Care One LLC v. NLRB - Court Opinion on Unfair Labor Practice Proceedings

23 - 7475 Care On e, LLC v. NLRB In the United States Court of Appea ls for the Se cond Circuit A UGUST T ERM 2024 No. 23-7475- cv C ARE O NE, LLC, H EALTH BRIDG E M ANAGEMEN T, LLC, C ARE R EAL TY, LLC, 107 O SBORNE S TREET O PERAT ING C OMPA NY II, LLC, D. B. A. D AN BURY HCC, 710 L ONG R IDGE R OAD O PER AT ING C OMPANY II, LLC, D. B. A. L ONG R IDGE OF S TAMFO RD, 240 C HURCH S TRE ET O PER ATIN G C OMP ANY II, LLC, D. B. A. N EWINGTON H EALTH C ARE C ENTER, 1 B URR R OAD O PERA TING C OMPAN Y II, LLC, D. B. A. W ESTPORT H EALT H C ARE C E NTER, 245 O RA NGE A VENUE O PERA TIN G C OMPANY II, LLC, D. B. A. W EST R IVER H EALT H C ARE C ENTER, 341 J ORDAN L ANE O PERATI NG C OMPAN Y II, LLC, D. B. A. W ETHER SFIE LD H EALTH C ARE C E NTER, 2028 B RIDGEPORT A VE N UE O PERAT ING C OMPAN Y II, LLC, D. B. A. G OLDEN H ILL H EALTH C AR E C E NTER, 745 H IGHLAND A VE O PE RATI NG C O LLC, D. B. A. H IGHLANDS H EALTH C ARE C ENTE R, 162 S OUTH B R ITAIN R OAD O PER ATIN G C OMP ANY II, LLC, D. B. A. R I VER G LEN H EALTH C ARE C ENTER, Plaintiffs-Appellants, v. N AT IO NAL L AB OR R EL ATIO NS B O ARD, L AU REN M C F ERRA N, IN HER CAPACIT Y AS A M EMBE R OF THE N ATIONAL L ABO R R EL ATI ONS B OARD, G WY NNE W I LC OX, IN HER CAPACIT Y AS A M EMB ER OF T HE N ATI O NAL L ABOR R ELA TION S B OAR D, M ARV IN K APLAN, IN HIS CAPACIT Y AS A M EM BER OF THE N ATIO NAL L AB OR R ELATIO NS B OARD, D AV ID P RO UT Y, IN HIS CAPACIT Y AS A M EMBER OF THE N ATI O NAL L AB OR R ELATIO NS B OAR D, K ENNETH R. C HU, IN HIS CAP ACITY AS AN A DM INI STR ATI VE L AW J UDGE OF THE N ATIONAL L AB OR R E LATI ONS B OARD, Defendants-Appellees. * * The Clerk of Court is respec tfully directed to amend the captio n as indi cated above.

2 __________ On Appeal from th e Un ited S tates D istr ict C ourt for the D istri ct of Connecticut __________ A RGUED: N O VEMBE R 12, 2024 D ECIDED: F EBRUA RY 5, 2026 ________________ Before: R AGGI, P ÉREZ, and K AHN, Ci rcuit Judges. ________________ Plaintiffs, several health care facilities an d their affiliates, appeal fro m an October 4, 2023 order of the Unite d St ates Distr ict Cour t for th e Distric t of Connecticut (Chatign y, J.) d enyin g the ir motion fo r a preli mina ry in junc tion to h alt proceedin gs against them before the National L abor Relations B oard (“NLRB”) for alleg ed unfair labor practi ces. Plaintiffs submit that the distric t court erred in finding them unlikely to succeed on their claim that the challenged proceedings are ultra vires for two re asons: (1) the Administra tive Law J udge (“ALJ”) who initia lly pres ided ove r the ir vio latio n pr ocee dings was appo inted by a n NLR B whose Board la cked a quoru m of lawfu lly appointed me mbers, see U.S. Const. A rt. II, § 2; and (2) two layers of stat utory for- cause removal protection unconstitutionally s hielded the ALJ from r emoval by the President, see id. §§ 1, 3. We need not here consider the likelihood of pla intiffs succeedi ng on the merits of these claim s because, in any eve nt, they cannot show the irreparable har m required for i njunctive relief. A FFIRMED. Judge P é rez concurs in a separate opin ion.

3 D ANI EL R. B ENS ON (Christi an T. Becker and Amit R. Vora, on the brief s), Kaso witz Benson Tor res LLP, New York, NY, for Plainti ffs-Appella nts. M ICH AEL S. D ALE (Jennifer A. Abr uzzo, P eter Sung O hr, Nancy E. Kessler Platt, Da wn L. Goldstein, Kevin P. Flanagan, Pau l A. Thomas, and Grace L. Pezzel la, on the brief), National Labor Rela tions Board, Washington, DC, for Defendants-Appelle es. R EENA R AGGI, Circuit Judge: Plain tiffs Care O ne L LC, various othe r named h ea lth care faciliti es, and the ir affiliates (collectivel y “Care One”), appe al from an October 4, 2023 order of the United Sta tes Distr ict Co urt for the Distric t of Conne cticut (Rob ert N. Chatigny, Judge) denying their motion for a preliminary injunction to halt proceed ings against them befor e the Nat ional Labor Relations Boar d (“ NLRB”) 1 for alleged unfair labor practices. See Care O ne, LLC v. NLRB, No. 3:23 - cv - 00831, 202 3 WL 6457641, at * 1 (D. C onn. Oct. 4, 2023). Care One sub mit s th at the distric t cour t erred in fi nding it unlikely to succee d on its claim that the challenged proceedings are ultra vires in t wo respects: (1) the NLRB Ad ministrative Law Judge (“A LJ”) who presided over Care One’s violation proce edings was appointed by a Board that lacked a quoru m of lawfully appointed member s, see U.S. Con st. Art. II, § 2; and (2) two layers of statuto ry for- cause removal protection unconstitutionally shield ed the ALJ from rem oval by the Presi dent, see id. §§ 1, 3. We need not here consider the l ikelihood of Care One succeeding on these claims because, in any 1 Hereafter in this opinion, we use “NLRB” to reference the Nat ional Labor Relations Board as an agency; we use “Board” to referenc e the five B oar d members appoint ed by the President who head the a gency.

4 event, it can not show a likelihood of irrepar able harm from the continuance of NLRB proceedi ngs in their present posture as required f or pre limina ry inj unct ive relief. Quite simp ly, all pro ceed ings against Care One b efore the challenged ALJ have concluded, and the only pending proceedings are before the Boar d, all of whose members ha ve now been lawfully appointed, and whic h is empowered to consider all q uestions of law a nd fact de no vo. A cc ordin gly, the order of the district court denying a preliminary in junction to halt pending NLRB proceedings against Care One is affirmed. BACKGROUND I. Legal Framework Before discussing relevant facts, i t is useful to summarize the legal context in which they occurred. T he NLRB is an executive agency established by Congres s pursuan t to the National Labor Re lations Act (“ NL RA ”), see generally 29 U.S.C. § § 151–69, and charged therein with investigat ing, prosecuting, and adjudicating c laims of “unfair labor practice [s]” through administrat ive proceedings, id. § 160. The NLR A provides f or the NLRB to be led b y a Board co mprised of five members, each appointed by the President to a f ive - year term upon confirmation by the Senate. Th ese mem bers are subject to r emoval by the Pr esi dent “for ne glect of duty or malfeasance in office, but f or no other cause.” Id. § 153(a). Prosecuting author ity for NLRA violation s is vested in the N LRB’s General Counsel. See id. § 153(d). In the first ins tance, the General Cou nsel pursues NLRB administrative pr oceedings befor e a Board - appointed A LJ, who oversees discovery, develops a factua l record, and recommends a dispo sition to the Board. See 29 C.F.R. §§ 102.34, 102.35(a). ALJs may be term inated “only for good cause establi shed and determined by the Merit Systems P rotection Board ” (“MSP B”), 5 U.S.C. § 7521(a), th e members of wh ich may themselves be rem oved by the

5 President “ only for ine fficiency, neglect of duty, or ma lfeasance in office,” id. § 1202(d); see also id. § 1201. A party whose actions ar e the subject of NLRB ad ministrativ e proceedings may request interlocutory Board revi ew o f any ALJ decis ion made in the course of such p roceedings. See 29 C.F.R. § 102.26. In any event, a t the concl usion of proceedin gs before an ALJ, the Board aut omat ica lly t ransfers the cas e to its elf. See id. §§ 102.45–.4 6. Once the Board has tran sferred the case, a party may take exception to any of the ALJ’s factua l findings and legal conc lusions, a ll of wh ich are subject to the Boar d’s de novo review. See id.; see, e.g., Blu e Sch. & Loc. 2110, Tech., Off. & Pro. Union, UA W, 373 NL RB No. 120, 2024 WL 43 46403, at * 5 –6 (Sep t. 27, 2024) (reversing ALJ’s f actual findings and legal conclusions). During its review of the parties’ “ti mely and prop er exceptions,” the Board may “reopen the record” and hear tes timon y or take evi dence as if the Bo ard we re developing the record in the first instance. 29 C.F.R. § 102.48. Only the Board can r ender a final decis ion in N LRB ad minist rative proceeding s. See id. § § 102.45 –.49. II. Factual and Procedu ral Background In 2012, the General Coun sel fi led var io us adm inis trat ive c ompla ints of unfair labor pra ctices against C are One, al l of which wer e consolidated and assigned to ALJ Kenneth Chu. 2 Between September 2012 and October 2014, ALJ Chu held 39 days of he arings to develop the factual record as to thos e allegations. 2 In parallel, t he NLR B obtained a preliminary injunction in the Uni ted States Distr ict Court fo r the D istrict of Connec ticut, which prohibited some Care One facilities fro m contin uing the labor pra ctices a lleged to be unfair in the administr ative proceedings. S ee Kreisberg v. Healthbridge Mgmt., LLC, No. 3:12 - cv - 1299, 2012 WL 12929503, at *2 (D. C onn. Dec. 11, 2012), aff’d, 732 F.3d 131 (2d Cir. 2013). Th is a ction remain s pending. S ee id., 2014 WL 12652479 at *4 (D. Conn. May 30, 2014) (“ All furt her proceedings in this Court are hereby staye d until the appeals are decided. ”); see also id. M in. Entry dated Dec. 2, 2025 (ordering n ext regu lar s tatus report).

