“No delay” was the theme last week at the D.C. Circuit. In one case, the court denied a temporary injunction against the TikTok ban-or-sale requirement going into effect. In another case, the court denied a petition for review on the ground that the agency would have reached the same result on remand even without the asserted errors.

First, there was more activity in TikTok Inc. v. Garland. On December 6, a panel held that the ban-or-sale requirement of the Foreign Adversary Controlled Applications Act did not violate the Constitution. (See Seth Davis’s post here for more on the opinion.) Last week, the D.C. Circuit issued an order denying an injunction pending certiorari and the change in administration. The panel noted that “[t]he petitioners have not identified any case in which a court, after rejecting a constitutional challenge to an Act of Congress, has enjoined the Act from going into effect while review is sought in the Supreme Court.” In “the interest in preserving the Supreme Court’s discretion,” the panel denied a temporary injunction.

Second, the D.C. Circuit issued a published opinion in Acumen Capital Partners, LLC v. NLRB. The NLRB found that the petitioner discharged an employee because of protected union activity, in violation of the National Labor Relations Act. The D.C. Circuit, in an opinion by Judge Rogers, concluded that the NLRB’s findings were supported by substantial evidence. Under the Wright Line test, the NLRB General Counsel had the burden of establishing that the employee engaged in protected union activity, that the employer had knowledge of that activity, and that the employer had anti-union animus. The petitioner argued that the NLRB lacked substantial evidence of the second and third elements.

As to knowledge, the court agreed with the NLRB that there was direct evidence of one supervisor’s knowledge and a basis to infer that the company’s owner had knowledge. The NLRB had also relied on the “small plant doctrine,” which applies when “the facility is small and open, the work force is small, the employees make no great effort to conceal their union activities, and management personnel are located in the immediate vicinity of the protected activity.” The court did not address the doctrine because it had “no substantial doubt” that the NLRB would reach the same result without applying the doctrine if the court remanded.

The court also declined to decide several issues as to animus. First, it declined to decide whether the NLRB erred by imputing the supervisor’s animus to the company in the absence of evidence that the supervisor was involved in firing the employee. Second, it declined to decide whether the owner’s statement that the company was a “non-union building” was protected under Section 8(c) of the NLRA because it “contain[ed] no threat of reprisal or force or promise of benefit.” The court instead upheld the NLRB’s finding of animus based on the timing of the discharge, evidence that the basis was pretextual, and evidence that the discharge was disproportionate. Once again, the court had “no substantial doubt” that the NLRB would reach the same result on remand without the asserted errors.