1

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 21, 2016 Decided March 3, 2017

No. 14-1196

FEDEX HOME DELIVERY, AN OPERATING DIVISION OF FEDEX 

GROUND PACKAGE SYSTEM, INC.,

PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD,

RESPONDENT

Consolidated with 15-1066, 15-1116

On Petitions for Review and Cross-Application

for Enforcement of Orders of

the National Labor Relations Board

Maurice Baskin argued the cause for petitioner. With 

him on the briefs was Joshua Waxman.

Michael J. Gray, E. Michael Rossman, Steven P. 

Lehotsky, Warren Postman, Richard Pianka, and Linda E. 

Kelly were on the brief for amici curiae Chamber of Commerce 
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of the United States of America, American Trucking 

Associations & National Association of Manufacturers in 

support of petitioner.

Kellie Isbell, Attorney, National Labor Relations 

Board, argued the cause and filed the brief for respondent. 

With her on the brief were Richard F. Griffin, Jr., General 

Counsel, John H. Ferguson, Associate General Counsel, Linda 

Dreeben, Deputy Associate General Counsel, and Robert 

Englehart, Supervisory Attorney.

James B. Coppess argued the cause and filed the brief 

for amicus curiae AFL-CIO in support of respondent. With 

him on the brief were Lynn K. Rhinehart, Matthew J. Ginsburg, 

and Laurence Gold.

Before: HENDERSON, KAVANAUGH, and MILLETT, 

Circuit Judges.

Opinion for the Court filed by Circuit Judge MILLETT.

MILLETT, Circuit Judge: FedEx Home Delivery 

(“FedEx”) offers package-delivery services to residential 

customers throughout the United States. In FedEx Home 

Delivery v. NLRB (FedEx I), 563 F.3d 492 (D.C. Cir. 2009), 

this court held that single-route FedEx drivers working out of 

Wilmington, Massachusetts are independent contractors, not 

employees, as the latter term is defined in the National Labor 

Relations Act, id. at 504. In this case, the National Labor 

Relations Board held, on a materially indistinguishable factual 

record, that single-route FedEx drivers are statutorily protected 

employees, not independent contractors, when located in 

Hartford, Connecticut. Both cannot be right. Having already 

answered this same legal question involving the same parties 

and functionally the same factual record in Fed Ex I, we give 

the same answer here. The Hartford single-route FedEx drivers 

are independent contractors to whom the National Labor 
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Relations Act’s protections for collective action do not apply. 

We accordingly grant FedEx’s petitions, vacate the Board’s 

orders, and deny the Board’s cross-application for 

enforcement. 

I.

A.

The National Labor Relations Act, 29 U.S.C. §§ 151–

169, offers a variety of protections to “employees” in 

workplaces across the United States. The Act is explicit, 

however, that the term “‘employee’ * * * shall not 

include * * * any individual having the status of an 

independent contractor[.]” Id. § 152(3). Accordingly, “[t]he 

jurisdiction of the NLRB extends only to the relationship 

between an employer and its ‘employees’; it does not 

encompass the relationship between a company and its 

‘independent contractors.’” C.C. Eastern, Inc. v. NLRB, 60 

F.3d 855, 857 (D.C. Cir. 1995). 

In NLRB v. United Insurance Company of America, 390 

U.S. 254 (1968), the Supreme Court held that the determination 

whether a worker is a statutorily protected “employee” or a 

statutorily exempt “independent contractor” is governed by 

“common-law agency” principles, id. at 256. In applying the 

common law, the Supreme Court stressed that “there is no 

shorthand formula or magic phrase that can be applied to find 

the answer.” Id. at 258. Rather, “all of the incidents of the 

relationship must be assessed and weighed with no one factor 

being decisive.” Id. “What is important,” the Supreme Court 

explained, “is that the total factual context is assessed in light 

of the pertinent common-law agency principles.” Id.

