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
C ARE O NE , LLC, H EALTHBRIDGE MANAGEMENT , LLC, C ARE REALTY , LLC, 107
O SBORNE STREET O PERATING C OMPANY II, LLC, D.B .A. D ANBURY HCC, 710 L ONG
RIDGE ROAD O PERATING C OMPANY II, LLC, D.B .A. L ONG RIDGE OF S TAMFORD, 240
C HURCH STREET O PERATING C OMPANY II, LLC, D.B .A. N EWINGTON H EALTH C ARE
C ENTER , 1 B URR ROAD O PERATING C OMPANY II, LLC, D.B .A. W ESTPORT H EALTH
C ARE C ENTER , 245 O RANGE AVENUE O PERATING C OMPANY II, LLC, D.B .A. WEST
RIVER HEALTH C ARE C ENTER , 341 J ORDAN L ANE O PERATING COMPANY II, LLC,
D. B . A. WETHERSFIELD H EALTH C ARE CENTER , 2028 B RIDGEPORT AVENUE
O PERATING C OMPANY II, LLC, D.B .A. GOLDEN HILL H EALTH C ARE CENTER , 745
H IGHLAND AVE O PERATING C O LLC, D.B .A. H IGHLANDS HEALTH C ARE C ENTER ,
162 S OUTH B RITAIN ROAD O PERATING C OMPANY II, LLC, D.B .A. RIVER GLEN
H EALTH C ARE CENTER ,
Plaintiffs-Appellants,
v.
N ATIONAL L ABOR RELATIONS B OARD, L AUREN MCFERRAN, IN HER CAPACITY AS A
MEMBER OF THE N ATIONAL L ABOR RELATIONS B OARD, GWYNNE W ILCOX , IN HER
CAPACITY AS A MEMBER OF THE N ATIONAL L ABOR RELATIONS B OARD, MARVIN
KAPLAN, IN HIS CAPACITY AS A MEMBER OF THE N ATIONAL L ABOR RELATIONS
B OARD, D AVID PROUTY , IN HIS CAPACITY AS A MEMBER OF THE NATIONAL L ABOR
RELATIONS B OARD, KENNETH R. C HU, IN HIS CAPACITY AS AN ADMINISTRATIVE L AW
J UDGE OF THE N ATIONAL L ABOR RELATIONS B OARD,
Defendants-Appellees.*
* The Clerk of Court is respectfully directed to amend the caption as indicated
above.

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__________
On Appeal from the United States District Court
for the District of Connecticut
__________
ARGUED: N OVEMBER 12, 2024
D ECIDED: 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.

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D ANIEL R. BENSON (Christian T. Becker and Amit R.
Vora, on the briefs), Kasowitz Benson Torres LLP, New
York, NY, for Plaintiffs-Appellants.
MICHAEL S. D ALE (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.

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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

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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).

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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.

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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)

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(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

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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

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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.

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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

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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).

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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

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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

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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

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16
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).

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17
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

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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).

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19
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

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20
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.

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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.

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1
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

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2
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

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3
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

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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)).

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5
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.

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6
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.

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7
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).

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8
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).

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9
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.

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10
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

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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.

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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.

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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

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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

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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.

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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.

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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.

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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.

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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

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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

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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

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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

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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.

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“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

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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.

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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

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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.

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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.

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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.

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