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 nonacquiescence 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 contractcoverage 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 selfimposed”). 
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.