SPRING CREEK REHABILITATION AND NURSING CENTER LLC, DBA Spring Creek Healthcare Center v. National Labor Relations Board, a Federal administrative agency

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 24-3043
SPRING CREEK REHABILITATION AND NURSING
CENTER LLC, DBA Spring Creek Healthcare Center,
Appellant
v.
NATIONAL LABOR RELATIONS BOARD, a
Federal administrative agency; WILLIAM B.
COWEN, in his official capacity as the Acting General
Counsel of the National Labor Relations Board;
MARVIN E. KAPLAN, in his official capacity as
Chairman of the National Labor Relations Board;
DAVID M. PROUTY, in his official capacity as Board
Member of the National Labor Relations Board;
JEFFREY P. GARDNER, in his official capacity as an
Administrative Law Judge of the National Labor
Relations Board
1199SEIU United Healthcare Workers East
(Intervenor)
Amended pursuant to Clerk’s Order dated 6/11/25

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On Appeal from the United States District Court
for the District of New Jersey
(District Court No. 2:24-cv-09016)
District Judge: Honorable Jamel K. Semper
Submitted Under Third Circuit L.A.R. 34.1(a)
on September 16, 2025
Before: BIBAS, MONTGOMERY-REEVES, and AMBRO,
Circuit Judges
(Opinion filed: December 3, 2025)
Louis J. Capozzi, Jr.
Brandon S. Williams
Capozzi Adler
2933 N Front Street
Harrisburg, PA 17110
Counsel for Appellant
Steven Bieszczat
Dawn Goldstein
Padraic Lehane
National Labor Relations Board
1015 Half Street SE
Washington, DC 20570
Counsel for Appellees

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Katherine H. Hansen
Gladstein Reif & Meginniss
39 Broadway
Suite 2430
New York, NY 10006
Stacey Leyton
Aaron M. Schaffer-Neitz
Altshuler Berzon
177 Post Street
Suite 300
San Francisco, CA 94108
Counsel for Appellee 1199 SEIU United
Healthcare Workers East
OPINION OF THE COURT
AMBRO, Circuit Judge.
The National Labor Relations Board (“NLRB”) issued
a complaint against Spring Creek Rehabilitation and Nursing
Center LLC (“Spring Creek”) alleging it committed unfair
labor practices in violation of Sections 8(a)(1) and 8(a)(5) of
the National Labor Relations Act (“NLRA”), 29 U.S.C. §
158(a)(1), (a)(5). The NLRB summoned Spring Creek to
appear at a hearing before an administrative law judge
(“ALJ”). It responded by filing an action in the United States
District Court for the District of New Jersey alleging the

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NLRB’s Members and ALJs are unconstitutionally insulated
from removal by the President.
From that premise, Spring Creek moved for a
preliminary injunction to prevent the NLRB’s administrative
proceedings from going forward. The District Court denied
that motion, and the NLRB hearing took place. Spring Creek
appeals, arguing that being subjected to a decision of an ALJ
who enjoys unlawful removal protections will harm it
irreparably.
We resolve this appeal solely on a threshold matter the
District Court did not have the opportunity to consider.
Because this suit grows out of a labor dispute between Spring
Creek and its employees, we hold that the Norris-LaGuardia
Act, 29 U.S.C. § 101, et seq., strips the District Court of
jurisdiction to issue the injunctive relief Spring Creek seeks in
this context.
I. BACKGROUND
Spring Creek bought a skilled nursing facility from
Amboy Nursing and Rehabilitation Center (“Amboy”) in
November 2021. For years prior to the sale, Amboy maintained
a collective-bargaining relationship with 1199SEIU United
Healthcare Workers East (the “Union”), which represented the
facility’s employees. The most recent collective bargaining
agreement between the Union and Amboy became effective in
June 2017 and expired in June 2020.
The Union filed an unfair labor practices charge against
Amboy with the NLRB in August 2021 after learning about

