Last month the DC Circuit issued an opinion awarding attorneys' fees to the defendant in a suit brought by the National Labor Relations Board (NLRB) against an employer for allegedly violating the National Labor Relations Act (NLRA). The court found that the NLRA had pursued its case through trial and an appeal with the knowledge that its position was in opposition to the established law of the circuit, and awarded US$17,649 in attorneys' fees to the defendant/appellant.

The court awarded the appellant attorneys' fees to reprimand the NLRB for pursuing a policy termed "nonacquiesence." As the court observed, the NLRB had a history of pursuing appeals that were clearly in opposition to the law of the relevant circuit, even though the NLRB had little history of petitioning the US Supreme Court in the event of an inevitable adverse decision. The court stated its belief that the NLRB used the "nonacquiesence" policy to bully companies into obeying its commands, regardless of the applicable law, by threatening companies with the obligation to fund an appeals process the court summarized as: "[w]e don't care what the law says, if you want to beat us, you will have to fight us."

This case is not the first time a party appealing an NLRB ruling has recovered attorneys' fees for defending against legally unsupportable positions. The court cited an 11th Circuit case awarding attorneys' fees to an appellant in similar circumstances. While it is not commonplace for prevailing appellants to recover attorneys' fees from the NLRB, this decision is evidence that parties can recover fees if a court feels the NLRB has behaved too aggressively toward a counterparty.