Care One, LLC v. NLRB

23-7475

Care One, LLC v. NLRB

In the

United States Court of Appeals

for the Second Circuit

AUGUST TERM 2024

No. 23-7475-cv

CARE ONE, LLC, HEALTHBRIDGE MANAGEMENT, LLC, CARE REALTY, LLC, 107

OSBORNE STREET OPERATING COMPANY II, LLC, D.B.A. DANBURY HCC, 710 LONG

RIDGE ROAD OPERATING COMPANY II, LLC, D.B.A. LONG RIDGE OF STAMFORD, 240

CHURCH STREET OPERATING COMPANY II, LLC, D.B.A. NEWINGTON HEALTH CARE

CENTER, 1 BURR ROAD OPERATING COMPANY II, LLC, D.B.A. WESTPORT HEALTH

CARE CENTER, 245 ORANGE AVENUE OPERATING COMPANY II, LLC, D.B.A. WEST

RIVER HEALTH CARE CENTER, 341 JORDAN LANE OPERATING COMPANY II, LLC,

D.B.A. WETHERSFIELD HEALTH CARE CENTER, 2028 BRIDGEPORT AVENUE

OPERATING COMPANY II, LLC, D.B.A. GOLDEN HILL HEALTH CARE CENTER, 745

HIGHLAND AVE OPERATING CO LLC, D.B.A. HIGHLANDS HEALTH CARE CENTER,

162 SOUTH BRITAIN ROAD OPERATING COMPANY II, LLC, D.B.A. RIVER GLEN

HEALTH CARE CENTER,

Plaintiffs-Appellants,

v.

NATIONAL LABOR RELATIONS BOARD, LAUREN MCFERRAN, IN HER CAPACITY AS A

MEMBER OF THE NATIONAL LABOR RELATIONS BOARD, GWYNNE WILCOX, IN HER

CAPACITY AS A MEMBER OF THE NATIONAL LABOR RELATIONS BOARD, MARVIN

KAPLAN, IN HIS CAPACITY AS A MEMBER OF THE NATIONAL LABOR RELATIONS

BOARD, DAVID PROUTY, IN HIS CAPACITY AS A MEMBER OF THE NATIONAL LABOR

RELATIONS BOARD, KENNETH R. CHU, IN HIS CAPACITY AS AN ADMINISTRATIVE LAW

JUDGE OF THE NATIONAL LABOR RELATIONS BOARD,

Defendants-Appellees. *

*The Clerk of Court is respectfully directed to amend the caption as indicated

above.

__________

On Appeal from the United States District Court

for the District of Connecticut

__________

ARGUED: NOVEMBER 12, 2024

DECIDED: FEBRUARY 5, 2026

________________

Before: RAGGI, PÉREZ, and KAHN, Circuit Judges.

________________

Plaintiffs, several health care facilities and their affiliates, appeal from an

October 4, 2023 order of the United States District Court for the District of

Connecticut (Chatigny, J.) denying their motion for a preliminary injunction to halt

proceedings against them before the National Labor Relations Board (“NLRB”) for

alleged unfair labor practices. Plaintiffs submit that the district court erred in

finding them unlikely to succeed on their claim that the challenged proceedings

are ultra vires for two reasons: (1) the Administrative Law Judge (“ALJ”) who

initially presided over their violation proceedings was appointed by an NLRB

whose Board lacked a quorum of lawfully appointed members, see U.S. Const. Art.

II, § 2; and (2) two layers of statutory for-cause removal protection

unconstitutionally shielded the ALJ from removal by the President, see id. §§ 1, 3.

We need not here consider the likelihood of plaintiffs succeeding on the merits of

these claims because, in any event, they cannot show the irreparable harm

required for injunctive relief.

AFFIRMED.

Judge Pérez concurs in a separate opinion.

2

DANIEL R. BENSON (Christian T. Becker and Amit R.

Vora, on the briefs), Kasowitz Benson Torres LLP, New

York, NY, for Plaintiffs-Appellants.

MICHAEL S. DALE (Jennifer A. Abruzzo, Peter Sung Ohr,

Nancy E. Kessler Platt, Dawn L. Goldstein, Kevin P.

Flanagan, Paul A. Thomas, and Grace L. Pezzella, on the

brief), National Labor Relations Board, Washington, DC,

for Defendants-Appellees.

REENA RAGGI, Circuit Judge:

Plaintiffs Care One LLC, various other named health care facilities, and their

affiliates (collectively “Care One”), appeal from an October 4, 2023 order of the

United States District Court for the District of Connecticut (Robert N. Chatigny,

Judge) denying their motion for a preliminary injunction to halt proceedings

against them before the National Labor Relations Board (“NLRB”) 1 for alleged

unfair labor practices. See Care One, LLC v. NLRB, No. 3:23-cv-00831, 2023 WL

6457641, at * 1 (D. Conn. Oct. 4, 2023). Care One submits that the district court

erred in finding it unlikely to succeed on its claim that the challenged proceedings

are ultra vires in two respects: (1) the NLRB Administrative Law Judge (“ALJ”)

who presided over Care One’s violation proceedings was appointed by a Board

that lacked a quorum of lawfully appointed members, see U.S. Const. Art. II, § 2;

and (2) two layers of statutory for-cause removal protection unconstitutionally

shielded the ALJ from removal by the President, see id. §§ 1, 3. We need not here

consider the likelihood of Care One succeeding on these claims because, in any

1 Hereafter in this opinion, we use “NLRB” to reference the National Labor Relations

Board as an agency; we use “Board” to reference the five Board members appointed by

the President who head the agency.

3

event, it cannot show a likelihood of irreparable harm from the continuance of

NLRB proceedings in their present posture as required for preliminary injunctive

relief. Quite simply, all proceedings against Care One before the challenged ALJ

have concluded, and the only pending proceedings are before the Board, all of

whose members have now been lawfully appointed, and which is empowered to

consider all questions of law and fact de novo. Accordingly, the order of the district

court denying a preliminary injunction to halt pending NLRB proceedings against

Care One is affirmed.

BACKGROUND

I. Legal Framework

Before discussing relevant facts, it is useful to summarize the legal context

in which they occurred.

The NLRB is an executive agency established by Congress pursuant to the

National Labor Relations Act (“NLRA”), see generally 29 U.S.C. §§ 151–69, and

charged therein with investigating, prosecuting, and adjudicating claims of

“unfair labor practice[s]” through administrative proceedings, id. § 160. The

NLRA provides for the NLRB to be led by a Board comprised of five members,

each appointed by the President to a five-year term upon confirmation by the

Senate. These members are subject to removal by the President “for neglect of

duty or malfeasance in office, but for no other cause.” Id. § 153(a).

Prosecuting authority for NLRA violations is vested in the NLRB’s General

Counsel. See id. § 153(d). In the first instance, the General Counsel pursues NLRB

administrative proceedings before a Board-appointed ALJ, who oversees

discovery, develops a factual record, and recommends a disposition to the Board.

See 29 C.F.R. §§ 102.34, 102.35(a). ALJs may be terminated “only for good cause

established and determined by the Merit Systems Protection Board” (“MSPB”), 5

U.S.C. § 7521(a), the members of which may themselves be removed by the

4

President “only for inefficiency, neglect of duty, or malfeasance in office,” id. §

1202(d); see also id. § 1201.

A party whose actions are the subject of NLRB administrative proceedings

may request interlocutory Board review of any ALJ decision made in the course of

such proceedings. See 29 C.F.R. § 102.26. In any event, at the conclusion of

proceedings before an ALJ, the Board automatically transfers the case to itself. See

id. §§ 102.45–.46. Once the Board has transferred the case, a party may take

exception to any of the ALJ’s factual findings and legal conclusions, all of which

are subject to the Board’s de novo review. See id.; see, e.g., Blue Sch. & Loc. 2110,

Tech., Off. & Pro. Union, UAW, 373 NLRB No. 120, 2024 WL 4346403, at *5–6 (Sept.

27, 2024) (reversing ALJ’s factual findings and legal conclusions). During its

review of the parties’ “timely and proper exceptions,” the Board may “reopen the

record” and hear testimony or take evidence as if the Board were developing the

record in the first instance. 29 C.F.R. § 102.48. Only the Board can render a final

decision in NLRB administrative proceedings. See id. §§ 102.45–.49.

II. Factual and Procedural Background

In 2012, the General Counsel filed various administrative complaints of

unfair labor practices against Care One, all of which were consolidated and

assigned to ALJ Kenneth Chu. 2 Between September 2012 and October 2014, ALJ

Chu held 39 days of hearings to develop the factual record as to those allegations.

2

In parallel, the NLRB obtained a preliminary injunction in the United States District

Court for the District of Connecticut, which prohibited some Care One facilities from

continuing the labor practices alleged to be unfair in the administrative proceedings. See

Kreisberg v. Healthbridge Mgmt., LLC, No. 3:12-cv-1299, 2012 WL 12929503, at *2 (D. Conn.

Dec. 11, 2012), aff’d, 732 F.3d 131 (2d Cir. 2013). This action remains pending. See id., 2014

WL 12652479 at *4 (D. Conn. May 30, 2014) (“All further proceedings in this Court are

hereby stayed until the appeals are decided.”); see also id. Min. Entry dated Dec. 2, 2025

(ordering next regular status report).