6 While these proceedings were ongo ing, the Supreme Court decided NLRB v. Noel Canning, 573 U.S. 513, 517 (2014), wh ich held th ree January 2012 president ial recess appointment s of Board members invali d, thereby renderi ng invalid a ll actions taken by the Board between January 2012 and August 2013, a fter which the Board aga in had a quor um of vali dly appointed members, see Wilkes - Barre Hosp. Co. v. NLRB, 857 F.3d 36 4, 370 (D.C. Cir. 2017). Among those in valid actions was the improperly - constitu ted Board’s Ju ly 2012 app ointment of ALJ Chu. Within a mont h of the Noel Cannin g decision, howev er, on July 18, 2014, a quorum of va lidly appointed Bo ard members “ra tif[ied] nunc pro tunc all admin istra tive, personnel and procurement m atters approved by the Board or taken by or on behalf of the Board from January 4, 2012 to Aug ust 5, 2013,” whi ch included the July 201 2 appointmen t of ALJ Ch u. J. App’x 65. No admi nistrative proceedi ngs pertaining to Ca re One were cond ucted from 2015 to 2022 d ue to certain interlocutory appe als and CO VID -19- related delays. Proceedi ngs briefl y resumed in 2022, but were sta yed after Care One obtained an in junctio n from the Un ited Sta tes Dis trict Co urt for the D istrict of New Jersey. See In re 7 10 Long R idge Rd. Opera ting Co. II, LLC, 637 F. Supp. 3d 1 61, 187 (D.N.J. 2022). 3 Some months later, the Th ird Circuit reversed and vacate d that injunc tion, see id. N o. 22 - 3046, 2023 WL 3116434, at *4 (3d Cir. Apr. 27, 2023), whereupon ALJ Chu order ed that administrative proceedings against Care One resume on June 26, 2 023. Two weeks pr ior to that date, however, Ca re One brought another action in the Dist rict of New Jersey seek ing, inter alia, a t emporary restra ining order hal ting the NLRB proceedings. For t he first time, Care On e argued th at (1) ALJ Chu was not lawfully a uthorized to c onduct NL RB proceedings be cause he was appoin ted 3 In the N ew Jerse y case, the par ties were l itiga ting the validity a nd sc ope of releases that certain plaintiffs had obtained during Chapt er 11 bankruptcy proceedings that may h ave affected the NLRB’s ab ility to pursue alleg ed unfair labor practice claims. See id.

7 by a Board, the majority of whose members’ own app ointments we re pronounced in violation of the C onstitution’s Appointments Cla use in Noel Canning, see U.S. Const. Art. I I § 2; and (2) the dual f or- cause r emoval protect ions afforded ALJs unlaw fully infrin ge d on the Pres ident’s re moval powers unde r the Cons titution’s Take Care and Vestin g Clauses, see id. §§ 1, 3. T he New Jersey dist rict court denied a tem porary restrai ning order and granted the NLR B ’s mo tion to transfer the cas e to the District of Con necticut, where Care One r aised similar ar guments i n moving for a pr elim inary in ju nctio n. See Care On e, LLC v. NLRB, 680 F. Supp. 3d 540, 549 (D.N.J. 2023). The C onnecticut di strict court denied a p reliminary i njunct ion on the groun d “tha t pla intiffs h ave n ot me t their b urden of dem onstr ating tha t the ir claims a re clearly likely t o succeed on the merit s.” Care One, LLC v. NLRB, 2023 WL 6457641, at *1. Th is time ly ap pea l foll owed. Meanwhile, NLRB a dministrative procee dings contin ued, with ALJ Chu issuin g a decis ion o n May 29, 2024, fin ding Care One to have c ommitted many of the alleged unfair la bor practices and rec ommending various remedial actions to the Board. Soon aft er, ALJ Chu retired from the NLRB. Me anwhi le, t he Board entered a pro forma order transferr ing C are One’s cas e to itse l f, where it presently remains pending after the parties file d several exceptio ns and cross - exceptions to the ALJ’s rulings. DISCUSSION I. Jurisdiction At the outset, we n ote th at t he NL RB challenges the jurisdiction of the district court and, by e xtensio n, this co urt, to e njoin its pending procee dings against Care One. The NLRB sub mits that the statute gener ally affor ding federa l courts j u risdiction to hear “al l civil actions arising under” fede ral law, 28 U.S.C. § 1331, does not obtain where, as here, Con gress has provided for the Board itself to review agency action s and that review has not yet re sulted in a final order, see 29 U.S.C. § 160(e) –(f); s ee also Axon Ente r., Inc. v. FTC, 598 U. S. 175, 1 8 5 (2 023)

8 (observing that whe re Congress has pr ovided for r eview of challenged a gency action by a c ourt of appeals “fol lowing th e agency’s own review proce ss,” proper inference is that Congre ss intended to divest distr ict courts of jur isdiction over such actions). The NLRB ackn owled ge s that such channelin g does not always preclud e the exercise of juri sdiction by district courts. See Axon Enter., Inc. v. FT C, 598 U.S. at 180 (recognizing district co urts’ jurisdiction to he ar and resolve constitutional challenges to agency “structure”); Th un der B asin Coal Co. v. Reich, 510 U.S. 200, 2 12– 13 (1994) (identifying three questions whose ans wers could signal that Congress did not intend to preclude court action pending final agency review). Neverthe less, it sub mits tha t t he dis tric t co urt l ac ks jur isdic tion here because Care One do es not challenge t he NLRB’s fun damental s tructure in a way that casts doubt on t he constitutional ity of “all or a br oad swath of its w ork,” an d the Thunder Basin questions do no t yield ans wers supp orting the exercise of jurisd ict ion. Ap pe llee s’ Br. at 46 –47 (quot ing Axon Enter., Inc. v. FTC, 5 98 U.S. at 189); see id. at 47–50. In considering this argument, we note that the NLR B does n ot —and cannot — argue that Care One’s appointment s and remov al challenges fail to present the sort of “case” or “controversy” nece ssary to suppo rt a federal court’s exercise of constitutional j uris dicti on. See, e.g., NLRB v. Noel Canning, 5 73 U.S. at 522 (recognizing app ointment s c hallenge to present A rticle III “cont roversy” even where Board “no w unquestio nably has a q uorum ” of proper ly appointed members); Seila L. LL C v. CFPB, 59 1 U.S. 1 97, 2 10– 11 (2020) (rec ognizing standing suffic ien t for Artic le I II juris dict ion wh ere r emova l cha llenge comp lains of “inju ry. . . traceable to the decision be low” that “ w ould be fully redressed ” up on re versal and remand). Nor does the NLRB question the courts’ “statut ory ” jurisd ict ion t o hear Care One ’s removal - protection challenge. See Springfield Hosp., Inc. v. Guzman, 28 F.4th 403, 416 (2d Cir. 202 2) (“[T] here is a distinct differenc e between jurisdictional ques tions of a statutor y nature and jurisdictional ques tions of a constitutional nature. ”). Rather, the NLR B challenges on ly the courts’ statut ory

9 jurisd ict ion to entertai n Care One ’s Appoint ment s C lause ch allen ge b efore the Board itself issues a final decision. To rule de cis ively on that jurisd ict iona l challen ge, t his court w ould have to de cide whether, and to what extent, recent Su preme Court precedent abrogates our own. C ompa re Axon Enter., Inc. v. FT C, 598 U.S. at 195 (approving colla teral review fo r removal - protection challen ge because claim goes to whether “s tructure. . . of an age ncy viol ates the Constitution ”), with Tilton v. SEC, 824 F.3d 276, 291 (2d Cir. 2016) (hold ing Appointments C lause challenge “m ust be res olved in the first instance through agency proceed ings”). We would also have to consider the proper reach of s upplement al jurisdiction i n the circums tances of this case. S ee 28 U.S.C. § 1367(a), (c). Because t hese q uestions of “statu tory (non- Ar ticle III) jurisd ict ion [are ] complex” and because Care One’s cla ims “fail[] on o ther more obvious gro und s”— specifica lly, Care One’s inabi lity to demonstrate irr eparable harm in the absence o f a preliminary injunction — we deem it preferable i n this case to “a ssume hyp othetical jurisdic tion” and to affirm the denia l of an i njunc tion on that more obvio us ground. Mil ler v. Metro. Life Ins. Co., 979 F. 3d 118, 123 (2d C ir. 2020); se e Spri ngfield Hosp., Inc. v. Guzman, 28 F.4th at 416 (“ W hen a jurisdiction al issue is stat utory in nature, we. . . may procee d to dismiss the case on the merits rather than engage with the jurisdictional question. ”). II. Care One Is Not Ent itled to a Prelimi nary Injunction A. Standard of Review “We review a distr ict court’s denial of a preliminary injunction for ab use of discr etion, ex amin ing the lega l conclusions underpin ning the decision de novo and the factual [fin dings] for clea r error.” Green Have n Prison P reparative Meeting of the Religious Soc ’ y of Friends v. New York Stat e Dep ’ t of Corr. & C mty. Supervision, 16 F.4th 67, 78 (2d Cir. 2021). Our review i s not limit ed to the precise reas oning of the distr ict co urt; r ather, we may affirm the denial o f a preliminary injunction “on any

10 ground su pported by the record.” Hu dson Shore Assocs. Ltd. P ’ ship v. New York, 139 F.4th 99, 106 (2d C ir. 2025). When, as here, a pr eliminary injunction w ill affect govern ment action taken in th e public interest pursuant to a statu te or regulatory scheme, the moving party must demonstr ate (1) irreparable har m abse nt injunctive relief, (2) a likelihood of success on the merits, and (3) public interest weighing in favor of granting the injunction. Friends of the E. Hamp ton Airport, Inc. v. Town of E ast Hampton, 8 41 F.3d 133, 143 (2d Cir. 2016) (internal quotation marks omitted). Because the requirement s are conjunctive, a movant must satisf y all three to secure a preliminary injuncti on. B. The Partie s’ Arguments Insofar as the district court found Care One not to ha ve satisfie d the second requirement — i.e., a l ikelihood of succe ss on the merits — Care One argues that the court abused its d iscretion by requir ing a showing of “a clear like lihood ” of success as opposed to a mere “ like lih ood ” of success, and by failing in an y event to ex plain adequate ly its l ikelih ood ana lysis. Ap pel lant s’ Br. a t 26– 27, 42 –45. Care One submits that thi s court can itself f ind a ll three requi rements for a pr elimin ary injunc tion sat isfied. The NLRB contests each of Care One’s argum en ts. As to the last argument, the NLRB maintains, inter alia, tha t Care One failed to d emon strate th e l ikelihoo d of irrepara ble harm necessary fo r a prelimi nary injunction. We agree and affirm on that ground without addr essing the li kelihood of Car e One succee ding on the merits of it s cla ims o r the wei ght of the public interest. C. The Propriety of First Conside ring Irreparable Ha rm As this court has lo ng recognized, “irre parable harm is the single most important prereq uisite for the issuance of a pr eliminary injunct ion.” JTH Tax, LLC v. Agnant, 62 F.4th 658, 672 (2d Cir. 20 23) (quoting Fa iveley Transp. Malm o AB v.

