Fifth Circuit Grants En Banc Rehearing in Trader Joe's NLRB Case

Fifth Circuit Grants En Banc Rehearing in Trader Joe's NLRB Case

On October 30, 2026 the U.S. Court of Appeals for the Fifth Circuit granted rehearing en banc in Trader Joe's Company v. National Labor Relations Board, No. 24-60367, and vacated the panel opinion of February 18, 2026. Under Fifth Circuit Rule 41.3 that opinion is no longer precedent in Texas, Louisiana or Mississippi.

Information last verified on October 31, 2026. This is a developing story; we update it as the record changes.

Jurisdiction scope: This covers federal labor law in the Fifth Circuit, which hears appeals from Louisiana, Mississippi and Texas. It does not change the National Labor Relations Act itself, National Labor Relations Board procedure, or the law in any other circuit. It is a procedural report on the status of one precedent, not an account of how the en banc court will decide the case.

What Happened

The Fifth Circuit entered a two page per curiam order in No. 24-60367 on October 30, 2026, file-stamped by Clerk Thomas B. Plunkett, III. The caption lists seventeen circuit judges, beginning with Chief Judge Elrod. The order is captioned on a petition for rehearing en banc, and it recites that a member of the court requested the poll that produced the vote.

"A member of the court having requested a poll on the petition for rehearing en banc, and a majority of the circuit judges in regular active service and not disqualified having voted in favor, IT IS ORDERED that this cause shall be reheard by the court en banc with oral argument on a date hereafter to be fixed." Source: Trader Joe's Company v. NLRB, No. 24-60367, Order on Petition for Rehearing En Banc (5th Cir. Oct. 30, 2026), at 1 to 2.

The order then disposes of the existing decision in a single sentence. It states that pursuant to 5th Circuit Rule 41.3, the panel opinion dated February 18, 2026 is VACATED, using the court's own capitalization. The order also directs that the Clerk will specify a briefing schedule for supplemental briefs.

The underlying matter is a petition for review and a cross-petition for enforcement of an order of the National Labor Relations Board, docketed at the agency as Nos. 16-CA-291179 and 16-CA-293143. The Board's public case records show both charges naming Trader Joe's at a Houston, Texas location, assigned to Region 16 in Fort Worth, filed on February 23, 2022 and March 29, 2022, and both still carrying an open status.

No merits ruling accompanied the grant. The order sets no argument date, announces no question presented, and says nothing about how the full court views the case.

What the Vacated Opinion Did, and Why It No Longer Controls

The February 18, 2026 panel opinion is still retrievable from the court's published opinions archive, and we read it in full for this report. It was written by Judge Dana M. Douglas for a panel of Judges Dennis, Oldham and Douglas, and it denied Trader Joe's petition for review and granted the Board's cross-application to enforce its order.

The panel majority upheld the Board's findings that the company violated Section 8(a)(1) of the Act by issuing a written warning to a crewmember, and Sections 8(a)(4) and (1) by suspending and then discharging her. On the remedy, the majority held that it lacked jurisdiction to decide whether the Board may order the make-whole relief known as the Thryv remedy, because in its view the company had not urged that objection before the Board as Section 10(e) requires. Judge Oldham dissented more broadly, including from the panel's treatment of the discharge, and on the remedy argued that Section 10(e) imposes an exhaustion requirement rather than a jurisdictional bar, that the company had in fact objected, and that the remedy exceeds the Board's statutory authority.

All of that is now vacated, and the status matters more than the content. A vacated opinion is not a weakened precedent or a disfavored one. It has no precedential force at all, so neither the majority's Section 10(e) holding nor the dissent's reasoning is available to a litigant in the Fifth Circuit as authority. We set it out here only because we obtained the court's own document, and we treat no statement in it as current circuit law.

What the Law Actually Says

Fifth Circuit Rule 41.3 is the mechanism, and its text is broader than the single sentence the order quotes:

"Unless otherwise expressly provided, the granting of a rehearing en banc vacates the panel opinion and judgment of the court and stays the mandate." Source: 5th Cir. R. 41.3, Fifth Circuit Rules and Internal Operating Procedures.

Two consequences follow from that wording. The judgment goes as well as the opinion, so there is at present no appellate judgment denying review or enforcing the Board's order in this case; the petition and cross-petition are pending before the full court. And the mandate is stayed, which is why nothing in the February decision has taken effect.

Rule 41.3 also carries a seldom discussed fallback. If, after voting a case en banc, the court lacks a quorum to act on it for 30 consecutive days, the case automatically returns to the panel, the panel opinion is reinstated as an unpublished and therefore nonprecedential opinion, and the mandate is released. Even on that path the February opinion would not come back as binding authority.

Who sits on the rehearing is set by statute. Under 28 U.S.C. 46(c), in banc rehearing is ordered by a majority of the circuit judges in regular active service, and the in banc court consists of all circuit judges in regular active service.

