Heartland Plymouth Court MI, LLC v. National Labor Relations Board
2016 WL 5485145
D.C. Cir.2016Background
- Heartland Plymouth Court MI, LLC challenged an NLRB Order holding it violated the NLRA by refusing to bargain over effects of reduced employee hours.
- The Board applied a "clear and unmistakable" waiver standard; the D.C. Circuit follows a contrasting "contract coverage" test.
- Heartland previously appealed the same Board Order to the D.C. Circuit; the case was held in abeyance after Noel Canning, then the Board readopted the Order with a reconstituted panel and refiled enforcement here.
- The Board cross-petitioned to enforce the Order in the D.C. Circuit rather than transfer to the Sixth Circuit (where Heartland operates and which follows the Board’s standard).
- The D.C. Circuit granted Heartland’s petition, denied the Board’s cross-application, and Heartland moved for attorney fees under bad-faith and not-substantially-justified theories.
- The panel majority found the Board engaged in bad-faith litigation nonacquiescence and awarded Heartland $17,649 in fees; Judge Millett dissented as to the scope and basis for a bad-faith fee award.
Issues
| Issue | Heartland's Argument | Board's Argument | Held |
|---|---|---|---|
| Whether the Board’s refusal to follow D.C. Circuit contract-coverage precedent and its litigation posture justified an attorneys’ fee award for bad faith | The Board knowingly relitigated a matter it had lost here, acted without candor, declined certiorari/en banc review or transfer, and pursued enforcement to impose costs — constituting bad faith | The Board defended a policy of nonacquiescence (intracircuit and inter-circuit), citing multi-venue uncertainty and its role in national uniformity | Majority: Yes — the Board’s conduct amounted to bad-faith nonacquiescence; award $17,649. Dissent: No — litigation was permissible given circuit split and prior statements allowing nonacquiescence. |
| Whether the NLRA multi-venue provision (29 U.S.C. §160(f)) justified the Board’s nonacquiescence here | Venue uncertainty was implausible because the Board knew this case had been before the D.C. Circuit and Heartland was unlikely to seek review in an adverse forum | The Board argued multi-venue options make it unforeseeable which circuit will review an order, justifying nonacquiescence | Held: Venue-uncertainty rationale implausible on these facts; it does not excuse candor or pursuit of finality. |
| Proper scope and limits of agency nonacquiescence | Nonacquiescence is permissible only to seek judicial finality (certiorari or en banc) and must be candidly asserted and preserved for review; otherwise it’s abusive | The Board contended it may refuse any circuit’s law it deems incorrect and need not announce nonacquiescence preemptively | Held: Nonacquiescence is defensible only when pursued to secure finality and accompanied by candor; the Board’s expansive view was rejected. |
| Whether Heartland should have mitigated fees (e.g., via summary reversal) or limited fee request | Heartland argued it reasonably litigated and sought fees for Board’s bad faith before the court | The Board and dissent argued Heartland could have sought summary disposition or litigated differently; some claimed Heartland’s fee application overbroad | Held: Majority awarded fees for Board’s bad faith conduct before the court and did not decide the not-substantially-justified claim; dissent thought only limited fees (if any) were appropriate and faulted Heartland's litigation choices. |
Key Cases Cited
- Enloe Medical Center v. NLRB, 433 F.3d 834 (D.C. Cir.) (discussing D.C. Circuit "contract coverage" test and agency nonacquiescence)
- Johnson v. United States Railroad Retirement Board, 969 F.2d 1082 (D.C. Cir.) (limits on nonacquiescence; agency must seek certiorari or en banc review to pursue finality)
- Yellow Taxi Co. v. NLRB, 721 F.2d 366 (D.C. Cir.) (warning against sweeping nonacquiescence and noting possible remedies beyond refusal to enforce orders)
- Enerhaul, Inc. v. NLRB, 710 F.2d 748 (11th Cir.) (awarding fees where NLRB relitigated an issue already decided by the court)
- Chambers v. NASCO, Inc., 501 U.S. 32 (U.S.) (sanctions and fees can vindicate judicial authority and make prevailing parties whole)