5

While these proceedings were ongoing, the Supreme Court decided NLRB

v. Noel Canning, 573 U.S. 513, 517 (2014), which held three January 2012

presidential recess appointments of Board members invalid, thereby rendering

invalid all actions taken by the Board between January 2012 and August 2013, after

which the Board again had a quorum of validly appointed members, see Wilkes-

Barre Hosp. Co. v. NLRB, 857 F.3d 364, 370 (D.C. Cir. 2017). Among those invalid

actions was the improperly-constituted Board’s July 2012 appointment of ALJ

Chu. Within a month of the Noel Canning decision, however, on July 18, 2014, a

quorum of validly appointed Board members “ratif[ied] nunc pro tunc all

administrative, personnel and procurement matters approved by the Board or

taken by or on behalf of the Board from January 4, 2012 to August 5, 2013,” which

included the July 2012 appointment of ALJ Chu. J. App’x 65.

No administrative proceedings pertaining to Care One were conducted

from 2015 to 2022 due to certain interlocutory appeals and COVID-19-related

delays. Proceedings briefly resumed in 2022, but were stayed after Care One

obtained an injunction from the United States District Court for the District of New

Jersey. See In re 710 Long Ridge Rd. Operating Co. II, LLC, 637 F. Supp. 3d 161, 187

(D.N.J. 2022). 3 Some months later, the Third Circuit reversed and vacated that

injunction, see id. No. 22-3046, 2023 WL 3116434, at *4 (3d Cir. Apr. 27, 2023),

whereupon ALJ Chu ordered that administrative proceedings against Care One

resume on June 26, 2023.

Two weeks prior to that date, however, Care One brought another action in

the District of New Jersey seeking, inter alia, a temporary restraining order halting

the NLRB proceedings. For the first time, Care One argued that (1) ALJ Chu was

not lawfully authorized to conduct NLRB proceedings because he was appointed

3

In the New Jersey case, the parties were litigating the validity and scope of releases that

certain plaintiffs had obtained during Chapter 11 bankruptcy proceedings that may have

affected the NLRB’s ability to pursue alleged unfair labor practice claims. See id.

6

by a Board, the majority of whose members’ own appointments were pronounced

in violation of the Constitution’s Appointments Clause in Noel Canning, see U.S.

Const. Art. II § 2; and (2) the dual for-cause removal protections afforded ALJs

unlawfully infringed on the President’s removal powers under the Constitution’s

Take Care and Vesting Clauses, see id. §§ 1, 3. The New Jersey district court denied

a temporary restraining order and granted the NLRB’s motion to transfer the case

to the District of Connecticut, where Care One raised similar arguments in moving

for a preliminary injunction. See Care One, LLC v. NLRB, 680 F. Supp. 3d 540, 549

(D.N.J. 2023). The Connecticut district court denied a preliminary injunction on

the ground “that plaintiffs have not met their burden of demonstrating that their

claims are clearly likely to succeed on the merits.” Care One, LLC v. NLRB, 2023

WL 6457641, at *1. This timely appeal followed.

Meanwhile, NLRB administrative proceedings continued, with ALJ Chu

issuing a decision on May 29, 2024, finding Care One to have committed many of

the alleged unfair labor practices and recommending various remedial actions to

the Board. Soon after, ALJ Chu retired from the NLRB. Meanwhile, the Board

entered a pro forma order transferring Care One’s case to itself, where it presently

remains pending after the parties filed several exceptions and cross-exceptions to

the ALJ’s rulings.

DISCUSSION

I. Jurisdiction

At the outset, we note that the NLRB challenges the jurisdiction of the

district court and, by extension, this court, to enjoin its pending proceedings

against Care One. The NLRB submits that the statute generally affording federal

courts jurisdiction to hear “all civil actions arising under” federal law, 28 U.S.C. §

1331, does not obtain where, as here, Congress has provided for the Board itself to

review agency actions and that review has not yet resulted in a final order, see 29

U.S.C. § 160(e)–(f); see also Axon Enter., Inc. v. FTC, 598 U.S. 175, 185 (2023)

7

(observing that where Congress has provided for review of challenged agency

action by a court of appeals “following the agency’s own review process,” proper

inference is that Congress intended to divest district courts of jurisdiction over

such actions). The NLRB acknowledges that such channeling does not always

preclude the exercise of jurisdiction by district courts. See Axon Enter., Inc. v. FTC,

598 U.S. at 180 (recognizing district courts’ jurisdiction to hear and resolve

constitutional challenges to agency “structure”); Thunder Basin Coal Co. v. Reich,

510 U.S. 200, 212–13 (1994) (identifying three questions whose answers could

signal that Congress did not intend to preclude court action pending final agency

review). Nevertheless, it submits that the district court lacks jurisdiction here

because Care One does not challenge the NLRB’s fundamental structure in a way

that casts doubt on the constitutionality of “all or a broad swath of its work,” and

the Thunder Basin questions do not yield answers supporting the exercise of

jurisdiction. Appellees’ Br. at 46–47 (quoting Axon Enter., Inc. v. FTC, 598 U.S. at

189); see id. at 47–50.

In considering this argument, we note that the NLRB does not—and

cannot—argue that Care One’s appointments and removal challenges fail to

present the sort of “case” or “controversy” necessary to support a federal court’s

exercise of constitutional jurisdiction. See, e.g., NLRB v. Noel Canning, 573 U.S. at

522 (recognizing appointments challenge to present Article III “controversy” even

where Board “now unquestionably has a quorum” of properly appointed

members); Seila L. LLC v. CFPB, 591 U.S. 197, 210–11 (2020) (recognizing standing

sufficient for Article III jurisdiction where removal challenge complains of “injury

. . . traceable to the decision below” that “would be fully redressed” upon reversal

and remand). Nor does the NLRB question the courts’ “statutory” jurisdiction to

hear Care One’s removal-protection challenge. See Springfield Hosp., Inc. v.

Guzman, 28 F.4th 403, 416 (2d Cir. 2022) (“[T]here is a distinct difference between

jurisdictional questions of a statutory nature and jurisdictional questions of a

constitutional nature.”). Rather, the NLRB challenges only the courts’ statutory

8

jurisdiction to entertain Care One’s Appointments Clause challenge before the

Board itself issues a final decision.

To rule decisively on that jurisdictional challenge, this court would have to

decide whether, and to what extent, recent Supreme Court precedent abrogates

our own. Compare Axon Enter., Inc. v. FTC, 598 U.S. at 195 (approving collateral

review for removal-protection challenge because claim goes to whether “structure

. . . of an agency violates the Constitution”), with Tilton v. SEC, 824 F.3d 276, 291

(2d Cir. 2016) (holding Appointments Clause challenge “must be resolved in the

first instance through agency proceedings”). We would also have to consider the

proper reach of supplemental jurisdiction in the circumstances of this case. See 28

U.S.C. § 1367(a), (c). Because these questions of “statutory (non-Article III)

jurisdiction [are] complex” and because Care One’s claims “fail[] on other more

obvious grounds”—specifically, Care One’s inability to demonstrate irreparable

harm in the absence of a preliminary injunction—we deem it preferable in this case

to “assume hypothetical jurisdiction” and to affirm the denial of an injunction on

that more obvious ground. Miller v. Metro. Life Ins. Co., 979 F.3d 118, 123 (2d Cir.

2020); see Springfield Hosp., Inc. v. Guzman, 28 F.4th at 416 (“When a jurisdictional

issue is statutory in nature, we . . . may proceed to dismiss the case on the merits

rather than engage with the jurisdictional question.”).

II. Care One Is Not Entitled to a Preliminary Injunction

A. Standard of Review

“We review a district court’s denial of a preliminary injunction for abuse of

discretion, examining the legal conclusions underpinning the decision de novo and

the factual [findings] for clear error.” Green Haven Prison Preparative Meeting of the

Religious Soc’y of Friends v. New York State Dep’t of Corr. & Cmty. Supervision, 16

F.4th 67, 78 (2d Cir. 2021). Our review is not limited to the precise reasoning of the

district court; rather, we may affirm the denial of a preliminary injunction “on any

9

ground supported by the record.” Hudson Shore Assocs. Ltd. P’ship v. New York, 139

F.4th 99, 106 (2d Cir. 2025).

When, as here, a preliminary injunction will affect government action

taken in the public interest pursuant to a statute or regulatory scheme,

the moving party must demonstrate (1) irreparable harm absent

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. Hampton Airport, Inc. v. Town of East Hampton, 841 F.3d 133, 143 (2d

Cir. 2016) (internal quotation marks omitted). Because the requirements are

conjunctive, a movant must satisfy all three to secure a preliminary injunction.

B. The Parties’ Arguments

Insofar as the district court found Care One not to have satisfied the second

requirement—i.e., a likelihood of success on the merits—Care One argues that the

court abused its discretion by requiring a showing of “a clear likelihood” of

success as opposed to a mere “likelihood” of success, and by failing in any event

to explain adequately its likelihood analysis. Appellants’ Br. at 26–27, 42–45. Care

One submits that this court can itself find all three requirements for a preliminary

injunction satisfied.

The NLRB contests each of Care One’s arguments. As to the last argument,

the NLRB maintains, inter alia, that Care One failed to demonstrate the likelihood

of irreparable harm necessary for a preliminary injunction. We agree and affirm

on that ground without addressing the likelihood of Care One succeeding on the

merits of its claims or the weight of the public interest.

C. The Propriety of First Considering Irreparable Harm

As this court has long recognized, “irreparable harm is the single most

important prerequisite for the issuance of a preliminary injunction.” JTH Tax, LLC

v. Agnant, 62 F.4th 658, 672 (2d Cir. 2023) (quoting Faiveley Transp. Malmo AB v.