Following United Insurance, the Board and this court 

have generally consulted the Restatement (Second) of Agency 

for guidance in conducting the common-law agency analysis. 
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See Lancaster Symphony Orchestra v. NLRB, 822 F.3d 563, 

565–566 (D.C. Cir. 2016); North Am. Van Lines, Inc. v. NLRB, 

869 F.2d 596, 599–600 (D.C. Cir. 1989).

1

 The Restatement

(Second) of Agency provides a non-exhaustive list of ten 

factors to consider in deciding whether a worker is an 

independent contractor: “(1) ‘the extent of control’ the 

employer has over the work; (2) whether the worker ‘is 

engaged in a distinct occupation or business’; (3) whether the 

‘kind of occupation’ is ‘usually done under the direction of the 

employer or by a specialist without supervision’; (4) the ‘skill 

required in the particular occupation’; (5) whether the 

employer or worker ‘supplies the instrumentalities, tools, and 

the place of work for the person doing the work’; (6) the ‘length 

of time for which the person is employed’; (7) whether the 

employer pays ‘by the time or by the job’; (8) whether the 

worker’s ‘work is a part of the regular business of the 

employer’; (9) whether the employer and worker ‘believe they 

are creating’ an employer-employee relationship; and 

(10) whether the employer ‘is or is not in business.’” 

Lancaster Symphony, 822 F.3d at 565–566 (quoting 

RESTATEMENT (SECOND) OF AGENCY § 220(2) (1957)). 

B.

FedEx operates a package-delivery terminal in 

Hartford, Connecticut. Drivers for FedEx deliver packages 

along certain “routes” that are designated by FedEx. A driver 

may serve a single route or multiple routes. Both single-route 

and multi-route drivers operate out of the Hartford location. In 

2007, the Hartford single-route drivers elected Teamsters 

 1

 See also, e.g., Local 777, Democratic Union Org. Comm.

Seafarers Int’l Union of N. Am., AFL-CIO v. NLRB, 603 F.2d 862, 

870 n.22 (D.C. Cir. 1978); Arizona Republic, 349 N.L.R.B. 1040, 

1042 (2007); St. Joseph News-Press, 345 N.L.R.B. 474, 477–478 

(2005); Argix Direct, Inc., 343 N.L.R.B. 1017, 1020 & n.13 (2004).
5

Local 671 (“Union”) to represent them. FedEx subsequently 

filed objections to the election with the Board. 

While that administrative appeal was pending, this 

court decided FedEx I, holding that FedEx drivers at the 

company’s Wilmington, Massachusetts terminals were 

“independent contractors” within the meaning of the National 

Labor Relations Act. 563 F.3d at 504. In so holding, FedEx I

explained that application of the common-law agency test by 

both the Board and this court had shifted over time. See id. at 

496–497. For a period, the Board had focused on “an 

employer’s right to exercise control” over the workers’ 

performance of their jobs. Id. at 496. Gradually, however, the 

Board began to place “emphasis” on what this court described 

as “a more accurate proxy: whether the ‘putative independent 

contractors have significant entrepreneurial opportunity for 

gain or loss.’” Id. at 497 (quoting Corporate Express Delivery 

Sys. v. NLRB, 292 F.3d 777, 780 (D.C. Cir. 2002)). 

Examining the factual record, FedEx I noted that some 

of the common-law factors supported employee status, while 

others were consistent with the drivers being independent 

contractors. See 563 F.3d at 503–504. Looking at those factors 

through the lens of entrepreneurial opportunity, however, this 

court concluded that the indicia of independent contractor 

status “clearly outweighed” the factors that would support 

employee status. Id. at 504; see id. at 498–502. 

FedEx subsequently filed a motion with the Board in 

the Hartford case to dismiss the order against it, principally 

arguing that FedEx I compelled a ruling in its favor. The 

Board, however, issued a decision certifying the Union as the 

exclusive representative of the Hartford single-route drivers, 

without addressing FedEx I or FedEx’s motion to dismiss. 

FedEx then filed a motion for reconsideration, which the Board 

rejected in relevant part as “untimely” and “lack[ing] merit.” 

D.A. 359–360 & n.2. 
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FedEx then refused to bargain with the Union, 

prompting the Union to file unfair labor practice charges

against the company. On October 29, 2010, the Board ruled 

that FedEx violated Section 8(a)(5) of the Act, 29 U.S.C. 

§ 158(a)(5), by refusing to bargain. 

FedEx then filed in this court a petition for review of 

the Board’s October 2010 unfair-labor-practice decision, 

seeking summary disposition based on FedEx I. Before this 

court ruled, the Board sua sponte vacated its decision and 

order. We accordingly dismissed FedEx’s petition and motion

as moot. 

Three years later, the Board issued a revised decision

and order. FedEx Home Delivery, 361 N.L.R.B. No. 55 (Sept. 

