We have been following NLRB v. Little River Band of Ottawa Indians Tribal Government and Soaring Eagle Casino and Resort v. NLRB here on the blog for several months now, a pair of cases that are materially similar and were decided around the same time, concerning the NLRB’s jurisdiction over tribal casinos. Based on the sequence of the two decisions, and the subsequent panel’s unanimous disagreement with but deference to the precedent established by the first panel (which was a divided panel), the odd result emerged where the law in the Sixth Circuit rested on the view of a minority of panelists to consider the issue contemporaneously (only two out of the six). If ever there was an occasion that, at first blush, seemed primed for en banc review, it was this. But in Soaring Eagle, just as in Little River, the Sixth Circuit denied a request for en banc review, which simply underscores the extraordinary nature of obtaining such review.
We still await ultimate resolution of the underlying issue, as both panels stayed the mandate pending cert. petitions to the Supreme Court. However, if there is going to be a change, then it is going to come from the Supreme Court, not a rehearing by the full Sixth Circuit.