Background
Trader Joe’s Company petitioned the Fifth Circuit to review an order of the National Labor Relations Board, and the Board filed a cross-petition. The dispute arose from NLRB proceedings bearing agency numbers 16-CA-291179 and 16-CA-293143.
A Fifth Circuit panel issued an opinion on February 18, 2026, reported at 167 F.4th 766. A member of the court later requested a poll on rehearing the case en banc, and a majority of eligible active circuit judges voted in favor.
The Court’s Holding
The Fifth Circuit ordered that the case be reheard en banc. The court stated that oral argument would occur on a date to be fixed and that the clerk would establish a schedule for supplemental briefing.
Under Fifth Circuit Rule 41.3, the court vacated the February 18, 2026 panel opinion. The order did not resolve the merits of Trader Joe’s petition or the NLRB’s cross-petition.
Key Takeaways
- The Fifth Circuit granted rehearing en banc after a majority of eligible active judges voted in favor.
- The prior panel opinion at 167 F.4th 766 was vacated and no longer represents the court’s operative decision.
- The merits remain pending for supplemental briefing and en banc oral argument.
Why It Matters
The order removes the panel opinion as controlling Fifth Circuit precedent while the full court reconsiders the case. Attorneys relying on the panel’s analysis should account for its vacatur.
The en banc proceeding may ultimately affect the governing law concerning judicial review of the underlying NLRB order, but this order itself announces no substantive labor-law holding.