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Amboy’s agreement to sell the facility. The primary contention
was that Amboy violated the expired agreement’s successor
provisions by selling the facility to Spring Creek without
requiring it to “be personally responsible for all unpaid wages,
welfare fund payments, vacations, holidays, sick leave and all
other monetary items.” App. 23.
In the lead-up to its November 2021 takeover, Spring
Creek sent a letter to the Union stating that it would not assume
the expired collective bargaining agreement. Spring Creek
alleged it was free to set terms and conditions of employment
unilaterally without bargaining with the Union. In May 2023,
the latter amended its unfair labor practices charge with the
NLRB to add Spring Creek as a party.
The NLRB issued a complaint against Spring Creek in
May 2024 and an amended complaint two months later. It
alleges that Spring Creek refused to “bargain collectively and
in good faith with the exclusive collective-bargaining
representative of its employees in violation of Section 8(a)(1)
and (5)” of the NLRA. App. 41. The complaint also gave notice
to Spring Creek that it would be required to appear at a hearing
before an ALJ on September 10, 2024.
Spring Creek filed an action in the New Jersey District
Court seeking an injunction to stop the NLRB from holding the
hearing. It would be unlawful, Spring Creek claimed, because
NLRB ALJs enjoy unconstitutional protections from removal
by the President. The District Court denied Spring Creek’s
motion for a preliminary injunction, finding it failed to show
that it would suffer irreparable harm in the absence of relief.
The NLRB held the hearing but has not yet issued a decision.
Spring Creek challenges the denial of its motion for a

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preliminary injunction, arguing that the court still may enjoin
the ALJ from issuing a decision.
On appeal, the NLRB raises a new argument—that the
Norris-LaGuardia Act (the “Act”), 29 U.S.C. § 101, strips the
District Court of jurisdiction to issue the injunctive relief
Spring Creeks seeks. Even though it did not raise this issue in
the prior proceedings, we nonetheless consider the NLRB’s
new anti-injunction argument because it goes to the Court’s
subject-matter jurisdiction. See United States v. Cotton, 535
U.S. 625, 630 (2002) (“[S]ubject-matter jurisdiction, because
it involves a court’s power to hear a case, can never be forfeited
or waived.”).
II. ANALYSIS
We use a three-part standard to review a district court’s
decision to grant or deny a preliminary injunction: “we review
the Court’s findings of fact for clear error, its conclusions of
law de novo, and the ultimate decision to grant the preliminary
injunction for abuse of discretion.” Miller v. Mitchell, 598 F.3d
139, 145 (3d Cir. 2010).
Here we consider the scope of the Act’s anti-injunction
provisions. They strip district courts of jurisdiction to issue
injunctions in cases growing out of a labor dispute unless they
follow strict procedures. The issue is whether this case—an
action brought on constitutional grounds to enjoin the NLRB
from holding administrative proceedings to decide an unfair
labor practices charge—grows out of a labor dispute.
The Act provides:

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[N]o court of the United States[] . . . shall have
jurisdiction to issue any restraining order or
temporary or permanent injunction in a case
involving or growing out of a labor dispute,
except in a strict conformity with the provisions
of this chapter; nor shall any such restraining
order or temporary or permanent injunction be
issued contrary to the public policy declared in
this chapter.
29 U.S.C. § 101 (“Section 1”).
If Section 1 applies to a case, it does not bar injunctive
relief outright. Instead, it strips the district court of jurisdiction
to grant the requested relief unless the case fits an exception
elsewhere in the Act—here, 29 U.S.C. § 107 (“Section 7”). We
also recognize two exceptions to the Act’s applicability
altogether, under either of which a court has the jurisdiction to
afford a party to a labor dispute injunctive relief without
following Section 7’s requirements. The exceptions are those
necessary (1) “to accommodate [the] strong federal policy in
favor of arbitration” and (2) “to reconcile the [Act] with other
federal statutes.” Lukens Steel Co. v. United Steelworkers of
Am. (AFL-CIO), 989 F.2d 668, 678 (3d Cir. 1993). To
determine whether the District Court had jurisdiction to grant
the relief Spring Creek seeks, we consider first whether this
case involves or grows out of a labor dispute, and second,
whether an exception applies.1
1 In Lukens Steel, we set out a four-step analysis for
determining whether the Act divested a district court of
jurisdiction: (1) whether the action involves a labor dispute, (2)

