-circuited this litigation by moving

7

for summary reversal. To be sure, a party seeking summary

disposition bears “the heavy burden of establishing that the

merits of his case are so clear that expedited action is

justified.” Taxpayers Watchdog, Inc. v. Stanley, 819 F.2d

294, 297 (D.C. Cir. 1987) (per curiam). But for many of the

reasons the majority opinion discusses (at 4–5 & n.1), the law

in this circuit was just that clear and plainly adverse to the

Board’s position, making this a signature case for such

summary disposition.

Contrary to the majority opinion’s suggestion (at 19 n.9),

an opposition by the Board preserving its arguments for

review en banc or by the Supreme Court would not have

altered the straightforward task of panel disposition since the

law of the circuit would have controlled. See, e.g., LaShawn

A. v. Barry, 87 F.3d 1389, 1393 (D.C. Cir. 1996) (en banc)

(“[T]he same issue presented in a later case in the same court

should lead to the same result.”) (emphasis in original).

Heartland chose instead to initiate the ordinary briefing

process and to then file a full-throated opening brief that

raised additional issues for our review beyond the contract-

coverage dispute. Heartland’s failure to reasonably mitigate

the fees it incurred should factor into the court’s decision to

award fees for bad faith. See Wright v. Jackson, 522 F.2d

955, 958 (4th Cir. 1975) (“An award [of fees] for obstinacy,

although a penalty, is only for the unnecessary efforts

occasioned by the obstinacy.”); cf. Leffler v. Meer, 936 F.2d

981, 987 (7th Cir. 1991) (noting “the duty to mitigate legal

fees by promptly, where possible, disposing of baseless

claims through summary procedures”); Thomas v. Capital

Sec. Servs., Inc., 836 F.2d 866, 879 (5th Cir. 1988) (factoring

into fee award “the extent to which the nonviolating party’s

expenses and fees could have been avoided or were self-

imposed”).

8

Worse still, Heartland itself filed a vastly overblown

application for fees that unjustifiably included the agency

litigation that the Board had every right to pursue under the

Sixth Circuit’s “clear and unmistakable waiver” precedent.

Heartland thus has not exhibited the care and calibration that

equity desires in those who themselves seek equity.

Having said that, the majority opinion (at 17-18) quite

fairly calls the Board out for its failure to candidly

acknowledge binding circuit precedent in its answering brief

and for pressing only a gossamer-thin argument for

distinguishing Enloe. Indeed, I might well have been

persuaded that a small amount of fees should be awarded only

for the portion of Heartland’s reply brief that was dedicated to

rebutting the Board’s frail argument. But that is not the

course that the majority opinion takes or that Heartland

sought.

For the foregoing reasons, I respectfully dissent.