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.