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A. Does this Case Involve or Grow Out of a Labor
Dispute?
The Act defines a labor dispute as including “any
controversy concerning terms or conditions of employment, or
concerning the association or representation of persons in
negotiating, fixing, maintaining, changing, or seeking to
arrange terms or conditions of employment.” 29 U.S.C. §
113(c). This definition is “intentionally broad.” United Tel.
Workers, AFL-CIO v. W. Union Corp., 771 F.2d 699, 704 (3d
Cir. 1985). The Supreme Court explains that the “critical
element” is whether “the employer-employee relationship [is]
the matrix of the controversy.” Jacksonville Bulk Terminals,
Inc. v. Int’l Longshoremen’s Ass’n, 457 U.S. 702, 712 (1982)
(quoting Columbia River Packers Assn., Inc. v. Hinton, 315
U.S. 143, 147 (1942)).
The subject of the NLRB’s charge against Spring Creek
undoubtedly involves a labor dispute. The employer-employee
relationship is the “matrix” of that controversy (meaning it
frames the dispute) because it concerns whether Spring Creek,
an employer, failed to bargain collectively and in good faith
with its employees’ collective bargaining representative over
the terms of their employment. But that does not end our
whether the relief the district court fashioned involved an
injunction within the meaning of the Act, (3) whether the
district court complied with Section 7, and (4) whether an
exception applies. 989 F.2d at 675-76. The relief Spring Creek
seeks is an injunction within the meaning of the Act, which
satisfies the second step. Moreover, we need not address the
third step because the District Court in our case denied
injunctive relief without considering whether the case involves
or grows out of a labor dispute.

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inquiry. Spring Creek’s action here seeks only to challenge the
power of the NLRB to decide the dispute, and the
constitutional issues it raises are collateral to the merits of the
unfair labor practices charge. Because there is a degree of
separation between this case and the underlying dispute, we
must consider whether the former still “involves” or “grows
out of” Spring Creek’s labor dispute with the Union within the
meaning of the Act.2
The Supreme Court’s decision in Burlington Northern
Railroad Co. v. Brotherhood of Maintenance of Way
Employees, 481 U.S. 429 (1987), is instructive. It involved a
labor dispute similar to what we have here. A collective
bargaining agreement expired, setting off years of negotiations
between the employer (a railroad operator) and its employees.
2 Spring Creek argues the Act does not apply here because this
action does not implicate the public policy goals declared at 29
U.S.C. § 102 (“Section 2”). That argument misunderstands the
statute’s anti-injunction provisions. Section 1 strips courts of
jurisdiction to issue injunctions in cases “involving or growing
out of a labor dispute, except in a strict conformity with the
provisions of this chapter.” 29 U.S.C. § 101. Then, as an
additional limitation on the power of federal courts, Section 1
further provides that no “such . . . injunction [shall] be issued
contrary to the public policy declared in this chapter.” Id.
Whether the action involves or grows out of a labor dispute is
therefore antecedent to whether issuing the injunctive relief
Spring Creek seeks would violate the public policy Section 2
declares. At this stage, our only focus is whether the action
involves or grows out of a labor dispute.

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Id. at 432. Those efforts failed, leading the employees to strike
and picket the employer’s facilities. Id. They then escalated by
extending their picketing activities to the facilities of other
railroad operators who were not involved in the underlying
labor dispute. Id. at 433. A district court enjoined “the
picketing of any railroads other than those involved in the
primary dispute.” Id. at 431. But the Supreme Court held the
Act stripped the trial court of jurisdiction to enter an injunction
because the dispute “over the terms and conditions of
employment is unquestionably a labor dispute, and the
secondary activity against petitioners grows out of that
dispute.” Id. at 440. The distinction between a labor union’s
primary and secondary picketing activities is important in
many contexts because it often determines whether the activity
is protected or prohibited by law. See Int’l Longshoremen’s
Ass’n, AFL-CIO v. Allied Int’l, Inc., 456 U.S. 212, 224 n.22
(1982). The Act’s disregard of that distinction shows the
statute’s breadth. See Burlington, 481 U.S. at 441 (“Congress
made the definition of ‘labor dispute’ broad because it wanted
it to be broad.”) (cleaned up).
Giving the Act a broad construction leads us to conclude
that our case “involves” or “grows out of” the labor dispute
between the Union and Spring Creek. It could not have brought
this action but for the underlying dispute. See Armco, Inc. v.
United Steelworkers of Am., 280 F.3d 669, 680-81 (6th Cir.
2002) (holding the Act deprived a district court of jurisdiction
to enter a consent decree settling constitutional claims
collateral to alleged labor law violations because those claims
“would not exist but for the underlying [labor dispute]”)
(emphasis added). And if the District Court enjoined the
NLRB’s administrative proceedings, it would prevent the
tribunal tasked by Congress with deciding the Union’s unfair