11 Wabtec Corp., 559 F.3 d 110, 118 (2d Cir. 2009) (q uoting Rodrig uez v. DeBuono, 175 F.3d 227, 23 3–3 4 (2d C ir. 1999))). Consist ent with this view, we h ave frequently stated that a party seeking a preli minary injunction “must first demonstrate that such injury is l ikely befor e the other requi rements for the issuance of an inju nction will be considered.” Freedom Holdings, Inc. v. Spitzer, 40 8 F.3d 112, 114 (2 d Cir. 2005) (q uoting Rodr iguez v. DeBuono, 175 F.3d at 2 3 3–3 4). Thus, we have routin ely — even s ummaril y— upheld the denial of a preliminary injunction based on a movant’s failur e to demonstrate irrep arable harm with out considering other requirement s for such reli ef. See, e.g., St. Joseph’s Hosp. He alth Ctr. v. Am erican Anesthesiology of Syr acuse, P.C., 13 1 F.4th 102, 106– 08 (2d Cir. 2025) (summar y order); JBR, Inc. v. Keurig Green Mo untain, Inc., 618 F. App’x 31, 33– 36 (2d Cir. 2015) (summary order). This is n ot to s ugges t that a c ourt must alwa ys consider i rreparable h arm before li kelihood of success on the merit s when reviewing the d enial of a preliminary injunction. See, e.g., Gazzola v. Hochul, 88 F.4th 186, 194 (2d Cir. 2023) (upho lding den ial of preli minar y injun ctio n, e xplain ing th at bec aus e distr ict c ourt correctly assessed m ovants’ lack of stan ding and failure to demonstrate likely success on meri ts, court would “not reach the issue of irr eparable harm”). Bu t it is frequent ly easier and more prudent to do so. At the hea rt of th e merits argum ents in this appeal are two challenging questions of law: (1) whether err or in the initial appo intment o f an NLRB ALJ by an unlawful ly constituted Board, see NLRB v. Noel Canning, 573 U.S. at 519, is satisfactorily c ured by a lawfully const ituted Board’s s ubsequent r atification of that appoint ment; and (2) whether the statutory r emoval p rotections afforded ALJs, both direct ly by 5 U.S.C. § 7521(a) –(b) and indirectly b y id. § 1202(d) (pertaining to MS PB m embers who review ALJ removals) an d 29 U.S.C. § 153(a) (pertaining to Board members who approve ALJ removals), unconstitutiona lly interfere w ith the President’s exerci se of executive power conferred by the

12 Constitu tion, see U.S. Const. Art. II, §§ 1, 3. 4 These questions r a ise sig nifi cant cons titut iona l issues about the separation of powers, particularly about the President ’s authority to appo int and co ntrol persons serving in the executive branch and about Congre ss’s authority to confirm certain executive appointments and to afford a degre e of employment protecti on to persons se rving in the executi ve branch. Sim ilar iss ues are presently being litigated in a n umber of federal cases, with intervening act ions by the Supreme Court making it difficult to know what b alances ar e appropriately str uck in the var ious contexts in wh ich they can arise. See, e.g., Trump v. Wilcox, 145 S. Ct. 1415, 141 6 (2025) (staying distr ict court order enjoining President fr om removing me mbers of NLRB and MSPB without ca use); accor d Trump v. B oyle, 145 S. Ct. 2653, 2654 (2025) (relying on Wilcox to stay judgment permanent ly enjoining te rminat ion of Consumer Product Safety Comm ission me mbe rs without c ause). B ut see Trump v. Cook, 146 S. C t. 79, 79 (2025) (reserving decision on mo tion to enjoin Pre sident’s for - cause removal of Federal Reserve Boar d Governor pend ing oral argument). To be sure, i f this appeal could not be de cided without consider ing the likely merits of Care One’s constitutional challenges, this court would have to address these issues, applyin g pre sen tly con trol ling law to the be st of our ability. See, e.g., Nestor v. Pratt & Whitney, 466 F.3d 65, 72 n.8 (2d Cir. 2006). H oweve r, it is not necessary th at we do so here because Car e One’s inab ility t o sh ow the likelihood of irrepara ble harm necessa ry to warrant a preli minar y injun ction is a straightforward gro und for decis ion at this stage in the case. 4 Care One c ites the s tatutory rem oval protec tions afforded MSPB and NLR B members only in sofar as they afford an extra la yer of protec tion to AL Js. Now here does it argue on appeal that t he removal pr otection afforded Board member s is an independent g round to enjoi n furthe r proc eedings before th e Boa rd. We thus deem any such ar gument waived. Se e Torcivia v. Suffolk C ou n ty, 17 F.4th 342, 366–67 (2d Cir. 2021).

13 D. Care One Cannot Show L ikely Irrepara ble Harm in the Absence of a Preliminary Inju nction In urgi ng irreparable harm, Care One argue s that (1) the Suprem e Court has recognized that “being subject ed to unconstitutional agency aut hority” in the form of “a ‘ proceed ing by an unaccount able ALJ ’” is a “here -and - now in jury” that is “impossible to remedy” once the ad ministrative pr oceeding i s over, Appellant s’ Br. at 60 (quoting Ax on Enter., Inc. v. FTC, 598 U.S. at 191); and, in any e vent, (2) it is ent itled t o the “presumption of i rreparable injury ” that flows fr om the violation of certain const itutio nal rights, id. at 61 – 62 (quoting A gudath Israel of A m. v. Cuo mo, 983 F.3d 620, 636 (2d Cir. 2020)). Neither argument persuad es. 1. Axon Enterprise Does Not Suppo rt a Preliminary Injunctio n in This Case Care One’s reliance on Axon Enterprise to argue t hat it ha s satisfied the irreparabl e harm requirement for a prelimi nary injunction is misplace d. As th e Tenth Circuit h as observed, the Supreme Court in Axon Ent erprise identi fied “here - and- now injury” onl y to address the “strictly jur isdictional question” of whethe r a litigant could cha llenge ongo ing admin istrative proceed ings collatera lly; the Court made no mention of “ plain tiffs’ ent itleme nt to preli minar y inju nct ive re lief. ” Leachco, Inc. v. Consu mer Prod. Safety Co mm’n, 103 F.4th 7 48, 758 – 59 (10t h Cir. 2024). Indeed, the phrase “ here -and-now inj ury,” as used in Ax on Enterprise, originated in Seila L aw LLC v. C FPB. 591 U.S. 197, 212 (2020). Seila Law was a cas e concerned with a part y’s standing to pur sue its cla im, not a party’s en tit lemen t to e quitab le relief on th at claim. See id. at 210 –13. I t was i n iden tifyin g s tand ing (a requirement for jur isd iction) that the Supreme Co urt there observed that when a re moval

14 provision “violate s the separation of po wers it inflicts a here -and- no w injury .. . that can be remedied by a court.” Id. (internal quota tion marks omitted). 5 The Suprem e Court thereafter “ clar ified” that what it said about “here -and- now injury” in S eila Law was l imited to standing and did not pertain to the propriet y of any relief: What we said ab out standin g in Seila Law should not be misunderstood as a holdin g on a par ty’s entitlemen t to relief ba sed on an unconstitutional r emoval restrict ion. We held that a plaint iff that chall enges a statutory restriction o n the P resident’ s power to remove an executive office r can establish stan ding by show ing that it was harmed by an action that was taken by s uch an officer. . . . But tha t holding on stand ing does no t mean that actions taken by such an officer are void ab in itio and m ust be un do ne. Collins v. Yellen, 594 U.S. 220, 25 8 n.2 4 (202 1) (citat ion omitted). Th is cl arify ing limit ation is properly un derstood to inform the Court’ s subsequent use of the “here -and- now injury ” phrase quoted from Seila Law in Axon Enterprise. See Leachco, Inc. v. Consu mer Prod. Safety Com m’n, 103 F.4th at 759. 6 5 Seil a Law, in tur n, derived the “here - and - now” l anguage f rom Bowsher v. Synar, 478 U.S. 714, 727 n.5 (1986). While the Court there addres sed the m erits of a c onstituti onal remo val issue, it u sed t he “here - and - now” language on ly to rec ogniz e the ripeness of plaintiff’s claim as necessary for jur isdict ion. Se e id. (re jecti ng “ argument tha t cons ideration of the e ffect of a r emoval provision is not ‘ripe’ until that provision is actuall y used ” and observing th at pr ovision at i ssue “creates the here - and - now sub servienc e to another bra nch that ra ises sep aration - of - powers pr oblems” (internal quotation marks omitted)). 6 Indeed, in holdi ng t hat judicial review — and not necessarily judicial relief — wa s warranted there lest it “come too l ate to be m eaningf ul,” the Supreme Cou rt in Axon Enterprise also said “[t ]he limits of that conclusion are important to emphasize.” See 598 U.S. at 191. It observed that “requir[ing] parties to wait befo re appealing, even when doing so subjects them to ‘significant burdens’ ” is a reality that “will remain so,” and t hus

15 I n Collins, the Supreme Court also distin guished appointmen t s challe nge s from removal challe nges, observing that while a “ c onstitutional defect in the statutorily prescr ibed method of [an of ficial’s] appointment ” may render hi s actions v oid, there is “no rea son to regard any of the ac tions take n by [a properly appointed officer] .. . as void” by s ole virtue of tha t officer’s purportedl y unconstitutional pro tection from at - w ill remo val. 594 U.S. at 257 – 58. In shor t, unconstitutional re moval protection m ay di minish a person’s accountability for his actions, but not necessarily his authority to take such action s. Thus, our court has held that to prove redressable injury from uncons titutional re moval protections, a party must show “that the agen cy action would not have b een taken but for the Presi dent’s inability to re move” the relevan t person. Cf. C onsumer Fin. Prot. Bureau v. L. Offs. of Crystal Moroney, P. C. (“ CFPB v. Crystal Moroney ”), 63 F.4th 174, 1 79– 80 (2d Cir. 2023) (emphas is in original) (noting that Collins left open poss ibilit y of relief if party could sho w that “ unconst itution al provision . . . inflict[ed] compensa ble harm ” on pe titioner (alter ation in or igina l) (qu otin g Collins, 594 U.S. a t 259)), cert. denied, 144 S. Ct. 2579 (2 024). 7 generally does not support interloc utory revi ew. S ee i d. at 192 – 93. The Supr eme Court has th us consis tently expla ined that f inding a “ here - and - now i njury” cogni zable f or jurisdictional purpo ses is not t he sam e as fi nding lik ely irreparab le harm warran ting interim relief. 7 A Fifth Circuit panel majority rece ntly co ncluded ot herwise. S ee Space Expl. Techs. Corp. v. NLRB, 151 F.4th 761, 775 – 80 (5th C ir. 2025) (upholding preliminary injunction enjoining NLRB proceedings, fin ding plaintiffs to have demonstra ted likeli hood of (1) succe ss on merit s of r emoval ch allenges to both ALJs and NLRB members; and (2) irrepar able harm, observi ng as to latte r that Axon Enterprise ’ s “rea soning [with res pect to juris diction ] fits irreparable harm hand - in - glove: onc e an uncon stitution al proceed ing begin s, the d amage is done”). B ut see id. at 7 8 1 (Wiener, J., concurring in part and dissenting in part) (faulting majori ty for misi nterpreting Su preme Cour t precede nt by lowe ring employe r’s burde n so as n ot to requi re the m “to allege additi onal ca usal ha rm that they w ould fa ce if