10

Wabtec Corp., 559 F.3d 110, 118 (2d Cir. 2009) (quoting Rodriguez v. DeBuono, 175

F.3d 227, 233–34 (2d Cir. 1999))). Consistent with this view, we have frequently

stated that a party seeking a preliminary injunction “must first demonstrate that

such injury is likely before the other requirements for the issuance of an injunction

will be considered.” Freedom Holdings, Inc. v. Spitzer, 408 F.3d 112, 114 (2d Cir.

2005) (quoting Rodriguez v. DeBuono, 175 F.3d at 233–34). Thus, we have

routinely—even summarily—upheld the denial of a preliminary injunction based

on a movant’s failure to demonstrate irreparable harm without considering other

requirements for such relief. See, e.g., St. Joseph’s Hosp. Health Ctr. v. American

Anesthesiology of Syracuse, P.C., 131 F.4th 102, 106–08 (2d Cir. 2025) (summary

order); JBR, Inc. v. Keurig Green Mountain, Inc., 618 F. App’x 31, 33–36 (2d Cir. 2015)

(summary order).

This is not to suggest that a court must always consider irreparable harm

before likelihood of success on the merits when reviewing the denial of a

preliminary injunction. See, e.g., Gazzola v. Hochul, 88 F.4th 186, 194 (2d Cir. 2023)

(upholding denial of preliminary injunction, explaining that because district court

correctly assessed movants’ lack of standing and failure to demonstrate likely

success on merits, court would “not reach the issue of irreparable harm”). But it

is frequently easier and more prudent to do so.

At the heart of the merits arguments in this appeal are two challenging

questions of law: (1) whether error in the initial appointment of an NLRB ALJ by

an unlawfully constituted Board, see NLRB v. Noel Canning, 573 U.S. at 519, is

satisfactorily cured by a lawfully constituted Board’s subsequent ratification of

that appointment; and (2) whether the statutory removal protections afforded

ALJs, both directly by 5 U.S.C. § 7521(a)–(b) and indirectly by id. § 1202(d)

(pertaining to MSPB members who review ALJ removals) and 29 U.S.C. § 153(a)

(pertaining to Board members who approve ALJ removals), unconstitutionally

interfere with the President’s exercise of executive power conferred by the

11

Constitution, see U.S. Const. Art. II, §§ 1, 3. 4 These questions raise significant

constitutional issues about the separation of powers, particularly about the

President’s authority to appoint and control persons serving in the executive

branch and about Congress’s authority to confirm certain executive appointments

and to afford a degree of employment protection to persons serving in the

executive branch. Similar issues are presently being litigated in a number of

federal cases, with intervening actions by the Supreme Court making it difficult to

know what balances are appropriately struck in the various contexts in which they

can arise. See, e.g., Trump v. Wilcox, 145 S. Ct. 1415, 1416 (2025) (staying district

court order enjoining President from removing members of NLRB and MSPB

without cause); accord Trump v. Boyle, 145 S. Ct. 2653, 2654 (2025) (relying on Wilcox

to stay judgment permanently enjoining termination of Consumer Product Safety

Commission members without cause). But see Trump v. Cook, 146 S. Ct. 79, 79

(2025) (reserving decision on motion to enjoin President’s for-cause removal of

Federal Reserve Board Governor pending oral argument).

To be sure, if this appeal could not be decided without considering the likely

merits of Care One’s constitutional challenges, this court would have to address

these issues, applying presently controlling law to the best of our ability. See, e.g.,

Nestor v. Pratt & Whitney, 466 F.3d 65, 72 n.8 (2d Cir. 2006). However, it is not

necessary that we do so here because Care One’s inability to show the likelihood

of irreparable harm necessary to warrant a preliminary injunction is a

straightforward ground for decision at this stage in the case.

4

Care One cites the statutory removal protections afforded MSPB and NLRB members

only insofar as they afford an extra layer of protection to ALJs. Nowhere does it argue

on appeal that the removal protection afforded Board members is an independent ground

to enjoin further proceedings before the Board. We thus deem any such argument

waived. See Torcivia v. Suffolk County, 17 F.4th 342, 366–67 (2d Cir. 2021).

12

D. Care One Cannot Show Likely Irreparable Harm in the Absence of a

Preliminary Injunction

In urging irreparable harm, Care One argues that (1) the Supreme Court has

recognized that “being subjected to unconstitutional agency authority” in the form

of “a ‘proceeding by an unaccountable ALJ’” is a “here-and-now injury” that is

“impossible to remedy” once the administrative proceeding is over, Appellants’

Br. at 60 (quoting Axon Enter., Inc. v. FTC, 598 U.S. at 191); and, in any event, (2) it

is entitled to the “presumption of irreparable injury” that flows from the violation

of certain constitutional rights, id. at 61–62 (quoting Agudath Israel of Am. v. Cuomo,

983 F.3d 620, 636 (2d Cir. 2020)). Neither argument persuades.

1. Axon Enterprise Does Not Support a Preliminary Injunction

in This Case

Care One’s reliance on Axon Enterprise to argue that it has satisfied the

irreparable harm requirement for a preliminary injunction is misplaced. As the

Tenth Circuit has observed, the Supreme Court in Axon Enterprise identified “here-

and-now injury” only to address the “strictly jurisdictional question” of whether

a litigant could challenge ongoing administrative proceedings collaterally; the

Court made no mention of “plaintiffs’ entitlement to preliminary injunctive relief.”

Leachco, Inc. v. Consumer Prod. Safety Comm’n, 103 F.4th 748, 758–59 (10th Cir. 2024).

Indeed, the phrase “here-and-now injury,” as used in Axon Enterprise, originated

in Seila Law LLC v. CFPB. 591 U.S. 197, 212 (2020). Seila Law was a case concerned

with a party’s standing to pursue its claim, not a party’s entitlement to equitable

relief on that claim. See id. at 210–13. It was in identifying standing (a requirement

for jurisdiction) that the Supreme Court there observed that when a removal

13

provision “violates the separation of powers it inflicts a here-and-now injury . . .

that can be remedied by a court.” Id. (internal quotation marks omitted). 5

The Supreme Court thereafter “clarified” that what it said about “here-and-

now injury” in Seila Law was limited to standing and did not pertain to the

propriety of any relief:

What we said about standing in Seila Law should not be

misunderstood as a holding on a party’s entitlement to relief based on

an unconstitutional removal restriction. We held that a plaintiff that

challenges a statutory restriction on the President’s power to remove

an executive officer can establish standing by showing that it was

harmed by an action that was taken by such an officer . . . . But that

holding on standing does not mean that actions taken by such an

officer are void ab initio and must be undone.

Collins v. Yellen, 594 U.S. 220, 258 n.24 (2021) (citation omitted). This clarifying

limitation is properly understood 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. Consumer Prod. Safety Comm’n, 103 F.4th at 759. 6

5

Seila Law, in turn, derived the “here-and-now” language from Bowsher v. Synar, 478 U.S.

714, 727 n.5 (1986). While the Court there addressed the merits of a constitutional

removal issue, it used the “here-and-now” language only to recognize the ripeness of

plaintiff’s claim as necessary for jurisdiction. See id. (rejecting “argument that

consideration of the effect of a removal provision is not ‘ripe’ until that provision is

actually used” and observing that provision at issue “creates the here-and-now

subservience to another branch that raises separation-of-powers problems” (internal

quotation marks omitted)).

6

Indeed, in holding that judicial review—and not necessarily judicial relief—was

warranted there lest it “come too late to be meaningful,” the Supreme Court 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 before appealing, even when

doing so subjects them to ‘significant burdens’” is a reality that “will remain so,” and thus

14

In Collins, the Supreme Court also distinguished appointments challenges

from removal challenges, observing that while a “constitutional defect in the

statutorily prescribed method of [an official’s] appointment” may render his

actions void, there is “no reason to regard any of the actions taken by [a properly

appointed officer] . . . as void” by sole virtue of that officer’s purportedly

unconstitutional protection from at-will removal. 594 U.S. at 257–58. In short,

unconstitutional removal protection may diminish a person’s accountability for

his actions, but not necessarily his authority to take such actions. Thus, our court

has held that to prove redressable injury from unconstitutional removal

protections, a party must show “that the agency action would not have been taken

but for the President’s inability to remove” the relevant person. Cf. Consumer Fin.

Prot. Bureau v. L. Offs. of Crystal Moroney, P.C. (“CFPB v. Crystal Moroney”), 63 F.4th

174, 179–80 (2d Cir. 2023) (emphasis in original) (noting that Collins left open

possibility of relief if party could show that “unconstitutional provision . . .

inflict[ed] compensable harm” on petitioner (alteration in original) (quoting

Collins, 594 U.S. at 259)), cert. denied, 144 S. Ct. 2579 (2024). 7

generally does not support interlocutory review. See id. at 192–93. The Supreme Court

has thus consistently explained that finding a “here-and-now injury” cognizable for

jurisdictional purposes is not the same as finding likely irreparable harm warranting

interim relief.

