The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Wrong But Not En Banc Worthy—D.C. Circuit Decision
Although some of the court's judges disagree with a recent NLRB-related decision, none sought en banc review.
In January, in Duquesne University of the Holy Spirit v. NLRB, a divided panel of the U.S. Court of Appeals for the D.C. Circuit concluded that Dusquesne's "religious mission places it beyond" the NLRB's jurisdiction, and therefore the Board could not order Dusquesne bargain with a union representing the school's adjunct faculty. Judge Griffith wrote the opinion for the court, joined by Judge Rogers. Judge Pillard dissented.
Today, the D.C. Circuit denied a petition by union intervenors seeking rehearing en banc of the decision. Interestingly enough, although Judge Pillard dissented from the original panel decision, neither Judge Pillard nor any other judge on the court sought en banc review. Today's order notes "the absence of a request by any member of the court for a vote."
In a separate opinion concurring in the denial of rehearing en banc, Judge Pillard explains that she adheres to the belief that the panel decision was wrong, but does not believe that this case is the proper vehicle for cleaning up the D.C. Circuit's confused precedent on the extent to which the NLRB has jurisdiction over labor disputes at religious universities. Insofar as the Dusquesne decision builds upon prior D.C. Circuit decisions that no party asked the court to review, this case "en banc review is not now the right vehicle to correct our wrong turn."
Earlier this week, I noted another case of judges finding a decision wrong but not en banc worthy.