16 These distinctions be tween appointment s and re moval chal lenges, a nd between the a llegations of injury suf ficient to confer s tanding (Seila Law) or to justify coll ateral review (Axon Enterprise s) and the showing of harm necessary to secure reli ef (Collins), apply with partic ular force to preliminary injuncti ve relief where the mova nt’s burden is not only to a llege pla usibl y th at the charged conduct caused injury, but a lso to make a s how ing of “likely . . . irreparabl e harm.” Winter v. Nat. Res. Def. Council, In c., 555 U.S. 7, 21 (2008); see genera lly Faiveley Transp. Malmo AB v. Wabtec Corp., 5 59 F.3d at 115–16, 118– 19 (find in g plain tiff satis fie d “irre ducib le cons tit ution al min imu m” inj ury - in -fact req uirement for s tanding bu t failed to show that injury “ cann ot be remedied if a court wa its unti l the end of tr ial to resol ve the harm” as requi red fo r pre liminary injun cti on (quoting Grand Riv er Enter. Six Nations, Lt d. v. Pryor, 481 F.3d 6 0, 66 (2d Cir. 2007))). Care One failed to carry that burden here. a. Appointments C hallenge To begin with Care One’s appointments challe nge, we note at the ou tset tha t t he NLRB concede s the invalidity of ALJ Chu’s initial appoint ment and, therefore, of his subsequent ac tions — at least prior to ratification by a lawfully constituted Board. Even assuming that such an improper initia l appointment — wi thout regard to s ubse quen t ra tifica tion —allowed Care One to de monstr ate a l ikel ihood of irreparable harm from any cont inuat io n of proceedings before ALJ Ch u, Care One is not e ntit led t o a preli mina ry in jun c tion because it faces no such risk. Care subjecte d to proce edings befo re the NLRB board me mbers” and noti ng that holding creat es split “ between ou r circui t and the T enth, Sixth, and Sec ond C ircuits ”). The fact s in this case are disti nguishable fro m those in Space Explor ation Techn ologie s, which provide d no indication that ALJ proceedings had termina ted or that any ALJ had retired. See id. at 768 – 70, 780. In any event, this panel — and the par ties in this case — remain bo und by the rule expressed in CFPB v. Crystal Moroney unti l that dec ision i s overturn ed by the Supreme Court or rejec ted en banc by this cou rt. See, e.g., Un ited St ates v. Afriyie, 27 F.4th 161, 168 (2d Cir. 2022).

17 One is n ot now, and will neve r again be, befor e ALJ Chu in any NLRB proceedings, as he has now retired from the agency. The only proceedings now pending against Care One are being conducted by the fu ll Board, which transferred Care One’s case to itself by pro f orma order dated May 29, 2024. Care One does not dispute that, as of t hat date, all Board members were lawfully appointe d. Rather, Care One submit s that ALJ Chu’s improp er appointment irreparabl y taints even subsequen t proceeding s before a lawfully constituted Board so as to war rant a preliminary i njunction halt ing those proceedings. In support, it cit e s Lucia v. SE C, wh erein the Supreme Court stated that that “the app ropriate remedy fo r an adjud ication tainted w ith an appointments violation is a new hear ing befor e a properly app ointed officia l.” 585 U.S. 237, 251 (2018) (internal quotati on marks omi tted). Lucia, howeve r, identified such a remedy as appr opriate in circumstances quite diff erent from th ose presented here. In Lucia, not onl y had the improperly appointed ALJ ru led on the mer its of the case, but also a ll subsequent SEC administrative proce edings had conclude d. In that post ure, the Court ident ified a new hearing by a properly appointed official as the app ropriate remedy. See id. at 251 & n.5. In so rulin g, the Court observed th at the “ new hearing ” could be conducted by either “another ALJ” or “th e Commission itself.” See id. at 251 –52. The l a tter r emedy is already e ffectively av ailable to Care One be cause, by contrast to the co mpleted SEC proceeding s in Lucia, NLRB proce edings against Car e One are presentl y pendin g before the Board. Moreover, Car e One cannot show th at proce edings before the Board will likely be tainted by ALJ Chu’s wrongful appo intment becaus e the Boa rd i s statutorily author ized to consider all questions of fact and law de novo, and to take further testimony an d to hear further argumen ts as necessary t o reach it s ow n fina l decision. See 2 9 U.S.C. § 160(c); 29 C.F.R. § 102.48. Care One doe s not assert, and

18 nothin g in the record suggests, that the Board will not here exercise i ts de novo review auth ority. 8 Care One has already taken the opportunity to raise exceptions to ALJ Chu’s factual findings and concl usions of law before the Board. See Responden ts’ Exceptions to the Administrative Law Judge’s Decision and Order at 2 –3, Healthbridge Mgmt. LLC et al., N o. 34 - CA - 070823 (NLRB filed Aug. 23, 2 024). Indeed, Care One h as taken exception to the entire record as a matter of law, relyin g on the very Appoi ntments Clause argu ment raised here. Id. Thus a fforded de novo review befor e the Board, Care One cannot show a likel ihood of irreparable harm from ALJ Ch u’s improper appo intment so as to warr ant a preliminary injunc tion halting pending Boar d proceedings. b. Remova l Challenge In its challenge to the dual for - cause protection s from remo val afforded ALJs, Care One a gain c omp lain s of “being subjected to unconstitutional agency authority.” Appellants ’ Br. at 60 (internal quot ation marks omitted). But as already explained, unconstitutional re moval protections pr imarily implicate accountability for, n ot authority to take, official act ions. See supra at 14 –15 (discussing Collins v. Yellen, 594 U.S. a t 258 n.24; CFPB v. Crystal Morone y, 63 F. 4 th at 1 79–80). Thus, to satisf y the irreparable harm requirement for injunctive relief consistent with controlling precedent in this circuit, a p art y co mplain ing of unconstitutional removal protections must demon strate — at a mini mum — a like lihoo d that it is or imm inent ly will be subject to actions that would not have been taken but for the Presi dent’s inability to remove the protected pe rsons. See CFPB v. Crystal Moroney, 63 F. 4th at 1 79 – 80. Because Care One has made no such 8 In any ev ent, a ny error com mitted by th e Board at thi s jun cture would be reviewa ble and redressable by this c ourt on dire ct appeal, mitigating the irreparab le elem ent of the asserted harm and, th ereby, re ndering a preliminary injunct ion unnecessary. S ee 29 U.S.C. § 160(f).

19 showing here, it fails to establish that ALJ r emoval protections w ill ca use it irreparabl e harm unless pending Board proceedings are enjoined. 2. Care One I s Not Entitled to a Pre sumption of Irreparable Harm Care One argue s that its appointment s and removal cha llenges effective ly assert “violation[s] of constitutional rights ” sufficient to trigge r a “presumption of irreparabl e injury.” Agudath Israel of Am. v. Cuomo, 983 F.3d at 636 (in ternal quotation marks o mitted) (addressing Free Exerci se Clause challe nge to COV ID - 19 restrictions). It is mist aken. Cons titutio nal v iol atio ns — particu larly First Amend ment violations —have been presumed irreparable w hen, by their natu re, their inj ury cannot be undo ne. See New York Pro gress & Prot. PAC v. Walsh, 733 F.3d 483, 486 (2d Cir. 2013) (recognizing irreparable harm where plaintif f “seeks to engage in polit ical speech” because “a delay of eve n a day or two may be intolerable ” (internal quo tation marks o mitted)); see also Reyes v. City of New York, 1 41 F.4th 55, 68 (2d Cir. 2025) (hold ing that in abili ty t o film in polic e stat ion may re sult in “actual, im minent, and irretri evable loss” of First Amendment right s). T hat conclusi on, however, doe s not obtain univers ally. See Natio nal Ass ’ n for Gun Rts. v. La mont, 153 F.4th 213, 248 (2d Cir. 2025) (not ing that “we ha ve p resumed i rreparable harm fo r alleged deprivations of ce rtain constit utional rights,” na mely in First, Fourth, and Eighth Amendment conte xts, but reject ing argument t hat “violation of constitutional rights p er se constitutes i rreparable injury” an d, t hus, d eclining to decide whether Second Amendment infringement pre sum ptive ly causes irreparable harm). We are not persuade d that a presumption of irrepara ble harm necessarily a ttaches to a ll se para tion -of- powers claims s o as to warrant injunctive rel ief. As both the Supreme Court and our ow n court have r ecognized, “the nature of the. . . remedy” available to claimant s “is to be determi ned by the nature and scop e of the constitutional vi olation” that they have sustained. Unit ed States v. City of

20 Yonkers, 197 F.3d 41, 55 (2d Cir. 1999) (quo ting Milliken v. Bra dley, 433 U.S. 267, 280 (1977)); accord CFPB v. Crystal Morone y, 63 F. 4th at 180 (c ollecting cases so concluding in ide ntify ing “but - for causation” req uirement). Th at reason ing applie s whether the relie f soug ht is fina l or pre liminar y. The r e moval v io latio ns a t iss ue do not w arrant a presumption of irreparabl e harm here because, as already exp lained, such v iolations do not cause cog nizable harm in all instances. See supra a t 14–15, 18 –19. Rather, removal v iolations cause cognizable separat ion -of- power s injury only when the person afforded remova l protection engages in action that he woul d not have taken “ but for the President’s inability to remo ve” him. CFP B v. Crystal Moroney, 63 F.4th at 180 (e mphasis in origin al); see Collins v. Yel len, 594 U.S. a t 258 – 60. A gain, C are One do es not c laim that ALJ Chu took any actions in its proceedings tha t he would not have taken but for his removal protections. Now that ALJ Chu has re tired and Care One’ s proceedings are befor e the full Board, it is not at risk of any such injury from ALJ Chu. In these circum stances, even if Care One were succes sfully to demonstrate the unconstitutionality of the challenged dua l f or- cause remova l protection afforded ALJs, it wo uld not have s ustained irrepara ble harm. In stead, the on ly relie f to whic h it would be entitl ed wou ld be a declaratory judgment se vering the unconstitutional removal prote ction s from the broader st atutory scheme. See Free Enter. Fund v. Pub. Co. Acct. Oversight B d., 561 U.S. 477, 508 (2010) (stat ing that “unconstitutional tenure provisions ar e severab le from the r emainder of the statute ”). As for appointment s violatio ns, they cause injury to person s compelled t o proceed before a challenged appointee. But there is no risk of such i njury, much less presum ptive irreparable injury, to persons such as Care One because its NLRB proceedings ar e now before the lawfully appointed Bo ard, which is empowered to conduct de novo re view of a ll questions of law and fact. See s upra sect ion II.D.1.a.