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labor practices charge from resolving the merits of the case.
That would put a thumb on the scale for Spring Creek in the
underlying dispute, precisely the kind of “judicial interference
in management-labor relations” the Act’s anti-injunction
provisions seek to prevent. United Tel. Workers, 771 F.2d at
704.
Our reasoning in Lukens Steel supports this result.
There, a union sought to arbitrate claims it brought against an
employer alleging violations of a collective bargaining
agreement. 989 F.2d at 671. Attempting to enjoin the
arbitration, the employer filed a district court action. Id. We
held that it grew out of the labor dispute over whether the
employer violated the collective bargaining agreement. Id. at
676 (holding the Act’s “broad definition of ‘labor dispute’
compels such a result.”). Our case similarly involves an
employer’s action challenging the forum in which the merits of
the dispute will be resolved. Whereas the union in Lukens Steel
sought an arbitral forum, here the Union filed unfair labor
practices charges with the NLRB. It would be incongruous
with Lukens Steel to hold that Spring Creek’s action does not
“grow out” of its dispute with the Union just because the claims
Spring Creek raises challenge only the lawfulness of the forum.
See also AT&T Broadband, LLC v. Int’l Bhd. of Elec. Workers,
317 F.3d 758, 760 (7th Cir. 2003) (“That the arbitration is not
itself a ‘labor dispute’ does not make this suit less one ‘growing
out of’ a labor dispute.”) (emphasis in original).
Several district courts have reached the same conclusion
we do. See Hannam Chain USA, Inc. v. NLRB, 2025 WL
3204539, at *2-3 (D.D.C. Nov. 17, 2025) (finding that a suit to
enjoin NLRB administrative proceedings based on
constitutional challenges to the agency’s structure can fall

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within the ambit of the Act); Red Rock Resorts, Inc. v. NLRB,
2025 WL 2784607, at *7 (D. Nev. Sept. 30, 2025) (same);
Amazon.com Services LLC v. NLRB, 2025 WL 466262, at *4
(C.D. Cal. Feb. 5, 2025) (same); VHS Acquisition Subsidiary
No. 7 v. NLRB, 2024 WL 4817175, at *7 (D.D.C. Nov. 17,
2024) (same), appeal dismissed sub nom. VHS Acquisition
Subsidiary No. 7, Inc. v. NLRB, 2024 WL 5232662 (D.C. Cir.
Dec. 26, 2024).
Courts are not unanimous on this question, however.
Before proceeding to the next step, we pause to address Space
Exploration Technologies Corp. v. NLRB, in which the Fifth
Circuit held an employer’s action to enjoin the NLRB’s
administrative proceedings against it did not “grow out” of the
underlying labor dispute with its employees. 151 F.4th 761,
770 (5th Cir. 2025). We part from that holding.
Space Exploration relies on the text of 29 U.S.C. § 113
(“Section 13”) to hold that the Act cannot apply to an
employer’s suit against the NLRB because the agency is not
itself involved in the same industry as the parties to the labor
dispute. But the statute creates no such requirement. It provides
that “[a] case shall be held to involve or to grow out of a labor
dispute when the case involves persons who are engaged in the
same industry.” 29 U.S.C. § 113.3 Indeed, the NLRB is not
engaged in the same industry as Spring Creek. Even though the
agency is a party to the suit, the case involves Spring Creek’s
employees engaged in the same industry as Spring Creek. This
3 The statute lists other ways a case can qualify as growing out
of a labor dispute. See generally 29 U.S.C. § 113(a). Because
our case involves persons engaged in the same industry, we do
not consider whether it could also qualify as growing out of a
labor dispute for other reasons.

