By way of background, this case returns to the Court for a second time after United National Foods’s original cert petition was GVR’d in light of Loper Bright. In an earlier decision, a divided Fifth Circuit panel relied on Chevron deference to uphold the authority of the NLRB’s General Counsel to unilaterally dismiss an administrative complaint after a party has filed for summary judgment, concluding the National Labor Relations Act was ambiguous on that point. On remand from the Supreme Court the same divided panel ruled once more in favor of the agency. Judge Oldham again dissented, suggesting “‘further consideration’ was an empty formality. . . . Same reasoning, same result, different day.” In his view, “that result conflict[s] with Loper Bright and the Supreme Court’s GVR order[.]” Should the Court grant cert, it will also have the opportunity to clarify that Loper Bright applies with full force to the NLRB’s interpretation of the NLRA, putting that arguably open question to rest.