21 Thus, Care One’s appointment s and removal challenges war rant no presumptio n of irreparable i njury. CONCLUSION To summarize, Car e One has fa iled to demons trate the like liho od of irreparabl e harm required to warrant a pr eliminary injunction halting proceed ings pending aga inst it be fore the NLRB. The distr ict court hav ing correctly de nied such an injunction, its order is hereby AFFIRMED.

1 M YRNA P ÉR EZ, Circuit Judge, concurr ing: Whil e I jo in fu lly in t he wel l - reasoned majorit y opinion, I write separately to ex plain tha t in my view, Plain tiffs are also unlike ly to suc ceed on the merits, and we should reje ct the prel iminary injunctio n on that basis. First, the dua l - layer removal protections enjoyed by the NL RB’s ALJs do not offend th e separation of powers or int erfere with the President’s exerci se of his cons titut iona l dut ies. Unlike t he bo ard m embe rs at is sue in Free Enterprise Fund v. Public Co. Accoun ting Over sight Board, 561 U.S. 477 (2010), the N LRB ’s ALJs do not exercise significan t policymaking or enforce ment authority, an d the NL RB’s Board members are f ully empowered t o superintend the agenc y’s ALJs and to di sregard their reco mmendations. And s econd, the appoin tment of the ALJ who pre sided over Plaint iffs ’ case, wh ile init ia lly inv alid, w as p rope rly ra tifie d, cu ring a ny ongoin g co nst itution al in jury. I. Reaching the Merits to Decide a Preli minary Injunction W hile the majori ty opinion correctly no tes that we have s aid irreparable harm is the most important prerequisite when considering a preliminary injunc tion, see Maj. O p. at 11, we h ave also often first considered the merits of th e claims. See, e.g., Fore st City Daly Hous., In c. v. Town of North H empstead, 175 F. 3d

2 144, 153 (2d C ir. 1999) (“Because a likelihood of succe ss has not been shown here, however, we need not decid e whether a presumptio n of irreparable harm would otherwise apply.. .. [A]ny irreparable harm plain tiffs might suffer in th is case does not warran t a pre liminary injunction in the absence of a showing of (at least) a likelihood of succe ss.”). I find it particularly approp riate to address the merits where, as here, Plaintiffs’ en tire theo ry of irreparable harm is wrapped up in the very theori es of cons titutional violations t hey assert. See Appellant’s Br. at 60 –62; Walden v. Kosinski, 1 53 F.4th 118, 141 (2d C ir. 2025) (affirming denial of preliminary injunction on likelihood of merits and holdin g that because movant “ fa ils to demonstrate a likel ihood of success on the merits of h is claim that the Na ming Provisio ns violate his First Amendment rights, he ca nnot establish irreparabl e harm by this route, ” and movant “makes no other argument in support of a finding of irreparabl e injury ”); Oztu rk v. Hyd e, 136 F.4th 382, 402 (2d Cir. 2025) (concluding there was no sufficient show ing of irreparable har m where “much of the governm ent’s irreparabl e harm argument s eems to rely upon its less - than - convincing merits arguments”); se e also Leachco, Inc. v. Consumer Prod. Safety Comm’n, 103 F.4th 74 8, 759 – 60 (10th C ir. 2024) (rejecting “here -and- now injury” of being subject to unc onstitutional proceedings and reach ing the merits to resolve

3 the irrepa rable harm pron g “ because Leachco ’ s irreparable harm argument is predicat ed entirely on its abilit y to prevail on its c onstitutional argument s ”). Though I recognize the temptation to avoid tackling the merits in this case, i t is importan t not to con flate a trend of an imated litiga tion with law that remains settled. The majority opinion is correct in pointing out that removal protections are currentl y being liti gated throughout federal courts, and tha t the Supreme Cour t has s ent mixe d signa ls v ia its inte rim orde rs. See Maj. Op. at 1 1–13; see als o infra S ection II.A.3. However, this case does n ot involve a cha llenge to the remov al protections of t op- leve l agency officials such as the NLR B’s B oard memb ers themsel ves. Rather, it is a narrower challenge to the removal protecti ons of the NLRB’s ALJs, and thos e protections stand on firmer grou nd given existing Supreme Cou rt precedent, even if one acce pts that the same protections for top - level o ffic ials a re re ce ntly be ing c alle d int o qu estion. In a ny e vent, It is not within our purview to antic ipate whether the Supreme Court may one day overru le its existing preced ent. “ If a preceden t of [the Supreme] Cour t has direct application in a case, yet appe ars to r est on reasons rejected in so me other line of decisions, the Cour t of Appeals should follow the case which direct ly controls, leaving to [the Supreme] Court the prero ga tive of overrulin g its own decisio ns.” United States v. Santiago, 26 8 F.3d 151, 155 n.6 (2d Cir. 2001) (Sotomayor, J.) (alterations in orig inal) (quoting Agostini v. Felton, 521 U.S. 203, 237 (1997)). Only

4 if — and until — a century of settled law is upended by the Suprem e Court, our task in deciding Plaintiff s’ merits arguments remains straightfor ward. We can and should reject them for what they are: w ithout merit. II. Likelihood of Succe ss on the Merits Turning to the merit s of Plaintiffs’ claims, I conclude that the y are unlikely to succeed. At the outset, I note that th e District Court misa pplied the heightene d “clear” or “substanti al” likelihood of success s tandard. 1 Plain tiffs’ p rel iminar y injunction arises in the standard proh ibitory posture: it is undispu ted that Plaintiffs moved for a preliminary in junction as NLRB proceedings were set to resume aft er having been stayed, and that Plaintiffs sou ght to enjoin those proceedings fro m starting up ag ain. See J. App’x at 50 – 51. Rather than r equest some positive act by the gove rnment, Plaintiffs’ injunction th us sought to maintain the status q uo. See N. American Soccer Leag ue, LLC v. U.S. Soccer Fed’n, Inc., 883 F.3d 32, 37 (2d Cir. 2018). The Dist rict Court instead relied on the ultimate rel ief sought 1 We hav e said that “ whe n, as here, the preli minary inj uncti on wi ll aff ect g overn ment a ctio n take n in the p ublic inte rest pur su ant to a stat utory or re gulat ory sc heme, i t shou ld be gra nted on ly if t he movi ng party meets the more rigorous [clear or substan tia l] li kelihood - of - suc cess sta ndar d.” Giam balvo v. Suf folk County, 155 F.4th 163, 174 (2d Cir. 2025) (quotin g Cent. Rabbinical Cong. of the U.S. & Can. v. N.Y.C. Dep’t of Healt h & Ment al Hy giene, 763 F.3d 183, 192 (2d Cir. 2014)). And whe ther gove rnme nt ac tion wil l be a ffec ted refers to wh ether “the injunction sought ‘w ill alter, rather than m aintain, the status quo’ — i.e., is pr operly chara cter ized a s a ‘ma ndatory ’ rathe r tha n ‘pro hibitor y’ in juncti on.” Jolly v. Coug hlin, 76 F.3d 468, 4 73 (2d Cir. 1996) (quoti ng Tom Doherty Assocs., Inc. v. Saban Ent., Inc., 60 F. 3d 27, 33 – 34 (2d Cir. 1995)).

5 in th is ac tion — to “ re nder null an d void al l that has transpired during the hearing before ALJ Chu, and req uire the NLRB to either start ov er or abandon the enforcemen t action ”— to just ify its applic ation of the he ightened s tandard. See J. App’x at 266. The D istrict Cour t abused its discre tion in doing so. A. Removal Protections The Suprem e Court has held that, in g eneral, statu tes pr otecting e xecutiv e officers from at - will r emoval by the Preside nt are unconstituti onal. 2 See Seila L. LLC v. CFP B, 591 U.S. 197, 215 (2020). But t here are two signif ica nt exceptions: “for inferior officers w ith limited dut ies and no po licymaking or administrat ive authori ty,” id. at 218; an d “ for multimem ber bodies with ‘ quasi - ju dicia l ’ or ‘ quasi - legis lativ e ’ function s,” id. at 217. On their f ace, the remov al protectio ns at issue here — the good - cause protection for the NLRB ’s ALJs, co mbined with the good - cause pr otection for members of the MSPB — fall comfortably within these exceptions. T he NLRB’s ALJs are (at most) inferior officers w ho carry out exclusively ad judicatory 2 For present pur poses, “ officer s” are distinct f rom “employe es.” By d efinition, in contr ast to employees, offi cers exercise “significant au thority” under federal law and are a ppointed directly by the President, the head of a department, o r a court of law. Lucia v. SEC, 585 U.S. 23 7, 245 (20 18). The constitut ionality of r emova l protections for federal employ ees is not in questio n.

6 functions. 3 And the MS PB — along wi th the NLRB’s Board — a re mul ti - member bodie s with exc lus ive ly quas i - judic ial and quasi - legis lativ e fu nctio ns. P lain tiffs do not argue otherw ise. I t is th e co mbina tion of these removal p rotections — the s o - called “dual layer” — th at Plain tiffs argue co nstit ute s an exception to the se exceptions. Fo r thi s argument the y rely on Free Enterprise Fund v. Public Co. Accounting Oversight Boa rd, 561 U.S. 477 (2010), in which the Supr eme Court invalidated the good - cause removal protect ions afforded members of the Public Company Accou nting Oversight Board (“ PCAOB”), an independent agency within t he SEC responsible for regulating the accounting industry. The PC AOB ’s mem bers could on ly be removed for good cause by the SEC, who se own members were rem ovable by the President only for good ca use. Id. at 4 86 – 87. Give n t he PCA OB’s status as “ the regulator of first resor t and the primary law enfor cement authori ty for a vital sector of our e conomy,” id. at 508, and the SEC ’s inab ilit y to review and supersede its investigatory dec isions, see id. at 504, the Cour t held th at two layers of good - cause removal protections “ con traven e[d] the Pr eside nt ’ s ‘ cons titu tion al 3 The pa rties d o not disp ute that, f ollow ing L ucia, the N LRB’s ALJs are inferio r officers. See Lucia, 585 U.S. at 249 (holding tha t the S EC’s ALJs a re inferior off icers). I therefore assume that the NL RB’s AL Js are inferior o fficers rather than employees, an d refer to them accord ingly.

7 obligation to en sure the faithful execution of the laws,’ ” id. at 48 4 (quoting Morriso n v. Olson, 487 U.S. 654, 693 (1988)). The NLRB’s ALJs similarly en joy two la yers of good - cause insulation from removal. The ALJs the mselves enjoy rem oval protection, as do member s of the MSPB who decide wh ether good cause has be en shown to remove an ALJ. But the NLRB’s ALJs are distinguishable fr om P CAOB members in importan t respects — most notably, in the nature and ex tent of t he power they wield. Indeed, t he Cour t in Free Enterprise F und took care to note that its ho lding did not apply to ALJs altogeth er, many o f whom — in clud ing the NLRB’ s —“p er form adjudicative rather than enforcement or policymaking functions or possess purely recommendatory powers.” Id. at 507 n.10 (citations omitted). Unl ike PCAOB me mbe rs, the NLRB’s ALJs are not empowered to “ det ermine [] the policy and enforce [] the laws of the United Sta te s.” Id. at 48 4. And, unlike the investigatory d ecisions of PCAOB members, ea ch decision rendered by a n NLRB ALJ is subject to di rect review by principal officers (th e Board), who can disregard or overrule them at will. 4 4 Th is includes each of an ALJ’s procedural and evi dentiary rulings, w hich the Board can review either on an inte rloc utory a ppea l or dur ing its p lenary review of the ALJ’s deci sion. See 29 C.F.R. § 102.26 (2026).

