Thursday, September 5, 2013

D.C. Circuit Denies En Banc Review of Notice Posting Decision

NLRBThis wasn't unexpected, but the D.C. Circuit made it official:  the court today denied the NLRB's petition for rehearing and en banc review in NAM v. NLRB [I've just got access to the rehearing denial at the moment].  This was the notice posting case that we blogged about quite a bit when it came out.

Given the D.C. Circuit's political makeup, there was only a small hope that it would take the case en banc.  I do think there's a good chance the Supreme Court will grant cert.  How they might treat a case is up in the air, of course.  The 5-member majority is obviously not a fan of labor, so it's a good bet that the rule will remain struck down somehow.  However, I think there's a decent chance the Court would not be willing to write such a sweeping decision as the D.C. Circuit's.

Stay tuned.

Hat Tip:  Patrick Kavanagh

-JH

http://lawprofessors.typepad.com/laborprof_blog/2013/09/dc-circuit-denies-en-banc-review-of-notice-posting-decision.html

Labor Law, Labor/Employment History | Permalink

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Comments

I disagree about SCOTUS taking the case. At this point, two circuits have struck the rule down entirely, without a single judge in either circuit (4th and DC) even requesting a poll over a rehearing. So with no circuit split and no appellate judge who thinks it's important enough to write a dissent over, why would the Court take the case? They don't grant cert on the great majority of overbroad DC Circuit opinions striking down agency action, and I don't really see what differentiates this case from any other.

Posted by: Dave | Sep 5, 2013 2:01:44 PM

All valid points, but the D.C. Circuit was so breathtakingly broad, it might spark more interest in the Court. If it looked more like the 4th Circuit decision, I'd agree with you but although the outcomes were the same, those two decisions were very different.

Posted by: Jeff Hirsch | Sep 6, 2013 7:52:42 AM

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