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is so because the Union charged Spring Creek with unfair labor
practices before the NLRB, and this suit will determine
whether the agency can lawfully decide the charge.4 The Act
does not require the Union to be a party instead of the NLRB
for the case to “grow out” of the underlying labor dispute. See
Jacksonville Bulk Terminals, 457 U.S. at 711 (explaining that
because the Act “merely requires that the case involve ‘any’
labor dispute,” it does not “require[] that each dispute relevant
to the case be a labor dispute” (emphasis omitted)); see also
United Steelworkers of Am., AFL-CIO v. Bishop, 598 F.2d 408,
414 (5th Cir. 1979) (“The fact that the labor dispute was
between the employer . . . and its employees’ Union, while the
case before the district court involved the employer and its
customer, cannot control.”).
Space Exploration also suggests the Act cannot apply
here because this is not a case “between [an] [e]mployer[] and
[its] employees,” nor does it “have [any]thing to do with
employee boycotts, union organization, or labor strikes.” 151
F.4th at 770. The Fifth Circuit’s conclusion cannot be squared
with New Negro Alliance v. Sanitary Grocery Co., 303 U.S.
552 (1938), in which a grocery store operator sued a civil rights
organization to enjoin its members from picketing its stores.
The Act barred injunctive relief in that context because the
underlying dispute was a labor dispute and the organization’s
members were “persons interested in the dispute,” id. at 60,
even though the case was not between an employer and its
employees, nor was the organization “engaged in any business
4 The Union is also an intervenor in this case. Its interest here
is strong—it is the party that filed a complaint against Spring
Creek with the NLRB, and it intervenes now to protect its
interest in the NLRB proceeding.

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competitive” with the store operator. Id. at 555. And it was of
no consequence either that the grocery store’s claim did not
sound as a dispute over employment terms but rather
“conspiracy in restraint of trade.” Id. at 558-59.
We also decline to adopt Space Exploration’s
construction of Section 13 because it renders 29 U.S.C. §
160(h) mere surplusage. That section excepts suits involving
NLRB orders from the Act’s anti-injunction provisions. It
provides:
When granting appropriate temporary relief or a
restraining order, or making and entering a
decree enforcing, modifying, and enforcing as so
modified or setting aside in whole or in part an
order of the Board, as provided in this section,
the jurisdiction of courts sitting in equity shall
not be limited by chapter 6 of this title.
29 U.S.C. § 160(h).
Space Exploration suggests that the Act cannot apply to
a suit against the NLRB. 151 F.4th at 770. If Congress meant
to exempt all such suits from the Act’s anti-injunction
provisions, it could have expressly done so. It did not. Section
160(h) only exempts some suits involving the NLRB from the
Act’s reach: those challenging an order of the Board. The
statutory scheme thus contemplates that suits against the
NLRB can be subject to the Act’s anti-injunction provisions
until the Board issues an order. To hold otherwise would render
§ 160(h) surplusage. See Marx v. Gen. Revenue Corp., 568
U.S. 371, 386 (2013) (“[T]he canon against surplusage is

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strongest when an interpretation would render superfluous
another part of the same statutory scheme.”).
Space Exploration’s interpretation of Section 13 also
risks rendering superfluous a provision of the NLRA. Under
29 U.S.C. § 178(a), the Government may “obtain an injunction
against union strikes and lockouts by . . . showing that the
strike or lockout affects an entire industry or a substantial part
thereof and imperils the national health or safety.” Starbucks
Corp. v. McKinney, 602 U.S. 339, 348 (2024) (cleaned up).
Section 178(b) exempts such suits from the Act’s anti-
injunction provisions. But Space Exploration suggests that
suits involving the Government as a party do not implicate
those provisions because “they are not between [an]
[e]mployer[] and [its] employees,” nor are the parties in such
suits “engaged in the same industry, trade, craft, or
occupation.” 151 F.4th at 770 (quoting 29 U.S.C. § 113(a)).5 If
5 It may be possible to read the Space Exploration decision
narrowly to avoid inferring this suggestion. It holds that suits
against the NLRB in this context cannot involve or grow out of
a labor dispute for three reasons: (1) because “they are between
the Employers and the NLRB” rather than “the Employers and
their employees”; (2) because “the employers are not ‘engaged
in the same industry, trade, craft, or occupation’”; and (3)
because “the claims concern Article II and the separation of
powers” rather than “employee boycotts, union
organization, or labor strikes.” 151 F.4th at 770 (quoting 29
U.S.C. § 113(a)). The third reason would likely distinguish any
suit brought under 29 U.S.C. § 178(a) from a suit to enjoin the
NLRB’s administrative proceedings. Unlike a separation-of-
powers challenge, a suit the Government brings under 29
U.S.C. § 178(a) would presumably have something “to do with
employee boycotts, union organization, or labor strikes.” 151