8 While the Su preme Court has not addres sed the questio n directly, I fin d that th ese distin ction s ar e dispositive. My conc lusio n is c omp elled b oth by th e constitutional principles underl ying the removal power — a s informed by the Supreme Cou rt’s precedent s— and the histor ica l ped igr ee of the r emoval protection s at issue here. That conclusion is in accord with the vas t majority of federal a ppellate court decision s on the issue. I address each i n turn. 1. Constitutional Pri nciples To invalidate a statu te insu lat ing a n inferi or officer fro m remo val, we must conclude that the statute “ interf ere [s] impe rm issibl y wit h [the P resident’s] cons titut iona l obl igatio n to ensure the fai thful execution of th e laws.” Morrison, 487 U.S. at 693. The faithful - execution requirement i s a wei ghty obligation. I t appears twice in Arti cle II: as an affir mative duty t o “take Car e that the Laws be faithfully ex ecuted,” U.S. Const. art. II, § 3, and as part of the President’s oath of office, in which he mu st “ solemnly s wear (or affirm)” to “ fa ithfull y execute the Office of Pre sident of the United States,” id. § 1, cl. 8. Th is requirement derives from the “fiduciary- like ” duties of officer s in England and t he American colon ies. Andrew Kent, Ethan J. Leib & Jed H andelsman Shugerman, Faithful Execution and Article II, 132 Harv. L. Rev. 2111, 2180 (2019).

9 By 1789, “fa ithfu l ex ecution ” had come to mean, in particu lar, that officers could not use their powers for p ersonal gain, could not act outside their le gal authority, and h ad “an affirmat ive duty t o act diligently, h onestly, ski llfully, an d impar tiall y in the best int erest of the publi c.” Id. at 2141. Article II i mposes th is obligation on the President and requires that he enforce it in his subordinates. Seve ral co nst itution a l mech anis ms help to enforce this ob liga tion, o ne of which i s the poss ibi lity of being re moved from office. At the highest level, the President fears removal by the electorate. 5 Beneath him, executive officers fear removal by their superiors, inc ludin g, for some, b y the President. In theory, an officer who fears removal will try to pe rform his job in a w ay that avoi ds it. 6 Ideal ly th at mean s e xecutin g th e law faithfully, b ut so metime s it ma y mean the opposite. The Presiden t’s removal power, and st atutory limits on that po wer, balance two opposing risks. On one side is the risk of the maverick offi cer whose acts put 5 This fear became less potent with the ratif icatio n of the Twent y - Se cond Ame ndme nt, whic h limit ed a President t o two terms in office. See Peter M. Sh ane, Political Account ability in a System o f Checks and Balanc es: Th e Case of P reside ntial Rev iew of R ulemak ing, 48 Ark. L. R ev. 161, 199 – 200 (1995). The oth er means of checki ng the Presid ent’s power — such a s congre ssio nal oversi ght and judic ial re view — arguably became more import ant as a result. 6 For conveni ence, the pronouns we use borrow their gender fro m the current President and ALJ Chu.

10 idio syncratic preferences or a personal ag enda above t he public good. Tha t person is tamed by the poss ibility of at - will removal. On the other sid e is the sycophantic officer who abuses his discretion in order to help s uperior offi cers, inclu ding the President, avo id removal themselves — for examp le, by favor ing political al lies, covering up failures, or obfuscating the n egative effects of certain polic ies. Th is risk is mitigated by a degre e of insulation fr om politically moti vated removal. T hese caricatures, while ov ersi mplif ied, usefully illus trate when r emoval protections might “ interfere impermissibl y with ” the Pres ident’s fa ithful - execution obligat ion, Morrison, 487 U.S. at 693, and when they mig ht serve it. i. The Maverick An officer who serves his o wn partial or idiosyncratic preferences at the cost of the p ublic good does not fa ithfully e xec ute the law entr usted to him. Th is concern animated the Suprem e Court’s deci sions in Free Enter prise Fund and Seil a Law, both of w hich invo lved of fice rs w ield ing sub sta ntia l poli cy p ower who co uld be removed on ly for good ca use and who were empow ered to make dec isio ns that could not ind ividu al ly be overruled. In Free Enterprise Fund, it was me mbers of the PCAOB, who co uld independent ly initi ate in ves tiga t ions and e nforcement proceedings. See Free Enter. Fu nd, 561 U.S. at 485, 504. In Sei la Law, it was th e

11 D irector of the Con sumer Financial Protection Bureau, who was empowered to “ unilaterally, wit hout meaningf ul supervision, issue final r egulations, over see adjudications, set enforce ment priorities, initiate prosecut ions, and determine what penalties to impose on private part ies. ” Seila L aw, 591 U.S. at 225. A n officer empower ed with s ufficient discr etion — that is, who is en trusted with judgment as to what the publ ic good requires, and who se decisions on that score are not reviewed by superiors or checked by peers —m ay fail the fa ithful - executi on requirement wi thout supplying good cause for r emoval. This is because a bad policy choice will usually not constitute in eff icienc y, negl ect, or malfeasance in office, which is typically what const itutes good cause in r emoval - protection statutes. See, e.g., 5 U.S.C. § 12 02(d). So t he threat of removal tames such would - be mavericks only w hen removal is at- will; when the democra tically accoun table President can fire (or direct the fir ing of) the offic er over policy disa greements, then the officer is m ore like ly to avoid mis guide d pol icies t ha t offend the pub lic. A statute prohibi ting at - w ill removal for s uch officers may t herefore interfere unconstitutionally with the Pres ident’s duty of fa ithful execution.

12 ii. The Sycophant The opposite concern is the officer who, fe ar ing removal, abu ses his position to serve the personal interest s of his superiors —for exa mple, by favoring the President ’s poli tica l all ies, p unish ing d is sent, or keeping the admin istration’s failures from publ ic view. H e m ay also neglect or contradict p olit ica lly unfashionable lega l manda tes to curry f avor with his supe riors. Such a ctions inhibit rather than s erve the fai thful exe cution of the law. See Kent, Leib & Shugerman, supra, at 2141 (noting that Article II’s faithfu l - execution requi rement was understood a t the fram ing to prohi bit ultra vires a cts and to requ ire acting “dilig ent ly, honest ly, .. . and impartially in the best interest of the public”). The fear of at- wi ll r emoval— rem oval for any r eason, including a n unwillingness to abuse one’s office or exceed one’ s lawful powers — exacerba tes this risk. This concern animated t he Supreme Court ’ s dec ision in Humphrey’s Executor v. United States, 295 U.S. 602 (1935), i n whi ch the C ourt upheld good- caus e remova l protections for mem bers of the FTC. Describing the FTC as an adjunct of the legislative and judic ial branches, it held that the “coercive influen ce” of the President ’s asserted at- will removal p ower would “threaten []” the FTC ’s necessary independe nce. Id. at 6 30. Sim il arly, in Wiener v. Uni ted States, 357 U.S.

13 349 (1958), the Co urt upheld a f ixed term for members of t he temporary War Claims Comm ission, whose job was to adjud icate claims for injur ies suffered in World War II. The Cour t assumed, “as one m ust,” that C ongress did not intend to allow the Presi dent to influen ce the outcomes of par ticular adjudications, and concluded that “ to have hang over the C ommission the D amocles ’ sword of removal by the President ” would contradict that intention. Id. at 356. The Cons titutio n did not req uire disregar ding Congress’s judgment on that score. Id. Indeed, the Supreme Court recognized long ago that the power of removal is “incident to the po wer of appointmen t,” and thus when Congress, pursuant to Artic le II, “ vests the appointment of infer ior officers in the hea ds of Departments it may li mit and res trict the powe r of re moval as i t deems b est for the p ublic interest.” United States v. Perki ns, 116 U.S. 483, 485 (1886). T he Court later clar ifie d in Morrison that th e quasi - leg isla tive or q uas i - judic ial nature of an officer’s funct ions are not dispositive, b ut might nonethe less characterize offices f or which good - c ause remo val p rotec tio ns m ight legit imat ely be “ necessary to the proper functioning o f the agency or official.” Morrison, 487 U.S. at 691 n.30. “ It is not d iffic ult to i magin e s ituat ions in w hic h Con gres s m ight desire that an officia l performing ‘ q uasi - ju dicia l ’ functions, for example, would be

14 free of execut ive or pol itical control. ” Id. Put diff erently, t he risk of sycophancy is mitigate d by prote cting an officer from r emoval except for good cause, and, dependin g on the nature of the offi cer’s power, Congress ma y permissi bly decide that such protect ions are “neces sary to” the faithful execu tion of the law. Id. iii. The NLRB’s AL Js T he precedent s animated by these competing risks reflect a core proposition: that the constitutionality of st atutory remova l protections depends on the natu re and e xtent of the power exercised by the protected officer. Off icers who wield significant po wer, and who wield that powe r through d ecision s that are not reviewabl e by superior offi cers or checked by peers, w ill pose greater risks as mavericks compared to other officers, and Article II may requi re that the President be able to effectu ate their remov al at will. See, e.g., Free E nter. Fund, 5 61 U.S. a t 508; Seila Law, 591 U.S. at 225. But officers whose roles are chi efly recommendator y — who do not s et policy, a nd w hose dec isions are indiv id ually rev iewa ble by superiors before they are implem ented — generally do not p ose such a risk. See Free Enter. Fu nd, 561 U.S. at 507 n.1 0 (ex cepting ALJs fro m its holding for that reason). The greater concern is tha t these offi cers will unf aithfully execute t he laws entruste d to them if left un protected from pers ona lly or pol itic al ly motivated

15 removal. For them, good - cause removal protections generall y will not “interfere imper miss ibly with ” the Pres ident’ s fa ithf ul - execution ob ligation. Morrison, 487 U.S. at 693. Rather, such pr otections may serve that ob ligation — or, at least, Congress may logic ally and perm issibly decide that they do. S ee Perkins, 116 U.S. at 485 (“The const itutional author ity in Congres s to thus vest the appo intment implie s au thor ity t o li mit, r estr ict, and regu late the re mov al by suc h laws as Congress may enact in relatio n to the officers so appointed.”). The NLRB ’s ALJ s fall squarel y into the latt er category. They cannot influence a change in policy, or even adjudicate an e nforcement action, without the Board’s acquiescence. As a result, the universe of actions that cou ld frustrate the faithful execution of the law, but which would n ot constitute good caus e for remov al, is min ima l. But an ALJ who fears at- will re mova l, and th us dist ort s hi s factual findings to benefit the President ’s political alli es, for example, executes the law unfaithf ully. As the Supreme Cou rt’s cas es te ach us, this r isk is pa rtic ular ly acute with respect t o adjudicatory officer s, whose objectivity and fairnes s are crucia l to their qu asi - judicial fu nctions. See, e.g., Morr ison, 487 U.S. a t 691 n.30; Wiener, 357 U.S. a t 356.