7

A Fifth Circuit panel majority recently concluded otherwise. See Space Expl. Techs. Corp.

v. NLRB, 151 F.4th 761, 775–80 (5th Cir. 2025) (upholding preliminary injunction enjoining

NLRB proceedings, finding plaintiffs to have demonstrated likelihood of (1) success on

merits of removal challenges to both ALJs and NLRB members; and (2) irreparable harm,

observing as to latter that Axon Enterprise’s “reasoning [with respect to jurisdiction] fits

irreparable harm hand-in-glove: once an unconstitutional proceeding begins, the damage

is done”). But see id. at 781 (Wiener, J., concurring in part and dissenting in part) (faulting

majority for misinterpreting Supreme Court precedent by lowering employer’s burden

so as not to require them “to allege additional causal harm that they would face if

15

These distinctions between appointments and removal challenges, and

between the allegations of injury sufficient to confer standing (Seila Law) or to

justify collateral review (Axon Enterprises) and the showing of harm necessary to

secure relief (Collins), apply with particular force to preliminary injunctive relief

where the movant’s burden is not only to allege plausibly that the charged conduct

caused injury, but also to make a showing of “likely . . . irreparable harm.” Winter

v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 21 (2008); see generally Faiveley Transp.

Malmo AB v. Wabtec Corp., 559 F.3d at 115–16, 118–19 (finding plaintiff satisfied

“irreducible constitutional minimum” injury-in-fact requirement for standing but

failed to show that injury “cannot be remedied if a court waits until the end of trial

to resolve the harm” as required for preliminary injunction (quoting Grand River

Enter. Six Nations, Ltd. v. Pryor, 481 F.3d 60, 66 (2d Cir. 2007))). Care One failed to

carry that burden here.

a. Appointments Challenge

To begin with Care One’s appointments challenge, we note at the outset that

the NLRB concedes the invalidity of ALJ Chu’s initial appointment and, therefore,

of his subsequent actions—at least prior to ratification by a lawfully constituted

Board. Even assuming that such an improper initial appointment—without

regard to subsequent ratification—allowed Care One to demonstrate a likelihood

of irreparable harm from any continuation of proceedings before ALJ Chu, Care

One is not entitled to a preliminary injunction because it faces no such risk. Care

subjected to proceedings before the NLRB board members” and noting that holding

creates split “between our circuit and the Tenth, Sixth, and Second Circuits”). The facts

in this case are distinguishable from those in Space Exploration Technologies, which

provided no indication that ALJ proceedings had terminated or that any ALJ had retired.

See id. at 768–70, 780. In any event, this panel—and the parties in this case—remain bound

by the rule expressed in CFPB v. Crystal Moroney until that decision is overturned by the

Supreme Court or rejected en banc by this court. See, e.g., United States v. Afriyie, 27 F.4th

161, 168 (2d Cir. 2022).

16

One is not now, and will never again be, before 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 full Board, which transferred Care One’s case to itself by pro forma order

dated May 29, 2024. Care One does not dispute that, as of that date, all Board

members were lawfully appointed. Rather, Care One submits that ALJ Chu’s

improper appointment irreparably taints even subsequent proceedings before a

lawfully constituted Board so as to warrant a preliminary injunction halting those

proceedings. In support, it cites Lucia v. SEC, wherein the Supreme Court stated

that that “the appropriate remedy for an adjudication tainted with an

appointments violation is a new hearing before a properly appointed official.” 585

U.S. 237, 251 (2018) (internal quotation marks omitted).

Lucia, however, identified such a remedy as appropriate in circumstances

quite different from those presented here. In Lucia, not only had the improperly

appointed ALJ ruled on the merits of the case, but also all subsequent SEC

administrative proceedings had concluded. In that posture, the Court identified a

new hearing by a properly appointed official as the appropriate remedy. See id. at

251 & n.5. In so ruling, the Court observed that the “new hearing” could be

conducted by either “another ALJ” or “the Commission itself.” See id. at 251–52.

The latter remedy is already effectively available to Care One because, by contrast

to the completed SEC proceedings in Lucia, NLRB proceedings against Care One

are presently pending before the Board.

Moreover, Care One cannot show that proceedings before the Board will

likely be tainted by ALJ Chu’s wrongful appointment because the Board is

statutorily authorized to consider all questions of fact and law de novo, and to take

further testimony and to hear further arguments as necessary to reach its own final

decision. See 29 U.S.C. § 160(c); 29 C.F.R. § 102.48. Care One does not assert, and

17

nothing in the record suggests, that the Board will not here exercise its de novo

review authority. 8

Care One has already taken the opportunity to raise exceptions to ALJ Chu’s

factual findings and conclusions of law before the Board. See Respondents’

Exceptions to the Administrative Law Judge’s Decision and Order at 2–3,

Healthbridge Mgmt. LLC et al., No. 34-CA-070823 (NLRB filed Aug. 23, 2024).

Indeed, Care One has taken exception to the entire record as a matter of law,

relying on the very Appointments Clause argument raised here. Id. Thus afforded

de novo review before the Board, Care One cannot show a likelihood of irreparable

harm from ALJ Chu’s improper appointment so as to warrant a preliminary

injunction halting pending Board proceedings.

b. Removal Challenge

In its challenge to the dual for-cause protections from removal afforded

ALJs, Care One again complains of “being subjected to unconstitutional agency

authority.” Appellants’ Br. at 60 (internal quotation marks omitted). But as

already explained, unconstitutional removal protections primarily implicate

accountability for, not authority to take, official actions. See supra at 14–15

(discussing Collins v. Yellen, 594 U.S. at 258 n.24; CFPB v. Crystal Moroney, 63 F.4th

at 179–80). Thus, to satisfy the irreparable harm requirement for injunctive relief

consistent with controlling precedent in this circuit, a party complaining of

unconstitutional removal protections must demonstrate—at a minimum—a

likelihood that it is or imminently will be subject to actions that would not have

been taken but for the President’s inability to remove the protected persons. See

CFPB v. Crystal Moroney, 63 F.4th at 179–80. Because Care One has made no such

8

In any event, any error committed by the Board at this juncture would be reviewable

and redressable by this court on direct appeal, mitigating the irreparable element of the

asserted harm and, thereby, rendering a preliminary injunction unnecessary. See 29

U.S.C. § 160(f).

18

showing here, it fails to establish that ALJ removal protections will cause it

irreparable harm unless pending Board proceedings are enjoined.

2. Care One Is Not Entitled to a Presumption of Irreparable

Harm

Care One argues that its appointments and removal challenges effectively

assert “violation[s] of constitutional rights” sufficient to trigger a “presumption of

irreparable injury.” Agudath Israel of Am. v. Cuomo, 983 F.3d at 636 (internal

quotation marks omitted) (addressing Free Exercise Clause challenge to COVID-

19 restrictions). It is mistaken.

Constitutional violations—particularly First Amendment violations—have

been presumed irreparable when, by their nature, their injury cannot be undone.

See New York Progress & Prot. PAC v. Walsh, 733 F.3d 483, 486 (2d Cir. 2013)

(recognizing irreparable harm where plaintiff “seeks to engage in political speech”

because “a delay of even a day or two may be intolerable” (internal quotation

marks omitted)); see also Reyes v. City of New York, 141 F.4th 55, 68 (2d Cir. 2025)

(holding that inability to film in police station may result in “actual, imminent, and

irretrievable loss” of First Amendment rights). That conclusion, however, does

not obtain universally. See National Ass’n for Gun Rts. v. Lamont, 153 F.4th 213, 248

(2d Cir. 2025) (noting that “we have presumed irreparable harm for alleged

deprivations of certain constitutional rights,” namely in First, Fourth, and Eighth

Amendment contexts, but rejecting argument that “violation of constitutional

rights per se constitutes irreparable injury” and, thus, declining to decide whether

Second Amendment infringement presumptively causes irreparable harm).

We are not persuaded that a presumption of irreparable harm necessarily

attaches to all separation-of-powers claims so as to warrant injunctive relief. As

both the Supreme Court and our own court have recognized, “the nature of the . . .

remedy” available to claimants “is to be determined by the nature and scope of

the constitutional violation” that they have sustained. United States v. City of

19

Yonkers, 197 F.3d 41, 55 (2d Cir. 1999) (quoting Milliken v. Bradley, 433 U.S. 267, 280

(1977)); accord CFPB v. Crystal Moroney, 63 F.4th at 180 (collecting cases so

concluding in identifying “but-for causation” requirement). That reasoning

applies whether the relief sought is final or preliminary.

The removal violations at issue do not warrant a presumption of irreparable

harm here because, as already explained, such violations do not cause cognizable

harm in all instances. See supra at 14–15, 18–19. Rather, removal violations cause

cognizable separation-of-powers injury only when the person afforded removal

protection engages in action that he would not have taken “but for the President’s

inability to remove” him. CFPB v. Crystal Moroney, 63 F.4th at 180 (emphasis in

original); see Collins v. Yellen, 594 U.S. at 258–60. Again, Care One does not claim

that ALJ Chu took any actions in its proceedings that he would not have taken but

for his removal protections. Now that ALJ Chu has retired and Care One’s

proceedings are before the full Board, it is not at risk of any such injury from ALJ

Chu. In these circumstances, even if Care One were successfully to demonstrate

the unconstitutionality of the challenged dual for-cause removal protection

afforded ALJs, it would not have sustained irreparable harm. Instead, the only

relief to which it would be entitled would be a declaratory judgment severing the

unconstitutional removal protections from the broader statutory scheme. See Free

Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477, 508 (2010) (stating that

“unconstitutional tenure provisions are severable from the remainder of the

statute”).

As for appointments violations, they cause injury to persons compelled to

proceed before a challenged appointee. But there is no risk of such injury, much

less presumptive irreparable injury, to persons such as Care One because its NLRB

proceedings are now before the lawfully appointed Board, which is empowered

to conduct de novo review of all questions of law and fact. See supra section II.D.1.a.

20

Thus, Care One’s appointments and removal challenges warrant no

presumption of irreparable injury.

