Heartland Plymouth Court MI, LLC v. National Labor Relations Board

I certainly understand my colleagues’ concern that an agency’s persistent defiance of uniform-and settled circuit precedent could ignite a separatión-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…