16 The same risk b alancin g favors per mitt ing removal protections for members of the MSPB, wh o are res ponsible for adjudica ting whether good cause ex ists for an ALJ’s remov al. The e fficacy of a good - cause rem oval protection depends in large part on an offic er’s confidence that i t will be fairly and impart ially enforced. If an ALJ, for e xampl e, fears politica l reprisal by a n on - insula ted NLRB and MSPB under the gu ise of “ good cause,” then the protection will be toothles s. A non - insulated MSPB mig ht also be co erced by the Presi dent to prevent t he removal of a s ycophantic A LJ when good c ause does ex ist. In either case, the fa ithful execution of the laws is inhibited, not enhanced. C ongress was within its power to address this risk by insu lating both the NLRB’s ALJs and the MSPB’s member s from politically mo tivated removal. 2. History and Tra dition I next consider whether t he removal protections at issu e here have a “ foothold in history or tradition,” supporting their v alidity, or whether they a re instead a constitut ionally suspect “innov ation.” See Sei la L aw, 591 U.S. at 222. Unlike th e novel agency structures at issue i n Seila Law and Free Ente rprise Fun d, the statutes here have a long history and app ly broadly throughou t the federal government.

17 So - called dual - layered r emoval protections have existed in certain federal agencies since at least the 1880s. In 1883, the Pendleton Act prohibited the remo val of civil servants for “refusing” “to c ontribute to an y political fund, or to render any po lit ic al servi ce.” Pend leton Act, Pub. L No. 47 -27, § 2, 22 S tat. 403, 4 04 (1883). This was part of Congres s’s attempt to refor m the spoils system, which had rendered the fe deral civil servi ce corrupt and ineffec tive. 7 These remov al protecti ons applied as well to agencie s whose heads were themselves insula ted from removal. This first included the I nterstate Com merce Comm ission (“ICC”), created in 1887, whos e members could on ly be removed by t he President for good caus e. See Interstate Commerce Act, Pu b. L. No. 49 -104, § 1 1, 24 Stat. 379, 383 (1887) (allowing the President to re move a commissioner only “for ineff iciency, neglect of duty, or malfeasance in office”). The ICC was the archetype for what would become an al phabet soup of m ulti - member commissions and boards with simila r remo val p rot ection s — amon g them the NLRB, created in 1935. See generally Free Enter. F und, 561 U.S. at 541 (Breye r, J., dissenting); Mich ael Asimow, The 7 Under the spoils syst em, federal jobs were awarded based on political support, and officehol ders were expected to make political donations and, often, to use their offices t o benefit the President’s party. See Jerry L. Mashaw, Crea ting t he Ad ministra tive Const ituti on 176 (2012). Perfo rmance i n offic e — faithful exec ution of the law — was seconda ry. The Pendleton Act als o revived the Civil Service Commission, the predecesso r to the MSPB, which had la in dorma nt si nce its c rea tion in 1 871.

18 Administrative Judicia ry: ALJ's in Historical Perspective, 20 J. Nat ’l Ass’n Admin. L. Judges 157, 159 (2000). Many of these agencies carried out adjudicatory functions with the assistance of hearing e xaminers — the predecessors of modern ALJs — who themsel ves enjoyed removal protection under th e Pendleton Act and its subsequent expansions. See generally Mi chael Bogdanow & Thomas L anphear, History of the Merit Systems Protection Boa rd, 4 J. Fed. Cir. Hist. Soc’y 109, 110 –11 (2010) (describing the br oadening removal pr otections afforded civil servants over the next sev eral decades). Removal prot ections specific to he aring examiners were formalized in 1946 with the enactment of the Administrative Procedur e Act (“APA”), which ma de ex aminers “ removable by the agency in which t hey are employed only for good cause es tablishe d and determine d by th e Civil Service Comm ission [the predecessor to the MSPB].” APA, Pub. L. No. 79 -404, § 11, 60 Stat. 237, 244 (1946). The A PA also clarifi ed the nature and extent of examiners’ powers, whi ch were limite d to creating factu al records and recom mending dispositions to their agency heads, who were free to disregard th em. 8 See id. § 8(a), 8 This balance — between hearing examiners’ removal protections and the extent of their pow er — represented a com promise between proponen ts of an expanded adminis trative state, who su pported vesting a gencies with r obust ad judicatory p owers, and ske ptics of t he N ew Deal, who w orried about concentratin g too much power in the executive bran ch. See A simow, su pra, at 160 – 64.

19 60 Stat. at 2 42. Both provisions rema in sub stantively unchan ged to th is day. See 5 U.S.C. §§ 557(b), 752 1(a). Removal protections for the adjudicators of “good cause” — c urrentl y the MSPB — wer e put in place by the Civil Ser vice Reform Act of 1 978. Pub. L. No. 95 - 454, § 202(a), 92 Sta t. 1111, 1122. The Act, which created the MSPB to take ove r the adjudicative funct ions of the Civ il Service C ommission, respon ded to widespread concerns that the Commission had b een improperly influenced by political pressure. See Bogdanow & Lanphear, supra, at 112 –13, 115; Wi lliam V. Lunebur g, The Federal Personnel Complaint, Appeal, a nd Grievance System s, 78 Ky. L.J. 1, 18 n.84 (1989). Those remo val protections have remained in place for the n early half - century since. In sum, the long h istory of the remova l protections at issue her e — including the dual layers at the center o f Plaintiffs’ challenge — distinguish them from the statutory schemes in Seila Law a nd Free Enterprise Fund and support their va lidity. 3. State of Play Even though my view is that the law rem ains settled and we n eed not read tea leaves to dec id e this case, I acknowledge tha t ong oing lega l cha llen ges to removal protections of officers appointed by the President have n ot yielded

20 uniform re sults, as I b riefly address belo w. But to the extent t he law is in flu x, t hat flux would be besid e the point here. The i nvalidation of re moval pro tections for members of the MSPB and the NLRB’s Board would do nothin g more than moot Plaintiffs’ removal p rotections claim regar ding the NLRB’s ALJs, which is premised on a dua l layer of protection th at would no longer e xist. i. The Supreme Court Some indications su ggest that removal protections for top - level agency officials appointed b y the President — here, the NLRB ’s Board and members of the MSPB — may no t be long for this world. Although an interlocutory ruling, the Supreme Cou rt recently stayed a c ourt order prelimi narily enjoining t he President ’s no - cause r emoval of members of both bod ies. See Trump v. W ilcox, 145 S. Ct. 1415 (2025). It explained that “[b]ecaus e the Constitutio n vests the ex ecutive power in t he President, he m ay remove wit hout cause executive officers w ho exercise tha t power on his behal f, subject to narrow exceptions recogni zed by our precedents,” and thus “[t]he stay reflects our judgment that the Govern ment is likely t o show that both the NLRB and MSPB exercise considerab le executive power.” Id. at 1416 (citations o mitted). The Supreme C ourt neverthe less made clear tha t “ we do not ultimately dec ide in this posture whether the NLR B or MSPB

21 falls within such a recognized exce ption.” Id.; see also id. at 1417 – 19 (Kagan, J., dissenting) (expl aining that Hump hrey’s Executor “ rema ins good law, an d it forecloses both the President’s firings and the Court’s decision to award emergency re lief,” and that “ granting t he President’s reque st for a stay is nothing short of extraord inary” because “ the order all ows the President to ov errule Humphrey’s by f iat, again pending our eventual review”). T he Supreme Co urt in subsequent i nterlocutory orders ha s continued to allow th e President to remove s tatutorily protected o fficers without cause. See Trump v. Boyle, 145 S. Ct. 2653, 2654 (2025) (“[T] he Consumer Product Safety Commission exercise s executive power in a similar manner as t he National Labor Relations Board, an d the case does not otherwise differ from Wilcox in any pertinent respect.”); Trump v. Slaug hter, 146 S. Ct. 18, 18 (2025) (granting sta y of order enjoi ning no - cause r emoval of F TC commis sioner w ithout explanat ion). But it recentl y declined to disturb an ord er enjoining the Presid ent from removing a member of the Fede ral Reserve’s Bo ard of Gover nors. See Trump v. Cook, 146 S. C t. 79 (2025). Perhaps th is was because of the Supreme C ourt’s recognition in Wilcox that “[t]h e Federal Reserve is a uniquely structured, qu asi - p rivate ent ity tha t follows in the distin ct historical traditio n of the First and Second Banks of the

22 United States.” 145 S. Ct. at 1417. B ut see id. at 1421 (Kagan, J., dissentin g) (observing that “tod ay’s order poses a puzzle ” beca use “ the Federal R eserve’s independence rests on the s ame consti tutional and an alytic fou ndations as that of the NLRB, MS PB, FTC, FC C, and so on — wh ich is to s ay it r ests larg ely on Humphrey’s ”). The Supreme Court’s explici t reservation of the question notwith standing, Wilcox ’s reasoning (and its p rogeny of interlocutory ruling s, to the extent they can be characterized as such) has little bear ing on this case. Wilcox co ntinu ed to recogniz e the “narrow excepti ons recognized by our prec edents,” id. at 1416 (c iting Seila Law, 591 U. S. at 215–218), and premised its ru ling on the determ ination that the NLRB and MSP B exercise “consider able executive powe r,” id. As explaine d above, the NLRB ’s ALJs fit co mfortably within those nar row exceptions pre cisely because they ar e infe rior officers who carry ou t exclusively adjudicatory f unctions, as opposed to wieldi ng executive power in any significant manner. The Supreme Court’s interlocutor y decisions do not su pport a wholesale re jection of remova l