CONCLUSION

To summarize, Care One has failed to demonstrate the likelihood of

irreparable harm required to warrant a preliminary injunction halting proceedings

pending against it before the NLRB. The district court having correctly denied

such an injunction, its order is hereby AFFIRMED.

21

MYRNA PÉREZ, Circuit Judge, concurring:

While I join fully in the well-reasoned majority opinion, I write separately

to explain that in my view, Plaintiffs are also unlikely to succeed on the merits,

and we should reject the preliminary injunction on that basis.

First, the dual-layer removal protections enjoyed by the NLRB’s ALJs do not

offend the separation of powers or interfere with the President’s exercise of his

constitutional duties. Unlike the board members at issue in Free Enterprise Fund v.

Public Co. Accounting Oversight Board, 561 U.S. 477 (2010), the NLRB’s ALJs do not

exercise significant policymaking or enforcement authority, and the NLRB’s Board

members are fully empowered to superintend the agency’s ALJs and to disregard

their recommendations. And second, the appointment of the ALJ who presided

over Plaintiffs’ case, while initially invalid, was properly ratified, curing any

ongoing constitutional injury.

I. Reaching the Merits to Decide a Preliminary Injunction

While the majority opinion correctly notes that we have said irreparable

harm is the most important prerequisite when considering a preliminary

injunction, see Maj. Op. at 11, we have also often first considered the merits of the

claims. See, e.g., Forest City Daly Hous., Inc. v. Town of North Hempstead, 175 F.3d

1

144, 153 (2d Cir. 1999) (“Because a likelihood of success has not been shown here,

however, we need not decide whether a presumption of irreparable harm would

otherwise apply. . . . [A]ny irreparable harm plaintiffs might suffer in this case

does not warrant a preliminary injunction in the absence of a showing of (at least)

a likelihood of success.”). I find it particularly appropriate to address the merits

where, as here, Plaintiffs’ entire theory of irreparable harm is wrapped up in the

very theories of constitutional violations they assert. See Appellant’s Br. at 60–62;

Walden v. Kosinski, 153 F.4th 118, 141 (2d Cir. 2025) (affirming denial of preliminary

injunction on likelihood of merits and holding that because movant “fails to

demonstrate a likelihood of success on the merits of his claim that the Naming

Provisions violate his First Amendment rights, he cannot establish irreparable

harm by this route,” and movant “makes no other argument in support of a

finding of irreparable injury”); Ozturk v. Hyde, 136 F.4th 382, 402 (2d Cir. 2025)

(concluding there was no sufficient showing of irreparable harm where “much of

the government’s irreparable harm argument seems to rely upon its less-than-

convincing merits arguments”); see also Leachco, Inc. v. Consumer Prod. Safety

Comm’n, 103 F.4th 748, 759–60 (10th Cir. 2024) (rejecting “here-and-now injury” of

being subject to unconstitutional proceedings and reaching the merits to resolve

2

the irreparable harm prong “because Leachco’s irreparable harm argument is

predicated entirely on its ability to prevail on its constitutional arguments”).

Though I recognize the temptation to avoid tackling the merits in this case,

it is important not to conflate a trend of animated litigation with law that remains

settled. The majority opinion is correct in pointing out that removal protections

are currently being litigated throughout federal courts, and that the Supreme

Court has sent mixed signals via its interim orders. See Maj. Op. at 11–13; see also

infra Section II.A.3. However, this case does not involve a challenge to the removal

protections of top-level agency officials such as the NLRB’s Board members

themselves. Rather, it is a narrower challenge to the removal protections of the

NLRB’s ALJs, and those protections stand on firmer ground given existing

Supreme Court precedent, even if one accepts that the same protections for top-

level officials are recently being called into question. In any event,

It is not within our purview to anticipate whether the Supreme Court

may one day overrule its existing precedent. “If a precedent of [the

Supreme] Court has direct application in a case, yet appears to rest on

reasons rejected in some other line of decisions, the Court of Appeals

should follow the case which directly controls, leaving to [the

Supreme] Court the prerogative of overruling its own decisions.”

United States v. Santiago, 268 F.3d 151, 155 n.6 (2d Cir. 2001) (Sotomayor, J.)

(alterations in original) (quoting Agostini v. Felton, 521 U.S. 203, 237 (1997)). Only

3

if—and until—a century of settled law is upended by the Supreme Court, our task

in deciding Plaintiffs’ merits arguments remains straightforward. We can and

should reject them for what they are: without merit.

II. Likelihood of Success on the Merits

Turning to the merits of Plaintiffs’ claims, I conclude that they are unlikely

to succeed. At the outset, I note that the District Court misapplied the heightened

“clear” or “substantial” likelihood of success standard. 1 Plaintiffs’ preliminary

injunction arises in the standard prohibitory posture: it is undisputed that

Plaintiffs moved for a preliminary injunction as NLRB proceedings were set to

resume after having been stayed, and that Plaintiffs sought to enjoin those

proceedings from starting up again. See J. App’x at 50–51. Rather than request

some positive act by the government, Plaintiffs’ injunction thus sought to maintain

the status quo. See N. American Soccer League, LLC v. U.S. Soccer Fed’n, Inc., 883 F.3d

32, 37 (2d Cir. 2018). The District Court instead relied on the ultimate relief sought

1 We have said that “when, as here, the preliminary injunction will affect government action taken

in the public interest pursuant to a statutory or regulatory scheme, it should be granted only if the moving

party meets the more rigorous [clear or substantial] likelihood-of-success standard.” Giambalvo v. Suffolk

County, 155 F.4th 163, 174 (2d Cir. 2025) (quoting Cent. Rabbinical Cong. of the U.S. & Can. v. N.Y.C. Dep’t of

Health & Mental Hygiene, 763 F.3d 183, 192 (2d Cir. 2014)). And whether government action will be affected

refers to whether “the injunction sought ‘will alter, rather than maintain, the status quo’—i.e., is properly

characterized as a ‘mandatory’ rather than ‘prohibitory’ injunction.” Jolly v. Coughlin, 76 F.3d 468, 473 (2d

Cir. 1996) (quoting Tom Doherty Assocs., Inc. v. Saban Ent., Inc., 60 F.3d 27, 33–34 (2d Cir. 1995)).

4

in this action—to “render null and void all that has transpired during the hearing

before ALJ Chu, and require the NLRB to either start over or abandon the

enforcement action”—to justify its application of the heightened standard. See J.

App’x at 266. The District Court abused its discretion in doing so.

A. Removal Protections

The Supreme Court has held that, in general, statutes protecting executive

officers from at-will removal by the President are unconstitutional. 2 See Seila L.

LLC v. CFPB, 591 U.S. 197, 215 (2020). But there are two significant exceptions: “for

inferior officers with limited duties and no policymaking or administrative

authority,” id. at 218; and “for multimember bodies with ‘quasi-judicial’ or ‘quasi-

legislative’ functions,” id. at 217.

On their face, the removal protections at issue here—the good-cause

protection for the NLRB’s ALJs, combined with the good-cause protection for

members of the MSPB—fall comfortably within these exceptions. The NLRB’s

ALJs are (at most) inferior officers who carry out exclusively adjudicatory

2 For present purposes, “officers” are distinct from “employees.” By definition, in contrast to

employees, officers exercise “significant authority” under federal law and are appointed directly by the

President, the head of a department, or a court of law. Lucia v. SEC, 585 U.S. 237, 245 (2018). The

constitutionality of removal protections for federal employees is not in question.

5

functions. 3 And the MSPB—along with the NLRB’s Board—are multi-member

bodies with exclusively quasi-judicial and quasi-legislative functions. Plaintiffs

do not argue otherwise.

It is the combination of these removal protections—the so-called “dual

layer”—that Plaintiffs argue constitutes an exception to these exceptions. For this

argument they rely on Free Enterprise Fund v. Public Co. Accounting Oversight Board,

561 U.S. 477 (2010), in which the Supreme Court invalidated the good-cause

removal protections afforded members of the Public Company Accounting

Oversight Board (“PCAOB”), an independent agency within the SEC responsible

for regulating the accounting industry. The PCAOB’s members could only be

removed for good cause by the SEC, whose own members were removable by the

President only for good cause. Id. at 486–87. Given the PCAOB’s status as “the

regulator of first resort and the primary law enforcement authority for a vital

sector of our economy,” id. at 508, and the SEC’s inability to review and supersede

its investigatory decisions, see id. at 504, the Court held that two layers of good-

cause removal protections “contravene[d] the President’s ‘constitutional

3 The parties do not dispute that, following Lucia, the NLRB’s ALJs are inferior officers. See Lucia,

585 U.S. at 249 (holding that the SEC’s ALJs are inferior officers). I therefore assume that the NLRB’s ALJs

are inferior officers rather than employees, and refer to them accordingly.

6

obligation to ensure the faithful execution of the laws,’” id. at 484 (quoting Morrison

v. Olson, 487 U.S. 654, 693 (1988)).