30, 2014). Accepting that FedEx I and the case at hand dealt 

with “virtually identical” facts, the Board admitted that FedEx 

I “[could not] be squared with the Regional Director’s 

determination” that the FedEx drivers at the Hartford terminal 

were “employees” under the Act. Id. at 8. Nevertheless, the 

Board “decline[d] to adopt [FedEx I’s] interpretation of the 

Act.” Id. Specifically, the Board disagreed with FedEx I’s 

treatment of “entrepreneurial opportunity * * * as an 

‘animating principle’” for determining whether a worker is an 

“employee” or an “independent contractor” under the Act. 

FedEx Home Delivery, 361 N.L.R.B. No. 55, at 1 (quoting 

FedEx I, 563 F.3d at 497). In the Board’s view, entrepreneurial 

opportunity should merely be one “part of a broader factor 

that * * * asks whether * * * [a] putative independent 

contractor is, in fact, rendering services as part of an 

independent business.” Id. at 10.

The Board added that the “independent-business 

factor” should not receive any special weight in the overall 

common-law agency analysis. Rather, in light of the Supreme 

Court’s instruction in United Insurance that “all of the 

incidents of the relationship must be assessed and weighed 
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with no one factor being decisive,” FedEx Home Delivery, 361 

N.L.R.B. No. 55, at 9 (quoting United Insurance, 390 U.S. at 

258), the Board reasoned that “the weight given to the 

independent-business factor will depend upon the factual 

circumstances of the particular case,” id. at 12. To the extent 

that past Board decisions were inconsistent with those 

principles, the Board declared them to be overruled. Id. 

Applying its newly announced approach, the Board 

concluded that the single-route FedEx drivers based at the 

Hartford terminal were “employees” under the Act. FedEx 

Home Delivery, 361 N.L.R.B. No. 55, at 12–16. The Board 

emphasized, in particular, the “pervasive control” FedEx exerts 

“over the essential details of [its] drivers’ day-to-day work,”

and the “core” nature of the drivers’ work to FedEx’s business 

operations. Id. at 12, 14. 

FedEx again filed a petition for review in this court, as 

well as a motion for reconsideration with the Board, which the 

Board denied. FedEx Home Delivery, 362 N.L.R.B. No. 29 

(Mar. 16, 2015). FedEx then filed a second petition for review 

challenging the Board’s denial of reconsideration. The Board 

filed a cross-application for enforcement of its order. 

II.

As FedEx correctly argues, the question before this 

court was already asked and answered in FedEx I. This case 

involves the exact same parties—the Board and FedEx Home 

Delivery—as FedEx I. The facts are acknowledged by the 

Board to be “virtually identical,” see FedEx Home Delivery, 

361 N.L.R.B. No. 55, at 8, and the Board makes no effort to 

distinguish the two cases factually. The purely legal question

to be decided also is exactly the same: whether the same 

materially indistinguishable facts that added up to 

independent-contractor status in FedEx I add up to 

independent-contractor status in FedEx round two. 
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It is as clear as clear can be that “the same issue

presented in a later case in the same court should lead to the 

same result.” In re Grant, 635 F.3d 1227, 1232 (D.C. Cir. 

2011) (quoting LaShawn A. v. Barry, 87 F.3d 1389, 1393 (D.C. 

Cir. 1996) (en banc)). Doubly so when the parties are the same. 

This case is the poster child for our law-of-the-circuit doctrine, 

which ensures stability, consistency, and evenhandedness in 

circuit law. See LaShawn, 87 F.3d at 1393 & n.2.

2

 Having 

chosen not to seek Supreme Court review in FedEx I, the Board 

cannot effectively nullify this court’s decision in FedEx I by 

asking a second panel of this court to apply the same law to the 

same material facts but give a different answer.

3

 2 Cf. Brewster v. Commissioner of Internal Revenue, 607 F.2d 

1369, 1373 (D.C. Cir. 1979) (per curiam) (“Stare decisis compels 

adherence to a prior factually indistinguishable decision of a 

controlling court.”) (emphasis added); United States v. CardalesLuna, 632 F.3d 731, 734 (1st Cir. 2011) (“[E]ven the narrowest 

conception of stare decisis demands that two panels faced with the 

same legal question and identical facts reach the same outcome.”). 