23 protections, let alone underm ine the theoret ical underpinnings of such protections. 9 ii. Our Sister Circuits Of the federal circui t courts to squarely confront removal pr otections for ALJs, the Ninth (t wice), Tenth, and Eleventh have ex plicitly held that such protections do n ot violate Ar ticle II, for re asons simi lar to the for egoing. See Rabadi v. U.S. Drug Enf’t Admin., 122 F.4 th 371, 375 –76 (9th Cir. 202 4) (uphold ing dual - layer DEA ALJ removal protec tions be cause “DEA ALJ s perform p urely adjudicatory funct ions,” because “ Congress does not mandate that the DEA use ALJs as presiding officers for admin istrative h e aring s,” a nd because their 9 Recent federal ci rcuit court decisions have applied Wilcox ’s re asoni ng in c hall enges t o re moval protections for the NLRB’s Board m embers. See Space Exp l. Tec hs. Corp. v. NLRB, 151 F.4th 7 61, 776 (5th Ci r. 2025) (aff irming grant of pr eliminary inj unctio n halting NLRB proceeding s due to likelih ood of success o n the mer its of const ituti onal cha llenge, and d istingu ishing Hum phrey ’s Ex ecuto r by explainin g that “ [u]nli ke the FTC co mmissioner s in 19 35, N LRB Board Members today ‘wie ld subst antial ex ecutive po wer’” (footn ote omi tted) (quoting Seila Law, 591 U.S. at 218)); Harris v. Bessent, 160 F.4th 1 235, 1251 (D.C. Ci r. 2025) (invalida ting NL RB Board member good - cause removal protection bec ause “Congress has vested the NLRB with s everal executive powers beyond the ones addressed in Hu mphrey's Exe cutor ”). Like Wilcox however, all agree th at Hump hrey’s E xecut or is still g ood law. See Sp ace Ex pl. T echs. Corp., 151 F.4t h at 776 – 77 (recognizin g that “ Hump hrey’s E xecut or carved out an ‘“exception” to the general “rule” th at lets a presid ent remov e sub ordi nates a t will’” a nd that the “cont ours of the Hump hrey’s Ex ecutor exception depend upon th e characteristics of the agency before the Court” (quoting Consu mers ’ Rsch. v. Consum er Prod. Safety Comm ’n, 91 F.4th 342, 352 – 53 (5t h Cir. 2024))); Ha rris, 160 F.4th at 1248 – 49 (reco gnizin g that “we must appl y Humphre y’s Executo r as best we can, unless and unt il the Supreme Court overrules it” and that the NLRB and MSPB ’s p owers “f all outsid e any e xcept ion based on that decisio n”); see also Wilc ox, 145 S. Ct. at 1419 (Kagan, J., dissent ing) (“[L]ower courts recen tly faced with ch allenges to independent agen cies’ remova l provi sions ha ve u nifor mly rejec ted the m base d on Humphrey’ s.”); Harris, 160 F.4th at 1258 (P an, J., dissentin g) (“[M]y collea gues make us the first c ourt t o strike down the indep endence of a tra ditiona l multimember expert agen cy .. ..”). For the same reason s Wilcox is inapp osite, the se circuit court ca ses are inapposite h ere.

24 “decisions are re viewed de novo by the DEA Administra tor” (c iting D ecker Coal Co. v. Pehringer, 8 F. 4th 1123, 1133 –35 (9th Cir. 2021))); L eachco, Inc. v. Con sumer Prod. Safety Comm’ n, 103 F. 4th 748, 764 (10th Cir. 2 024) (upho lding dua l - layer CPSC ALJ protections beca use the ALJ in quest ion “performed ‘a p urely adjudicatory function’” and “Con gress did not statutorily req uire that the C PSC use ALJs for administrative adj udications”); Walmart, Inc. v. Chief Admi n. L. Judge of th e Off. of the Chief Admin. Hearing Officer, 14 4 F.4th 1315, 1343 – 4 5 (11th Cir. 2025) (upholding dual- layer OCAHO ALJ protections because such ALJs have “only adjudicat ive functions” and have “essentially no powe r to render a final de cision on behalf of the United St ates unless permit ted to do so by the Attorney General ”). Only the Fifth Circuit has held oth erwise. In Jarkesy v. SEC, a d ivided panel explained that “[i ]f principal offi cers cannot in tervene in their inferi or officers’ actio ns except in rare c ases, the Presi dent lacks the c ontrol necessary t o ensure that the laws are fa ithfully execu ted,” pointi ng out that the SEC ALJs in q uestion “exercise co nsiderable p ower over administrative case records by controlling the presentation and admission of evidence; they may punish contempt uous conduct; and often their decis ions are final and b inding.” 34 F.4th 446, 464 (5th C ir. 2022), aff’d on other gro unds, 603 U.S. 10 9 (20 24). The dissent took the r oute of th e other

25 circuits, explaining that the SEC’s dual - layer removal protections for its ALJs is constitutional because the “ ALJs perfor m an adjud icative function.” Id. at 475 (Davis, J., dissent ing); see also Leac hco, Inc., 103 F.4th at 76 4 (“And while t he Fifth Circuit found double - layered re moval pr otections for ALJs unconstitutiona l in Jarkesy v. Securities and Exchange Commiss ion, that court seemed to disregar d the distinction between the PCAOB members in Free Enterp rise Fund, who exercised executive func tions, and ALJs, wh o perfo rm adjudicator y functions.”). The Fifth Circ uit ha s rec ent ly ap plied its r easo nin g in Jarkesy to inval idate the dua l - layer protections of the NLRB ’s ALJs. See Space Expl. Techs. Corp. v. NLRB, 151 F.4th 761, 774–75 (5th Cir. 20 25). The Third, Fourth and Sixth Circu its meanwhile have reje cted cha lleng es to ALJ removal protect ions on the basis that the alleged constitution al violation per se does not cons titute cognizable h arm. Se e Axalta Coating Sys. LLC v. Fed. Aviatio n Admin., 144 F.4th 467, 480 (3d Cir. 2025) (“ The only harm that Axalta asserts is the fact of having been made to appear befo re an ALJ who benefited from alleged ly unconstitutional re moval pr otections. Unde r [Collins v. Yellen, 594 U.S. 220, 258 – 60 (2021)] an d [NLR B v. Starbucks Corp., 125 F.4th 78, 88 (3d C ir. 2024) ], this asser ted harm cannot provide a basis for granting re lief to Axalta. ”); Dominion Coal Corp. v.

26 Dir., Off. of Workers’ Comp. Programs, N o. 23 -2310, — F.4 th —, 2026 WL 110955, at *6 (4th Cir. Jan. 15, 2026) (“[A] lit igant can ’ t ‘ have the under lying agency action set aside absent re ason to believe that the un constitutional rem oval provis ion itself inflicted harm.’” (qu oting K & R Contract ors, LLC v. Keene, 86 F.4th 135, 1 49 (4th Cir. 2023))); Ca lcutt v. Fed. Deposit Ins. Corp., 37 F.4th 293, 318 (6th Cir. 2022) (“[E] ven if we were to accept that the r emoval protect ions for th e FDIC ALJs pose d a constitu tio nal prob lem, Ca lcutt is not e ntit led to re lief unless he establishes that those protections ‘ inflict[ed] compen sable harm, ’ and he has not made this showing. ” (q uoting Collins, 594 U.S. at 2 59)), rev’d on other gr ounds, 598 U.S. 6 23 (2023). In par ticular, even though its holdin g was based on the lack of cognizab le harm, the Sixth C ir cuit in Calcutt nevertheless explained that “ even if [plaintiff] established that the removal protections cause d him harm, Free Enterprise Fund explicitly excludes ALJs from its prohibition on multiple levels of for - c ause removal protection,” and found that FDIC ALJs “perform adjudicatory fun ctions” subject to rev iew by the FDIC Board, rendering t heir removal restrictio ns cons titut iona l. 37 F.4 th at 318–20. All this to say: by my count, the Fifth Ci rcuit stands alone in ho lding that dual- layer re moval protections for agency ALJs are uncons titutional. Rather, the

27 reasoning laid out above is in accord wit h the major ity of our sister circuits, falls within settled p recedent, and is support ed by both fun damental se paration -of- powers principles and his torical practice. Plaintiffs are unlikel y to succeed on the merits of their con stitutional cha llenge to the remo val prote ctions afforded the NLRB ’s ALJs. B. Appointment of Ad ministrative L aw Judge Chu Plaintif fs’ Appointments Clau se claim presents a narrower i ssue: whether an ALJ who was invalidly appointed, b ut whose appoin tment was r atified before his decision was issued, r enders continuation of the procee ding befor e the Board a per se co nstit ution al in jury. 10 To me, th e an swer is pla in: no. In NLRB v. Newark Electric Co., we he ld that actio ns by an inva lidly appointed officer could be rendered valid by sub sequent ratification. 14 F.4th 152, 160–61 & n. 6 (2d Cir. 2021). We looked approving ly to the D. C. Circuit’s decision in Wilk es- Barre Hosp ital Co. v. NRLB, 857 F.3d 364, 370 – 71 (D.C. Cir. 2017), which held th at a prope rly const itu ted Bo ard could r atif y th e init ially inv alid appointment of an inferior officer, w ho could then r atify his o wn invalid acts. 10 There is no n eed to decide whether subje ctio n to further proceedings before Judge Chu would impose such a n injury. Th at qu estion is now mo ot, as those p roce edin gs have c onclud ed and Judge Chu has retired.

28 While Plai ntif fs’ c lai m pres ents a nov el q ue stion in o ur c ircu it, it logic ally follo ws from these preced ents that, if the c onstitutional defect of a decision can be cured by subsequent ratification, the cons titutional defect of a proce eding can be cured as wel l, at leas t prospectively. It w ould make little sens e if the outc ome of a proceeding could b e made constitutiona lly valid but the p roceeding itse lf could not. Once Judge Chu’s appointment w as properly r atifie d, any her e -and- now injury stemmi ng from t he inval idity of his appoin tment ceased. 11 After tha t po int, Plaintiffs were no lo nger subject to a procee ding before an i nvalidly appo inted ALJ. Lucia v. SEC, 585 U.S. 237 (2018), is not t o the contrary. Ther e, the Supreme Court he ld that the proper remedy for an invalid d ecision rendered by an improperly app ointed ALJ was a new hearing, either before a different ALJ or before the Commission itself. 585 U.S. at 251 –52. Th e Court sa id noth ing about here -and- now injuri es or whether enjoining an agency proceeding is an appropria te or permissibl e remedy for a faulty appointment. Rather, Lucia dealt with an Ap pointmen ts Clause challenge in its typ ical p ostu re — on judic ia l revie w 11 I would a ssume wit hout d eciding tha t such an in jury wou ld be cog niza ble and that Pla intif fs suffered it. Any q uestion as to whe ther Jud ge Chu’ s initia l appoi ntme nt will have affected the va lidity of the a gency’s fi nal dec ision is not ye t ripe. T hat quest ion must awa it judicia l revi ew of t he decis ion itself, which the Boar d has ye t to i ssue.

29 of the agency’s final action. The question of w hether c ontinu ing an agenc y proceeding after ratificat ion of a n init ially faulty appointment imposes a here -and- now injury — le t a lon e one th at mi ght ju stif y permanently enjoining the entire proceeding — is a different one ent irely. * * * Plaintiffs have fai led to demonstr ate a likelihoo d of success on t he merits of their constitutional challenges. While I join in the majority’s conclusion that Plaintiffs fail to dem onstrate irreparable harm, I thin k Pla intif fs als o fa il to br ing a constitutional challenge of any merit. I would not sh y away fr om reaching the latter.