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Space Exploration is correct that the Act’s anti-injunction
provisions do not apply to cases involving the Government as
a party in the first place, then § 178(b) would serve no purpose
in expressly exempting suits the Government brings to enjoin
strikes that threaten national safety from the Act’s reach. The
interpretation of Section 13 we adopt today does not render §
178(b) mere surplusage.
Space Exploration also holds the Act does not apply to
suits like this one because Congress’s aim in passing the statute
“was not . . . to bar constitutional challenges to agency
structure.” 151 F.4th at 770. Again, the Fifth Circuit’s
interpretation of the Act is to us too narrow. True, Congress
passed it “primarily to limit the availability of injunctive relief
in labor strikes” at a time when employers frequently sought to
enjoin strikes through ex parte applications to federal courts.
United Tel. Workers, 771 F.2d at 703-04. However, its anti-
injunction provisions also serve the “broader goal
of . . . prevent[ing] judicial interference in management-labor
relations.” Id. Congress has not exempted challenges to agency
F.4th at 770. Therefore, if Space Exploration’s holding is
limited only to cases implicating all three of the circumstances
it discusses, then perhaps it does not suggest that all suits
involving the Government as a party must necessarily fall
outside the ambit of the Act’s anti-injunction provisions. But
we cannot be so sure. The decision does not qualify its
reasoning in this way—it merely provides three reasons
supporting its application of Section 13 without delineating
between the necessary and sufficient grounds for its holding.
Because the decision could be construed to suggest that all
cases involving the Government as a party fall outside the
Act’s reach, we address that suggestion here.

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structure from the Act’s ambit. And the Supreme Court
instructs that it is to be interpreted broadly. See Jacksonville
Bulk Terminals, 457 U.S. at 708 (“This court has consistently
given the anti-injunction provisions of the Norris-LaGuardia
Act a broad interpretation . . . .”). We therefore decline to read
into the Act an exception that does not exist.6
B. Does an Exception to the Act Apply?
The next step is to determine whether our case “falls
within a judicially-carved exception to the [Act].” Lukens
Steel, 989 F.2d at 676. To repeat, the two exceptions are (1)
“those to accommodate the strong federal policy in favor of
arbitration” and (2) “those to reconcile the [Act] with other
6 In addition to its textual and policy arguments, Space
Exploration also holds the Act does not strip a district court of
jurisdiction in this context based on its application of the three
factors set out in Thunder Basin Coal Co. v. Reich, 510 U.S.
200 (1994). 151 F.4th at 771. Those factors are (1) whether the
limitation of jurisdiction would “foreclose all meaningful
judicial review,” (2) whether the suit is “wholly collateral to a
statute’s review provisions,” and (3) whether the claims are
“outside the agency’s expertise.” Thunder Basin, 510 U.S. at
212-13. Courts use the Thunder Basin factors to determine
whether a “special statutory review scheme . . .
preclude[s] district courts from exercising jurisdiction over
challenges to federal agency action.” Axon Enter., Inc. v. FTC,
598 U.S. 175, 185 (2023); see also Thunder Basin, 510 U.S. at
207. But Space Exploration recognizes the Act’s anti-
injunction provisions do not create a “special statutory review
scheme.” 151 F.4th at 771. The Thunder Basin factors are thus
off point in addressing the jurisdictional question here.