3 An exception to law-of-the-circuit doctrine applies “when a 

conflict exists within our own precedent,” in which case a 

subsequent panel is “bound by the earlier” of the two conflicting

decisions. United States v. Old Dominion Boat Club, 630 F.3d 1039, 

1045 (D.C. Cir. 2011); see also Sierra Club v. Jackson, 648 F.3d 

848, 854 (D.C. Cir. 2011) (“[W]hen a decision of one panel is 

inconsistent with the decision of a prior panel, the norm is that the 

later decision, being in violation of that fixed law, cannot prevail.”); 

Independent Cmty. Bankers of America v. Board of Governors of the 

Fed. Reserve Sys., 195 F.3d 28, 34 (D.C. Cir. 1999) (“[W]hen faced 

with an intra-circuit conflict, a panel should follow earlier, settled 

precedent over a subsequent deviation therefrom.”) (alteration in 

original) (quoting Haynes v. Williams, 88 F.3d 898, 900 n.4 (10th 

Cir. 1996)). The Board, however, does not assert such an exception 

in this case, nor does it claim that its revised view of the commonlaw agency test is grounded in any prior decision of this court.
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To be sure, on matters to which courts accord 

administrative deference, agencies may change their

interpretation and implementation of the law if doing so is 

reasonable, within the scope of the statutory delegation, and the 

departure from past precedent is sensibly explained. See 

National Cable & Telecomms. Ass’n v. Brand X Internet 

Servs., 545 U.S. 967, 1001–1002 (2005). But the Supreme 

Court held in United Insurance that the question whether a

worker is an “employee” or “independent contractor” under the 

National Labor Relations Act is a question of “pure” commonlaw agency principles “involv[ing] no special administrative 

expertise that a court does not possess.” 390 U.S. at 260. 

Accordingly, this particular question under the Act is not one 

to which we grant the Board Chevron deference or to which the 

Brand X framework applies. See Aurora Packing Co. v. NLRB, 

904 F.2d 73, 75–76 (D.C. Cir. 1990) (“Deference under the 

Chevron doctrine * * * does not apply here because of 

the * * * direction that the Board and the courts apply the 

common law of agency to the issue.”).

The Board contends that FedEx I transgressed the 

Supreme Court’s command in United Insurance to consider 

and weigh all of the common-law factors in evaluating 

employee status. But, as we indicated in Lancaster Symphony, 

FedEx I did consider all of the common-law factors as the law 

requires. See Lancaster Symphony, 822 F.3d at 565 (citing 

FedEx I, 563 F.3d at 492 & n.1, for the common-law factors 

that “the Board, like this court, considers” “[i]n conducting th[e 

employee-or-independent-contractor] inquiry”); see also

FedEx I, 563 F.3d at 504 (“We have considered all the common 

law factors, and, on balance, are compelled to conclude they

favor independent contractor status.”).

Finally, the Board argues that our precedent requires us 

to enforce a finding of employee status if the Board “made a 

choice between two fairly conflicting views.” C.C. Eastern, 

60 F.3d at 858 (quoting North Am. Van Lines, 869 F.2d at 599). 
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But that standard applies only to the Board’s application of 

established law to a particular factual record. See Aurora 

Packing, 904 F.2d at 75 (“[D]eference would only be extended 

to the Board’s determination of employee status—an 

‘application of law to fact’—insofar as [the Board] made a 

‘choice between two fairly conflicting views’ in a particular 

case.”) (quoting United Insurance, 390 U.S. at 260); see also 

C.C. Eastern, 60 F.3d at 858 (characterizing the Board’s 

employee-or-independent-contractor determination as an 

“application of the law of agency to established and undisputed 

findings of fact”). We do not accord the Board such breathing 

room when it comes to new formulations of the legal test to be 

applied. In addition, given FedEx I, we cannot say that this 

case involves “two fairly conflicting views” of how the law 

should apply to these facts. 

III.

In sum, we hold that FedEx I answers the case before 

us, and we accordingly grant FedEx’s petitions for review, 

vacate the Board’s orders, and deny the Board’s crossapplication for enforcement.4

So ordered.

 4 FedEx also argues that the Board erred in overruling two 

objections to the conduct of the election. As FedEx acknowledges, 

“it is unnecessary to reach this issue” if the Hartford single-route 

drivers are “independent contractors” under the Act, Pet’r’s Br. 50, 

as we hold they are.