The NLRB’s ALJs similarly enjoy two layers of good-cause insulation from

removal. The ALJs themselves enjoy removal protection, as do members of the

MSPB who decide whether good cause has been shown to remove an ALJ. But the

NLRB’s ALJs are distinguishable from PCAOB members in important respects—

most notably, in the nature and extent of the power they wield. Indeed, the Court

in Free Enterprise Fund took care to note that its holding did not apply to ALJs

altogether, many of whom—including the NLRB’s—“perform adjudicative rather

than enforcement or policymaking functions or possess purely recommendatory

powers.” Id. at 507 n.10 (citations omitted). Unlike PCAOB members, the NLRB’s

ALJs are not empowered to “determine[] the policy and enforce[] the laws of the

United States.” Id. at 484. And, unlike the investigatory decisions of PCAOB

members, each decision rendered by an NLRB ALJ is subject to direct review by

principal officers (the Board), who can disregard or overrule them at will. 4

4 This includes each of an ALJ’s procedural and evidentiary rulings, which the Board can review

either on an interlocutory appeal or during its plenary review of the ALJ’s decision. See 29 C.F.R. § 102.26

(2026).

7

While the Supreme Court has not addressed the question directly, I find that

these distinctions are dispositive. My conclusion is compelled both by the

constitutional principles underlying the removal power—as informed by the

Supreme Court’s precedents—and the historical pedigree of the removal

protections at issue here. That conclusion is in accord with the vast majority of

federal appellate court decisions on the issue. I address each in turn.

1. Constitutional Principles

To invalidate a statute insulating an inferior officer from removal, we must

conclude that the statute “interfere[s] impermissibly with [the President’s]

constitutional obligation to ensure the faithful execution of the laws.” Morrison,

487 U.S. at 693. The faithful-execution requirement is a weighty obligation. It

appears twice in Article II: as an affirmative duty to “take Care that the Laws be

faithfully executed,” U.S. Const. art. II, § 3, and as part of the President’s oath of

office, in which he must “solemnly swear (or affirm)” to “faithfully execute the

Office of President of the United States,” id. § 1, cl. 8. This requirement derives

from the “fiduciary-like” duties of officers in England and the American colonies.

Andrew Kent, Ethan J. Leib & Jed Handelsman Shugerman, Faithful Execution and

Article II, 132 Harv. L. Rev. 2111, 2180 (2019).

8

By 1789, “faithful execution” had come to mean, in particular, that officers

could not use their powers for personal gain, could not act outside their legal

authority, and had “an affirmative duty to act diligently, honestly, skillfully, and

impartially in the best interest of the public.” Id. at 2141. Article II imposes this

obligation on the President and requires that he enforce it in his subordinates.

Several constitutional mechanisms help to enforce this obligation, one of

which is the possibility of being removed from office. At the highest level, the

President fears removal by the electorate. 5 Beneath him, executive officers fear

removal by their superiors, including, for some, by the President. In theory, an

officer who fears removal will try to perform his job in a way that avoids it. 6

Ideally that means executing the law faithfully, but sometimes it may mean the

opposite.

The President’s removal power, and statutory limits on that power, balance

two opposing risks. On one side is the risk of the maverick officer whose acts put

5 This fear became less potent with the ratification of the Twenty-Second Amendment, which limited

a President to two terms in office. See Peter M. Shane, Political Accountability in a System of Checks and

Balances: The Case of Presidential Review of Rulemaking, 48 Ark. L. Rev. 161, 199–200 (1995). The other means

of checking the President’s power—such as congressional oversight and judicial review—arguably became

more important as a result.

6 For convenience, the pronouns we use borrow their gender from the current President and ALJ

Chu.

9

idiosyncratic preferences or a personal agenda above the public good. That person

is tamed by the possibility of at-will removal. On the other side is the sycophantic

officer who abuses his discretion in order to help superior officers, including the

President, avoid removal themselves—for example, by favoring political allies,

covering up failures, or obfuscating the negative effects of certain policies. This

risk is mitigated by a degree of insulation from politically motivated removal.

These caricatures, while oversimplified, usefully illustrate when removal

protections might “interfere impermissibly with” the President’s faithful-

execution obligation, Morrison, 487 U.S. at 693, and when they might serve it.

i. The Maverick

An officer who serves his own partial or idiosyncratic preferences at the cost

of the public good does not faithfully execute the law entrusted to him. This

concern animated the Supreme Court’s decisions in Free Enterprise Fund and Seila

Law, both of which involved officers wielding substantial policy power who could

be removed only for good cause and who were empowered to make decisions that

could not individually be overruled. In Free Enterprise Fund, it was members of

the PCAOB, who could independently initiate investigations and enforcement

proceedings. See Free Enter. Fund, 561 U.S. at 485, 504. In Seila Law, it was the

10

Director of the Consumer Financial Protection Bureau, who was empowered to

“unilaterally, without meaningful supervision, issue final regulations, oversee

adjudications, set enforcement priorities, initiate prosecutions, and determine

what penalties to impose on private parties.” Seila Law, 591 U.S. at 225.

An officer empowered with sufficient discretion—that is, who is entrusted

with judgment as to what the public good requires, and whose decisions on that

score are not reviewed by superiors or checked by peers—may fail the faithful-

execution requirement without supplying good cause for removal. This is because

a bad policy choice will usually not constitute inefficiency, neglect, or malfeasance

in office, which is typically what constitutes good cause in removal-protection

statutes. See, e.g., 5 U.S.C. § 1202(d). So the threat of removal tames such would-

be mavericks only when removal is at-will; when the democratically accountable

President can fire (or direct the firing of) the officer over policy disagreements,

then the officer is more likely to avoid misguided policies that offend the public.

A statute prohibiting at-will removal for such officers may therefore interfere

unconstitutionally with the President’s duty of faithful execution.

11

ii. The Sycophant

The opposite concern is the officer who, fearing removal, abuses his position

to serve the personal interests of his superiors—for example, by favoring the

President’s political allies, punishing dissent, or keeping the administration’s

failures from public view. He may also neglect or contradict politically

unfashionable legal mandates to curry favor with his superiors. Such actions

inhibit rather than serve the faithful execution of the law. See Kent, Leib &

Shugerman, supra, at 2141 (noting that Article II’s faithful-execution requirement

was understood at the framing to prohibit ultra vires acts and to require acting

“diligently, honestly, . . . and impartially in the best interest of the public”). The

fear of at-will removal—removal for any reason, including an unwillingness to

abuse one’s office or exceed one’s lawful powers—exacerbates this risk.

This concern animated the Supreme Court’s decision in Humphrey’s Executor

v. United States, 295 U.S. 602 (1935), in which the Court upheld good-cause removal

protections for members of the FTC. Describing the FTC as an adjunct of the

legislative and judicial branches, it held that the “coercive influence” of the

President’s asserted at-will removal power would “threaten[]” the FTC’s

necessary independence. Id. at 630. Similarly, in Wiener v. United States, 357 U.S.

12

349 (1958), the Court upheld a fixed term for members of the temporary War

Claims Commission, whose job was to adjudicate claims for injuries suffered in

World War II. The Court assumed, “as one must,” that Congress did not intend

to allow the President to influence the outcomes of particular adjudications, and

concluded that “to have hang over the Commission the Damocles’ sword of

removal by the President” would contradict that intention. Id. at 356. The

Constitution did not require disregarding Congress’s judgment on that score. Id.

Indeed, the Supreme Court recognized long ago that the power of removal is

“incident to the power of appointment,” and thus when Congress, pursuant to

Article II, “vests the appointment of inferior officers in the heads of Departments

it may limit and restrict the power of removal as it deems best for the public

interest.” United States v. Perkins, 116 U.S. 483, 485 (1886).

The Court later clarified in Morrison that the quasi-legislative or quasi-

judicial nature of an officer’s functions are not dispositive, but might nonetheless

characterize offices for which good-cause removal protections might legitimately

be “necessary to the proper functioning of the agency or official.” Morrison, 487

U.S. at 691 n.30. “It is not difficult to imagine situations in which Congress might

desire that an official performing ‘quasi-judicial’ functions, for example, would be

13

free of executive or political control.” Id. Put differently, the risk of sycophancy is

mitigated by protecting an officer from removal except for good cause, and,

depending on the nature of the officer’s power, Congress may permissibly decide

that such protections are “necessary to” the faithful execution of the law. Id.

iii. The NLRB’s ALJs

The precedents animated by these competing risks reflect a core

proposition: that the constitutionality of statutory removal protections depends on

the nature and extent of the power exercised by the protected officer. Officers who

wield significant power, and who wield that power through decisions that are not

reviewable by superior officers or checked by peers, will pose greater risks as

mavericks compared to other officers, and Article II may require that the President

be able to effectuate their removal at will. See, e.g., Free Enter. Fund, 561 U.S. at 508;

Seila Law, 591 U.S. at 225. But officers whose roles are chiefly recommendatory—

who do not set policy, and whose decisions are individually reviewable by

superiors before they are implemented—generally do not pose such a risk. See

Free Enter. Fund, 561 U.S. at 507 n.10 (excepting ALJs from its holding for that

reason). The greater concern is that these officers will unfaithfully execute the laws

entrusted to them if left unprotected from personally or politically motivated

14

removal. For them, good-cause removal protections generally will not “interfere

impermissibly with” the President’s faithful-execution obligation. Morrison, 487

U.S. at 693. Rather, such protections may serve that obligation—or, at least,

Congress may logically and permissibly decide that they do. See Perkins, 116 U.S.

at 485 (“The constitutional authority in Congress to thus vest the appointment

implies authority to limit, restrict, and regulate the removal by such laws as

Congress may enact in relation to the officers so appointed.”).

The NLRB’s ALJs fall squarely into the latter category. They cannot

influence a change in policy, or even adjudicate an enforcement action, without

the Board’s acquiescence. As a result, the universe of actions that could frustrate

the faithful execution of the law, but which would not constitute good cause for

removal, is minimal. But an ALJ who fears at-will removal, and thus distorts his

factual findings to benefit the President’s political allies, for example, executes the

law unfaithfully. As the Supreme Court’s cases teach us, this risk is particularly

acute with respect to adjudicatory officers, whose objectivity and fairness are

crucial to their quasi-judicial functions. See, e.g., Morrison, 487 U.S. at 691 n.30;

Wiener, 357 U.S. at 356.

