Realtors' call for rehearing in Justice Department suit denied

In a pair of rulings, the U.S. Circuit Court of Appeals for the District of Columbia has rejected the National Association of Realtors petition for a rehearing in its case with the Justice Department.

The latest actions follow a 2-1 split decision that allowed the Biden Administration to reopen a case the trade group thought it had settled while Donald Trump was president.

But the Biden Administration never finalized the agreement and looked to reopen the investigation.

"This ruling stands in opposition to years of precedent on the interpretation of government contracts and the bedrock principle that the government must honor its word," a NAR spokesperson said. "We are evaluating all remaining legal options and are committed to exploring all avenues to ensure the DOJ is held to the terms of our 2020 agreement."

Some speculated that the April ruling could lead to more involvement by the Justice Department in cases involving real estate broker commissions and multiple listing services activities. Most recently, the Department filed an amicus brief, albeit in support of neither side, calling on Ninth Circuit Court of Appeals to reopen a case filed by Real Estate Exchange, also known as REX, against NAR and Zillow.

NAR has also entered into settlement agreements with some of the various plaintiffs in the buyer's real estate broker fee commission cases, with a number of observers speculating that it wouldn't have taken the action without the Justice Department's blessing. But the DOJ's actions since then have dispelled that conjecture.

After the April decision came out, NAR filed an appeal asking for both a rehearing among the three judge panel that initially decided the matter, as well as for an en banc hearing, where all members of the court would then rule on the case.

Both motions were rejected in single-page rulings without detailed explanation.

"Upon consideration of appellee's petition for panel rehearing filed on May 20, 2024, it is ordered that the petition be denied," wrote the unanimous three-judge panel consisting of Judge Karen Henderson, Judge Justin Walker and Judge Florence Pan.

The entire court, with the exception of Judge Bradley Garcia, participated in the unanimous ruling denying NAR's request.

"Upon consideration of appellee's petition for rehearing en banc, the response thereto, and the absence of a request by any member of the court for a vote, it is ordered that the petition be denied," the unsigned ruling said.