Injunctions against the NLRB are becoming routine in the Fifth Circuit, as courts there—unlike courts anywhere else—signal approval of employers’ constitutional challenges to the agency. Fifth Circuit courts have also continued using controversial tactics to ensure that the NLRB cannot get these cases transferred to forums where the underlying events took place or where they otherwise properly belong.

Findhelp (N.D. Tex.)

On September 16th, the Northern District of Texas granted a preliminary injunction sought by Findhelp, a social services company charged with unlawfully firing union organizers and other unfair labor practices. Like other district courts in Texas, the court found that the Fifth Circuit’s Jarkesy decision applied with equal force to the NLRB’s administrative law judges. The Court enjoined the ULP proceedings against Findhelp on those grounds, without addressing the company’s other constitutional arguments. Much like the Southern District of Texas in Energy Transfer (discussed here), the Northern District of Texas rejected the NLRB’s argument that the removal protections had not caused the company’s injury (i.e. the President has not actually sought to remove the ALJ handling these ULP charges), holding instead that being compelled to participate in a constitutionally defective agency proceeding is a cognizable injury of its own.

The NLRB has appealed the ruling and asked the Fifth Circuit to consolidate the case with two other substantially identical appeals: the agency’s appeal from an injunction halting ULP proceedings against SpaceX, and the agency’s appeal of the Energy Transfer injunction.

Amazon (5th Cir.)

While the Amazon Labor Union won an election at Amazon’s JFK8 facility in Staten Island over two years ago, the company still refuses to recognize the union. The NLRB rejected the last of the company’s objections to the election in August, leading Amazon to engage in a technical refusal to bargain, thus eliciting an 8(a)(5) ULP charge which the company can use to challenge the election’s validity in circuit court.

However, Amazon also filed suit in the Western District of Texas to prevent this 8(a)(5) charge from being processed, reciting the now-familiar constitutional arguments against the NLRB in an attempt to freeze the agency and prolong its refusal to bargain. In late September, the district court denied the company’s request for a preliminary injunction. One of Amazon’s grounds for requesting the injunction was that NLRB General Counsel Jennifer Abruzzo is seeking a make-whole remedy against the company to compensate JFK8 employees for their lost opportunity to collectively bargain since the 2022 election—an opportunity that has been lost due to years of delay tactics by Amazon. However, the court rejected this argument as “both speculative and unripe” in denying the injunction.

The court also ordered that the case be transferred to the District Court for the District of Columbia. In short, the court reasoned that Amazon’s lawsuit was based on a union election in New York and alleged violations of the Constitution occurring in the NLRB’s D.C. headquarters, making the Western District of Texas an improper venue. No “substantial part” of the underlying events took place in Texas; the company’s primary theory of venue was that the NLRB might impose remedies against it that affect Amazon’s Texas warehouses or former JFK8 employees now living in Texas. The court rejected these as “speculative” arguments about “future events that have not occurred.”

But before the district court even made these rulings, Amazon had already appealed to the Fifth Circuit, arguing that the district court had “constructively denied” its injunction request by failing to rule on it quickly enough. The Fifth Circuit—which has been loath to let challenges to federal agencies move to other forums—granted an injunction within three days, staying both the transfer of the case and the underlying NLRB proceedings. The Fifth Circuit did not give a written explanation for the injunction, but the court set an expedited briefing schedule, and oral argument is slated for November 8th.

Ascension Seton Medical Center (W.D. Tex.)

Ascension, a hospital charged with firing pro-union nurses, sued in mid-September to halt the ULP proceedings against it. Despite being located in Austin, the hospital filed suit in the Waco division—not the Austin division—of the Western District of Texas. The only judge in the Waco division is Alan Albright, who enjoined ULP proceedings against SpaceX in July. The NLRB responded by seeking to transfer the case to the Austin division, where Albright does not normally hear cases. Albright granted the transfer—but he then assigned himself to hear the case in Austin.

This is not the first time Albright has been accused of rewarding forum-shopping by allowing plaintiffs to choose him as Waco’s only federal judge before transferring the case (and himself) to the more appropriate forum of Austin. Years before the current constitutional attacks on the NLRB, Albright earned a reputation for encouraging patent litigants to bring cases in Waco, which quickly attracted more patent cases than anywhere else in the nation. Critics accused Albright of “openly soliciting” cases from the patent bar and “repeatedly ignoring binding case law” in order to avoid transferring cases to other forums and other judges. At least 50 times, Albright transferred cases from Waco to Austin but retained the cases for himself, despite the fact that a plaintiff filing suit in Austin directly could never obtain him as a judge.

The day after transferring the Ascension case, Albright granted a preliminary injunction against the NLRB. Referencing his previous injunction in the SpaceX case, Albright ruled that Jarkesy compels the conclusion that NLRB ALJs’ removal protection is unconstitutional. However, the NLRB has convinced Albright to reconsider this injunction, on the grounds that it was granted before the agency had even filed its arguments in opposition. A hearing is scheduled for this evening.

Alivio Medical Center (N.D. Ill.)

Meanwhile, courts outside the Fifth Circuit have continued to reject the attacks on the agency. Alivio, a unionized healthcare provider in Chicago, was charged with unilaterally changing its employment practices and firing employees without first bargaining with the union. The company sued to enjoin the NLRB proceedings, but the Northern District of Illinois denied a preliminary injunction request in mid-September.

The Northern District of Illinois rejected Alivio’s challenges to NLRB Members’ and ALJs’ removal protections, for the same reasons given in YAPP USA (discussed here). First, the court cited Humphrey’s Executor for the proposition that bipartisan, multi-member agencies with expertise in a particular subject area may be granted removal protections by Congress. Second, the court ruled (contra the Fifth Circuit in Jarkesy) that ALJs perform an adjudicatory role, not an executive one, meaning that their removal protections cannot violate Article II of the Constitution.

The deepening geographic split in courts’ treatment of these challenges likely explains why employers are resorting to tactics often criticized as forum-shopping. A hospital in Austin was rewarded for filing suit in Waco. Amazon was rewarded for filing suit in San Antonio to challenge D.C. officials’ handling of a New York union election. Labor law is de facto paused in the Fifth Circuit, and results like this are likely to continue until the Fifth Circuit reverses course or the Supreme Court resolves the circuit split.