15

The same risk balancing favors permitting removal protections for members

of the MSPB, who are responsible for adjudicating whether good cause exists for

an ALJ’s removal. The efficacy of a good-cause removal protection depends in

large part on an officer’s confidence that it will be fairly and impartially enforced.

If an ALJ, for example, fears political reprisal by a non-insulated NLRB and MSPB

under the guise of “good cause,” then the protection will be toothless. A non-

insulated MSPB might also be coerced by the President to prevent the removal of

a sycophantic ALJ when good cause does exist. In either case, the faithful

execution of the laws is inhibited, not enhanced. Congress was within its power

to address this risk by insulating both the NLRB’s ALJs and the MSPB’s members

from politically motivated removal.

2. History and Tradition

I next consider whether the removal protections at issue here have a

“foothold in history or tradition,” supporting their validity, or whether they are

instead a constitutionally suspect “innovation.” See Seila Law, 591 U.S. at 222.

Unlike the novel agency structures at issue in Seila Law and Free Enterprise Fund,

the statutes here have a long history and apply broadly throughout the federal

government.

16

So-called dual-layered removal protections have existed in certain federal

agencies since at least the 1880s. In 1883, the Pendleton Act prohibited the removal

of civil servants for “refusing” “to contribute to any political fund, or to render

any political service.” Pendleton Act, Pub. L No. 47-27, § 2, 22 Stat. 403, 404 (1883).

This was part of Congress’s attempt to reform the spoils system, which had

rendered the federal civil service corrupt and ineffective. 7 These removal

protections applied as well to agencies whose heads were themselves insulated

from removal. This first included the Interstate Commerce Commission (“ICC”),

created in 1887, whose members could only be removed by the President for good

cause. See Interstate Commerce Act, Pub. L. No. 49-104, § 11, 24 Stat. 379, 383

(1887) (allowing the President to remove a commissioner only “for inefficiency,

neglect of duty, or malfeasance in office”). The ICC was the archetype for what

would become an alphabet soup of multi-member commissions and boards with

similar removal protections—among them the NLRB, created in 1935. See generally

Free Enter. Fund, 561 U.S. at 541 (Breyer, J., dissenting); Michael Asimow, The

7 Under the spoils system, federal jobs were awarded based on political support, and officeholders

were expected to make political donations and, often, to use their offices to benefit the President’s party.

See Jerry L. Mashaw, Creating the Administrative Constitution 176 (2012). Performance in office—faithful

execution of the law—was secondary.

The Pendleton Act also revived the Civil Service Commission, the predecessor to the MSPB, which

had lain dormant since its creation in 1871.

17

Administrative Judiciary: 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 examiners—the predecessors of modern ALJs—who

themselves enjoyed removal protection under the Pendleton Act and its

subsequent expansions. See generally Michael Bogdanow & Thomas Lanphear,

History of the Merit Systems Protection Board, 4 J. Fed. Cir. Hist. Soc’y 109, 110–11

(2010) (describing the broadening removal protections afforded civil servants over

the next several decades). Removal protections specific to hearing examiners were

formalized in 1946 with the enactment of the Administrative Procedure Act

(“APA”), which made examiners “removable by the agency in which they are

employed only for good cause established and determined by the Civil Service

Commission [the predecessor to the MSPB].” APA, Pub. L. No. 79-404, § 11, 60

Stat. 237, 244 (1946). The APA also clarified the nature and extent of examiners’

powers, which were limited to creating factual records and recommending

dispositions to their agency heads, who were free to disregard them. 8 See id. § 8(a),

8 This balance—between hearing examiners’ removal protections and the extent of their power—

represented a compromise between proponents of an expanded administrative state, who supported

vesting agencies with robust adjudicatory powers, and skeptics of the New Deal, who worried about

concentrating too much power in the executive branch. See Asimow, supra, at 160–64.

18

60 Stat. at 242. Both provisions remain substantively unchanged to this day. See 5

U.S.C. §§ 557(b), 7521(a).

Removal protections for the adjudicators of “good cause”—currently the

MSPB—were put in place by the Civil Service Reform Act of 1978. Pub. L. No. 95-

454, § 202(a), 92 Stat. 1111, 1122. The Act, which created the MSPB to take over the

adjudicative functions of the Civil Service Commission, responded to widespread

concerns that the Commission had been improperly influenced by political

pressure. See Bogdanow & Lanphear, supra, at 112–13, 115; William V. Luneburg,

The Federal Personnel Complaint, Appeal, and Grievance Systems, 78 Ky. L.J. 1, 18 n.84

(1989). Those removal protections have remained in place for the nearly half-

century since.

In sum, the long history of the removal protections at issue here—including

the dual layers at the center of Plaintiffs’ challenge—distinguish them from the

statutory schemes in Seila Law and Free Enterprise Fund and support their validity.

3. State of Play

Even though my view is that the law remains settled and we need not read

tea leaves to decide this case, I acknowledge that ongoing legal challenges to

removal protections of officers appointed by the President have not yielded

19

uniform results, as I briefly address below. But to the extent the law is in flux, that

flux would be beside the point here. The invalidation of removal protections for

members of the MSPB and the NLRB’s Board would do nothing more than moot

Plaintiffs’ removal protections claim regarding the NLRB’s ALJs, which is

premised on a dual layer of protection that would no longer exist.

i. The Supreme Court

Some indications suggest that removal protections for top-level agency

officials appointed by the President—here, the NLRB’s Board and members of the

MSPB—may not be long for this world. Although an interlocutory ruling, the

Supreme Court recently stayed a court order preliminarily enjoining the

President’s no-cause removal of members of both bodies. See Trump v. Wilcox, 145

S. Ct. 1415 (2025). It explained that “[b]ecause the Constitution vests the executive

power in the President, he may remove without cause executive officers who

exercise that power on his behalf, subject to narrow exceptions recognized by our

precedents,” and thus “[t]he stay reflects our judgment that the Government is

likely to show that both the NLRB and MSPB exercise considerable executive

power.” Id. at 1416 (citations omitted). The Supreme Court nevertheless made

clear that “we do not ultimately decide in this posture whether the NLRB or MSPB

20

falls within such a recognized exception.” Id.; see also id. at 1417–19 (Kagan, J.,

dissenting) (explaining that Humphrey’s Executor “remains good law, and it

forecloses both the President’s firings and the Court’s decision to award

emergency relief,” and that “granting the President’s request for a stay is nothing

short of extraordinary” because “the order allows the President to overrule

Humphrey’s by fiat, again pending our eventual review”).

The Supreme Court in subsequent interlocutory orders has continued to

allow the President to remove statutorily protected officers without cause. See

Trump v. Boyle, 145 S. Ct. 2653, 2654 (2025) (“[T]he Consumer Product Safety

Commission exercises executive power in a similar manner as the National Labor

Relations Board, and the case does not otherwise differ from Wilcox in any

pertinent respect.”); Trump v. Slaughter, 146 S. Ct. 18, 18 (2025) (granting stay of

order enjoining no-cause removal of FTC commissioner without explanation). But

it recently declined to disturb an order enjoining the President from removing a

member of the Federal Reserve’s Board of Governors. See Trump v. Cook, 146 S. Ct.

79 (2025). Perhaps this was because of the Supreme Court’s recognition in Wilcox

that “[t]he Federal Reserve is a uniquely structured, quasi-private entity that

follows in the distinct historical tradition of the First and Second Banks of the

21

United States.” 145 S. Ct. at 1417. But see id. at 1421 (Kagan, J., dissenting)

(observing that “today’s order poses a puzzle” because “the Federal Reserve’s

independence rests on the same constitutional and analytic foundations as that of

the NLRB, MSPB, FTC, FCC, and so on—which is to say it rests largely on

Humphrey’s”).

The Supreme Court’s explicit reservation of the question notwithstanding,

Wilcox’s reasoning (and its progeny of interlocutory rulings, to the extent they can

be characterized as such) has little bearing on this case. Wilcox continued to

recognize the “narrow exceptions recognized by our precedents,” id. at 1416 (citing

Seila Law, 591 U. S. at 215–218), and premised its ruling on the determination that

the NLRB and MSPB exercise “considerable executive power,” id. As explained

above, the NLRB’s ALJs fit comfortably within those narrow exceptions precisely

because they are inferior officers who carry out exclusively adjudicatory functions,

as opposed to wielding executive power in any significant manner. The Supreme

Court’s interlocutory decisions do not support a wholesale rejection of removal

22

protections, let alone undermine the theoretical underpinnings of such

protections. 9

ii. Our Sister Circuits

Of the federal circuit courts to squarely confront removal protections for

ALJs, the Ninth (twice), Tenth, and Eleventh have explicitly held that such

protections do not violate Article II, for reasons similar to the foregoing. See Rabadi

v. U.S. Drug Enf’t Admin., 122 F.4th 371, 375–76 (9th Cir. 2024) (upholding dual-

layer DEA ALJ removal protections because “DEA ALJs perform purely

adjudicatory functions,” because “Congress does not mandate that the DEA use

ALJs as presiding officers for administrative hearings,” and because their

9 Recent federal circuit court decisions have applied Wilcox’s reasoning in challenges to removal

protections for the NLRB’s Board members. See Space Expl. Techs. Corp. v. NLRB, 151 F.4th 761, 776 (5th Cir.