The substantive statutes the case touches are unchanged by the vacatur. Section 7 of the National Labor Relations Act, 29 U.S.C. 157, protects employees who engage in concerted activities for mutual aid or protection. Section 8(a)(1), 29 U.S.C. 158(a)(1), makes it an unfair labor practice for an employer to interfere with, restrain, or coerce employees in the exercise of those rights. Section 8(a)(4), 29 U.S.C. 158(a)(4), separately makes it unlawful to discharge or otherwise discriminate against an employee because he has filed charges or given testimony under the Act, a protection that runs alongside the state law rules described in our overview of how at-will employment works in the United States and the federal and state protections collected in our guide to whistleblower protections.

The provision the panel divided over is Section 10(e), 29 U.S.C. 160(e), which states that "No objection that has not been urged before the Board, its member, agent, or agency, shall be considered by the court, unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances." Whether that sentence strips a court of jurisdiction or merely requires exhaustion is the question the February panel answered one way, the dissent another, and the en banc court has not answered at all.

Analysis: Why This Matters

The following is analysis from the Recording Law Editorial Team.

The practical significance of this order is narrow and precise: a precedent that existed for about eight months does not exist anymore. That is worth stating plainly because vacatur is routinely misread. An en banc grant is often reported as a signal, and the vacated opinion is then still cited, still summarized, and still relied on. Rule 41.3 does not allow that reading. The opinion is gone as authority from the date of the order.

It is equally important not to over-read the grant in the other direction. A vote to rehear is a vote that the full court should decide the question, which is not the same as a view on the answer. We make no prediction about the outcome and treat any such prediction as unsupported.

What the order changes immediately for federal labor practice in the three Fifth Circuit states is narrow: the February 18, 2026 panel opinion can no longer be cited as authority on Section 10(e) or on anything else it decided. The order does not address, and we did not independently verify the current status of, other Fifth Circuit decisions on the Board's make-whole remedy, including one the vacated opinion itself cited. The circuit split the panel opinion itself acknowledged has not been resolved by anything in this order.

How This Affects You

For anyone tracking a pending matter before the Board or in the Fifth Circuit, the actionable fact is a citation question, not a substantive one. If a brief, memo, policy document or training material cites the February 18, 2026 Trader Joe's decision, that citation is now to a vacated opinion, and the 167 F.4th 766 reporter page does not revive it.

Nothing about the vacatur changes an employee's rights under Sections 7, 8(a)(1) or 8(a)(4) of the Act, or an employer's obligations under them. The statute was not before the panel for amendment and has not been amended. Protections for employees who act together, or who file charges with the Board, rest on the statutory text rather than on this case.

State employment law is likewise untouched. Private sector employment in the three states in this circuit remains governed by each state's own default rules, described in our pages on Texas at-will employment and on the way Louisiana treats at-will employment and its exceptions. Federal labor law operates on top of those rules, and this order disturbed neither layer. With no argument date set, the only scheduled next step is the Clerk's supplemental briefing schedule.

This is general legal information, not legal advice. It covers federal labor law in the U.S. Court of Appeals for the Fifth Circuit, which hears appeals from Texas, Louisiana and Mississippi, and reflects sources verified on October 31, 2026. Laws change and this story is developing; consult a lawyer licensed in your jurisdiction about your specific situation.

Related articles

• How at-will employment works across the United States
• At-will employment rules and exceptions in Texas
• Louisiana at-will employment and the limits on firing
• Whistleblower protections for workers who report

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Last updated: 2026-10-31. This is a developing story; details verified as of 2026-10-31.

Frequently Asked Questions

Can the February 18, 2026 Trader Joe's v. NLRB opinion still be cited?

No. The October 30, 2026 en banc order vacated it under 5th Circuit Rule 41.3, which provides that granting rehearing en banc vacates the panel opinion and judgment. A vacated opinion has no precedential force in the Fifth Circuit.

Does granting rehearing en banc mean the Fifth Circuit disagreed with the panel?

Not necessarily. The order states only that a member of the court requested a poll and that a majority of the active, non-disqualified circuit judges voted to rehear the case. It gives no reasons and decides nothing on the merits.

What is the reporter citation for the vacated opinion?

The en banc order itself reports the February 18, 2026 panel opinion at 167 F.4th 766. That citation now points to a vacated decision.

Which states does this Fifth Circuit order affect?

The Fifth Circuit hears appeals from federal courts in Louisiana, Mississippi and Texas, according to the court's own description of its jurisdiction, so the vacatur removes the precedent in those three states.

What happens next in the case?

The order directs that the case be reheard en banc with oral argument on a date to be fixed later, and that the Clerk will specify a schedule for supplemental briefs. No argument date had been set as of October 31, 2026.

Is the NLRB order against Trader Joe's now enforced by the court?

No appellate judgment enforcing it currently stands. Rule 41.3 vacates the panel judgment along with the opinion and stays the mandate, so the petition for review and the cross-petition for enforcement are pending before the en banc court.