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federal statutes.” Id. at 678. Neither applies—this case does not
involve arbitration, and Spring Creek’s claim for injunctive
relief is not based on any federal statutory rights.
* * *
Spring Creek’s action to enjoin the NLRB from
subjecting it to administrative proceedings grows out of the
underlying labor dispute with its employees over whether it
committed unfair labor practices by failing to bargain
collectively and in good faith with the Union. Congress did not
limit the applicability of the Norris-LaGuardia Act only to
cases involving identical parties to that dispute. And it did not
create an exception for challenges to agency structure.
Congress therefore does not exempt an action in this posture
from the reach of the Act. It stripped the District Court of
jurisdiction to issue an injunction against the NLRB. We
vacate its order denying injunctive relief and remand to that
Court for further proceedings consistent with this opinion.

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MONTGOMERY-REEVES, Circuit Judge, concurring.
I agree with the majority that Spring Creek’s claims
must be dismissed for lack of subject-matter jurisdiction, but I
reach that conclusion based solely on Article III of the
Constitution.
Article III grants federal courts jurisdiction to oversee
certain “Cases” and “Controversies,” and we are constrained
by its reach. U.S. CONST. art. III, § 2. “No principle is more
fundamental to the judiciary’s proper role in our system of
government than the constitutional limitation of federal-court
jurisdiction to actual [C]ases or [C]ontroversies.” Raines v.
Byrd, 521 U.S. 811, 818 (1997) (internal quotation omitted).
Those Cases and Controversies exist only where a plaintiff “(1)
suffered an injury in fact, (2) that is fairly traceable to the
challenged conduct of the defendant, and (3) that is likely to be
redressed by a favorable judicial decision.” Spokeo, Inc. v.
Robins, 578 U.S. 330, 338 (2016); see also NLRB v. Starbucks
Corp., 125 F.4th 78, 88 (3d Cir. 2024) (quoting Lujan v. Defs.
of Wildlife, 504 U.S. 555, 560–61 (1992) (cleaned up)). Spring
Creek’s claim fails at the first step; it does not state an injury
in fact.
Under Article III, when a litigant challenges the
NLRB’s authority based on “unconstitutional removal
protections,” it “must show that the constitutional infirmity
actually caused harm.” Starbucks, 125 F.4th at 88. The
Supreme Court theorized that a litigant may be harmed if an
agency acted after a district court enjoined the President from
removing a key agency decisionmaker or if the President
expressed that he would remove the decisionmaker but for the
removal protections. Collins v. Yellen, 594 U.S. 220, 259–60
(2021). We explained that those Collins hypotheticals are
“examples of how . . . harm might be demonstrated” to allege
an injury-in-fact for Article III standing. Starbucks, 125 F.4th
at 88. But Spring Creek has not alleged that any of the Collins
hypotheticals are at play. Id. Nor has Spring Creek alleged a
“here-and-now injury” sufficient for a constitutional harm.
CFPB v. Nat’l Collegiate Master Student Loan Tr., 96 F.4th
599, 615 (3d Cir. 2024). Rather, its alleged injury boils down
to an argument that “[b]eing subject to unconstitutional agency

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authority . . . qualifies as a here-and-now injury.” App. 26
(internal quotation omitted). But we already concluded that a
plaintiff had to allege something more for this kind of here-
and-now injury—“subjection to an illegitimate proceeding, led
by an illegitimate decisionmaker,” Axon Enter. Inc. v. FTC, 598
U.S. 175, 191 (2023). Nat’l Collegiate Master Student Loan
Tr., 96 F.4th at 615. We explained, for example, they could
allege “a compensable and identifiable harm” or that “this suit
would [not] have been undertaken but-for a president’s
authority to remove” NLRB members. Id. at 615–16; see also
Collins, 594 U.S. at 274 (Kagan, J., concurring). Without these
kinds of allegations, Spring Creek has fallen short of alleging
an injury-in-fact.
Spring Creek’s inability to allege adequately that it was
harmed by any restrictions on removing NLRB members or
Administrative Law Judges is fatal to its Article III standing,
and the Constitution prohibits this Court and the District Court
from hearing its claim. Accordingly, I would dismiss this claim
for lack of subject-matter jurisdiction on that basis alone. For
that reason, I respectfully concur in the judgment.

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