2025) (affirming grant of preliminary injunction halting NLRB proceedings due to likelihood of success on

the merits of constitutional challenge, and distinguishing Humphrey’s Executor by explaining that “[u]nlike

the FTC commissioners in 1935, NLRB Board Members today ‘wield substantial executive power’”

(footnote omitted) (quoting Seila Law, 591 U.S. at 218)); Harris v. Bessent, 160 F.4th 1235, 1251 (D.C. Cir. 2025)

(invalidating NLRB Board member good-cause removal protection because “Congress has vested the

NLRB with several executive powers beyond the ones addressed in Humphrey's Executor”). Like Wilcox

however, all agree that Humphrey’s Executor is still good law. See Space Expl. Techs. Corp., 151 F.4th at 776–

77 (recognizing that “Humphrey’s Executor carved out an ‘“exception” to the general “rule” that lets a

president remove subordinates at will’” and that the “contours of the Humphrey’s Executor exception

depend upon the characteristics of the agency before the Court” (quoting Consumers’ Rsch. v. Consumer

Prod. Safety Comm’n, 91 F.4th 342, 352–53 (5th Cir. 2024))); Harris, 160 F.4th at 1248–49 (recognizing that “we

must apply Humphrey’s Executor as best we can, unless and until the Supreme Court overrules it” and that

the NLRB and MSPB’s powers “fall outside any exception based on that decision”); see also Wilcox, 145 S.

Ct. at 1419 (Kagan, J., dissenting) (“[L]ower courts recently faced with challenges to independent agencies’

removal provisions have uniformly rejected them based on Humphrey’s.”); Harris, 160 F.4th at 1258 (Pan, J.,

dissenting) (“[M]y colleagues make us the first court to strike down the independence of a traditional

multimember expert agency . . . .”). For the same reasons Wilcox is inapposite, these circuit court cases are

inapposite here.

23

“decisions are reviewed de novo by the DEA Administrator” (citing Decker Coal

Co. v. Pehringer, 8 F.4th 1123, 1133–35 (9th Cir. 2021))); Leachco, Inc. v. Consumer

Prod. Safety Comm’n, 103 F.4th 748, 764 (10th Cir. 2024) (upholding dual-layer CPSC

ALJ protections because the ALJ in question “performed ‘a purely adjudicatory

function’” and “Congress did not statutorily require that the CPSC use ALJs for

administrative adjudications”); Walmart, Inc. v. Chief Admin. L. Judge of the Off. of

the Chief Admin. Hearing Officer, 144 F.4th 1315, 1343–45 (11th Cir. 2025) (upholding

dual-layer OCAHO ALJ protections because such ALJs have “only adjudicative

functions” and have “essentially no power to render a final decision on behalf of

the United States unless permitted to do so by the Attorney General”).

Only the Fifth Circuit has held otherwise. In Jarkesy v. SEC, a divided panel

explained that “[i]f principal officers cannot intervene in their inferior officers’

actions except in rare cases, the President lacks the control necessary to ensure that

the laws are faithfully executed,” pointing out that the SEC ALJs in question

“exercise considerable power over administrative case records by controlling the

presentation and admission of evidence; they may punish contemptuous conduct;

and often their decisions are final and binding.” 34 F.4th 446, 464 (5th Cir. 2022),

aff’d on other grounds, 603 U.S. 109 (2024). The dissent took the route of the other

24

circuits, explaining that the SEC’s dual-layer removal protections for its ALJs is

constitutional because the “ALJs perform an adjudicative function.” Id. at 475

(Davis, J., dissenting); see also Leachco, Inc., 103 F.4th at 764 (“And while the Fifth

Circuit found double-layered removal protections for ALJs unconstitutional in

Jarkesy v. Securities and Exchange Commission, that court seemed to disregard the

distinction between the PCAOB members in Free Enterprise Fund, who exercised

executive functions, and ALJs, who perform adjudicatory functions.”). The Fifth

Circuit has recently applied its reasoning in Jarkesy to invalidate the dual-layer

protections of the NLRB’s ALJs. See Space Expl. Techs. Corp. v. NLRB, 151 F.4th 761,

774–75 (5th Cir. 2025).

The Third, Fourth and Sixth Circuits meanwhile have rejected challenges to

ALJ removal protections on the basis that the alleged constitutional violation per

se does not constitute cognizable harm. See Axalta Coating Sys. LLC v. Fed. Aviation

Admin., 144 F.4th 467, 480 (3d Cir. 2025) (“The only harm that Axalta asserts is the

fact of having been made to appear before an ALJ who benefited from allegedly

unconstitutional removal protections. Under [Collins v. Yellen, 594 U.S. 220, 258–

60 (2021)] and [NLRB v. Starbucks Corp., 125 F.4th 78, 88 (3d Cir. 2024)], this asserted

harm cannot provide a basis for granting relief to Axalta.”); Dominion Coal Corp. v.

25

Dir., Off. of Workers’ Comp. Programs, No. 23-2310, — F.4th —, 2026 WL 110955, at

*6 (4th Cir. Jan. 15, 2026) (“[A] litigant can’t ‘have the underlying agency action set

aside absent reason to believe that the unconstitutional removal provision itself

inflicted harm.’” (quoting K & R Contractors, LLC v. Keene, 86 F.4th 135, 149 (4th

Cir. 2023))); Calcutt v. Fed. Deposit Ins. Corp., 37 F.4th 293, 318 (6th Cir. 2022)

(“[E]ven if we were to accept that the removal protections for the FDIC ALJs posed

a constitutional problem, Calcutt is not entitled to relief unless he establishes that

those protections ‘inflict[ed] compensable harm,’ and he has not made this

showing.” (quoting Collins, 594 U.S. at 259)), rev’d on other grounds, 598 U.S. 623

(2023). In particular, even though its holding was based on the lack of cognizable

harm, the Sixth Circuit in Calcutt nevertheless explained that “even if [plaintiff]

established that the removal protections caused him harm, Free Enterprise Fund

explicitly excludes ALJs from its prohibition on multiple levels of for-cause

removal protection,” and found that FDIC ALJs “perform adjudicatory functions”

subject to review by the FDIC Board, rendering their removal restrictions

constitutional. 37 F.4th at 318–20.

All this to say: by my count, the Fifth Circuit stands alone in holding that

dual-layer removal protections for agency ALJs are unconstitutional. Rather, the

26

reasoning laid out above is in accord with the majority of our sister circuits, falls

within settled precedent, and is supported by both fundamental separation-of-

powers principles and historical practice. Plaintiffs are unlikely to succeed on the

merits of their constitutional challenge to the removal protections afforded the

NLRB’s ALJs.

B. Appointment of Administrative Law Judge Chu

Plaintiffs’ Appointments Clause claim presents a narrower issue: whether

an ALJ who was invalidly appointed, but whose appointment was ratified before

his decision was issued, renders continuation of the proceeding before the Board

a per se constitutional injury. 10 To me, the answer is plain: no.

In NLRB v. Newark Electric Co., we held that actions by an invalidly

appointed officer could be rendered valid by subsequent ratification. 14 F.4th 152,

160–61 & n.6 (2d Cir. 2021). We looked approvingly to the D.C. Circuit’s decision

in Wilkes-Barre Hospital Co. v. NRLB, 857 F.3d 364, 370–71 (D.C. Cir. 2017), which

held that a properly constituted Board could ratify the initially invalid

appointment of an inferior officer, who could then ratify his own invalid acts.

10 There is no need to decide whether subjection to further proceedings before Judge Chu would

impose such an injury. That question is now moot, as those proceedings have concluded and Judge Chu

has retired.

27

While Plaintiffs’ claim presents a novel question in our circuit, it logically

follows from these precedents that, if the constitutional defect of a decision can be

cured by subsequent ratification, the constitutional defect of a proceeding can be

cured as well, at least prospectively. It would make little sense if the outcome of

a proceeding could be made constitutionally valid but the proceeding itself could

not. Once Judge Chu’s appointment was properly ratified, any here-and-now

injury stemming from the invalidity of his appointment ceased. 11 After that point,

Plaintiffs were no longer subject to a proceeding before an invalidly appointed

ALJ.

Lucia v. SEC, 585 U.S. 237 (2018), is not to the contrary. There, the Supreme

Court held that the proper remedy for an invalid decision rendered by an

improperly appointed ALJ was a new hearing, either before a different ALJ or

before the Commission itself. 585 U.S. at 251–52. The Court said nothing about

here-and-now injuries or whether enjoining an agency proceeding is an

appropriate or permissible remedy for a faulty appointment. Rather, Lucia dealt

with an Appointments Clause challenge in its typical posture—on judicial review

11 I would assume without deciding that such an injury would be cognizable and that Plaintiffs

suffered it. Any question as to whether Judge Chu’s initial appointment will have affected the validity of

the agency’s final decision is not yet ripe. That question must await judicial review of the decision itself,

which the Board has yet to issue.

28

of the agency’s final action. The question of whether continuing an agency

proceeding after ratification of an initially faulty appointment imposes a here-and-

now injury—let alone one that might justify permanently enjoining the entire

proceeding—is a different one entirely.

* * *

Plaintiffs have failed to demonstrate a likelihood of success on the merits of

their constitutional challenges. While I join in the majority’s conclusion that

Plaintiffs fail to demonstrate irreparable harm, I think Plaintiffs also fail to bring a

constitutional challenge of any merit. I would not shy away from reaching the

latter.

29