Labor & Employment Law Daily Wrap Up, INDIVIDUAL RIGHTS—5th Cir.: Fifth Circuit lacks jurisdiction over Amazon’s appeal alleging NLRB proceedings were unconstitutional, (May 7, 2025)

By Jason Albright, J.D.

At issue was whether the district court constructively denied Amazon’s motion for a temporary restraining order and preliminary injunction.

The Fifth Circuit lacks subject-matter jurisdiction over Amazon’s appeal from the “constructive denial” of its motion for injunctive relief from “being subjected to [two] unconstitutional administrative proceedings” before the NLRB, the appeals court found. Amazon argued that a federal district court constructively denied its motion for a preliminary injunction by failing to rule on or before September 27, 2024, but Amazon never made a specific request during the hearing for an expedited ruling—or even just a ruling—by that date, and it failed to show that it acted diligently. Amazon also failed to establish a legitimate basis for the urgency it alleged, having acknowledged at the preliminary injunction hearing that it normally takes weeks for decisions to issue. Judge Richman dissented (Amazon.com Services LLC v. NLRB, No. 24-50761 (5th Cir. issued May 6, 2025, withdrawn and new opinion substituted on August 28, 2025)).

Union’s petition and two separate proceedings. In December 2021, the Amazon Labor Union (ALU) filed a petition with the NLRB to represent more than 8,000 Amazon employees at the company’s fulfillment center in Staten Island. The election was held on April 1, 2022, and a majority of the employees voted in favor of ALU.

The election resulted in two separate NLRB proceedings concerning the NLRB’s alleged interference with the union election, Case 29-RC-288020 (the “Election Case”), and Amazon’s alleged refusal to bargain with the union, Case 29-CA-318069 (the “Bargaining Case”).

Election case. On April 8, 2022, Amazon initiated the Election Case by filing 25 objections, alleging that ALU and the Regional Office had interfered with the conditions for a free and fair election. On March 31, 2022, the day before the election, the Regional Director—with approval from the General Counsel—sought an injunction ordering the immediate reinstatement of an employee Amazon had terminated almost two years earlier. That employee had filed a charge against Amazon in June 2020, and the NLRB’s Regional Office had issued a complaint against Amazon in December 2020. Amazon claimed that the General Counsel should have sought an injunction as soon as the Regional Office issued its complaint in December 2020, rather than waiting until the eve of the union election.

This allegedly “undermined the integrity of the April 2022 election that the [NLRB] was obliged to supervise neutrally.” Amazon thus sought to have the NLRB invalidate the election results and order a second election.

On January 11, 2023, however, the Region 28 Regional Director affirmed the Hearing Officer’s recommendation and certified ALU as the bargaining representative for Amazon’s Staten Island fulfillment center. On February 9, 2023, Amazon requested review of the decision, which the NLRB denied on August 29, 2024.

Bargaining case. Meanwhile, because of the election, ALU demanded that Amazon recognize and bargain with it, and then it filed a charge with the Regional Office, alleging refusal to bargain. On July 12, 2023, the Regional Director issued a complaint, which initiated the Bargaining Case. Then, on August 23, 2023, the General Counsel moved for summary judgment on the complaint, alleging that Amazon unlawfully refused to bargain with ALU until its objections were adjudicated. The General Counsel also sought an order directing Amazon to recognize and bargain with ALU, pay consequential damages as a “make-whole” remedy for certain Amazon employees, and transfer the Bargaining Case from the Regional Office to the NLRB itself.

Later that day, the NLRB granted the motion to transfer and issued a notice to show cause as to why the summary judgment motion should not be granted. On August 25, 2024, the day after the NLRB denied Amazon’s request for review in the Election Case, the NLRB issued an updated notice to show cause in the Bargaining Case. The updated notice instructed Amazon to file any supplemental opposition to the summary judgment motion on or before September 13, 2024. The NLRB later extended the deadline to September 27, 2024.

Lawsuit. On September 5, 2024, Amazon sued the NLRB in federal district court in Texas, requesting temporary, preliminary, and permanent declaratory and injunctive relief. It sought “[T]o avoid serious and irreparable harm that it will otherwise suffer from being subjected to unconstitutional administrative proceedings. Because the structure of the proceedings in NLRB Cases 29-CA-310869 and 29-RC-288020 violate the United States Constitution under Supreme Court and Fifth Circuit precedent, Amazon respectfully brings this action for declaratory and injunctive relief....” Amazon also requested that the district court “set a hearing for a preliminary injunction [and] issue a preliminary injunction,” but did not request that this hearing—or the requested relief—occur before a specific date.

Motion to transfer and TRO hearing. After it filed suit, Amazon asked the NLRB to administratively stay the Bargaining Case proceeding, but the NLRB refused. Then, on September 10, 2024, Amazon moved for a temporary restraining order and preliminary injunction. Amazon argued that it faced imminent and irreparable harm because, if the administrative proceedings went forward, “Amazon will lose its right not to undergo an unconstitutional proceeding.” Judicial review of its constitutional claims “would thus come too late to be meaningful.” Amazon informed the district court that the original deadline to file its supplemental opposition was September 13, but again, it did not request expedited relief from the district court. That same day, the NLRB moved to transfer the case to the Eastern District of New York.

The district court held a hearing on the motions to transfer and for temporary restraining order on September 24, 2024. At the hearing, Amazon acknowledged both that it had not filed its response in the Bargaining Case and that the NLRB “normally [takes] weeks” to issue a decision. It expressed its concern that “a ruling could issue as soon as we file a brief” because of the “relationship between [Amazon] and the NLRB.” Amazon also told the district court that “if the [Bargaining Case proceeding] goes forward after this Friday and [the NLRB] issues an order granting the summary judgment, then the constitutional issues... are mooted.” The NLRB, in turn, represented that “a period of months, generally, is about as quick as the board can act given its caseload.” Amazon did not request an expedited ruling or a ruling by its submission deadline, September 27. The district court requested supplemental briefing by September 27 and took both motions under advisement.

The “deadline.” On September 26, 2024, Amazon filed a letter brief with the district court “ahead of the 12:00 p.m. Central, September 27, 2024, deadline” to file its supplemental opposition to the summary judgment motion pending before the NLRB. In the district court, it re-urged its motion for injunctive relief and stated that it would be seeking emergency appellate relief unless the district court granted a temporary restraining order before its submission deadline, alleging that it would be “forced” to do so “given the imminence of a Board ruling in the underlying administrative proceeding.”

Alleged “constructive denial.” In response, the NLRB argued that Amazon had not established any of the necessary elements for an emergency temporary restraining order. The next day, Amazon noticed an appeal of the district court’s “constructive denial” of its motion for temporary restraining order and preliminary injunction.

No “constructive denial.” At issue is whether the district court constructively denied Amazon’s motion for a temporary restraining order and preliminary injunction. The Fifth Circuit found that it did not.

Amazon argued that the district court constructively denied its motion for a preliminary injunction by failing to rule on or before September 27, 2024, and that, as a result, it faced an injury that could not be undone—the NLRB “consummating a final order in its unconstitutional proceeding.” The appeals court was unpersuaded.

Diligence. The Fifth Circuit first considered Amazon’s diligence in seeking expedited briefing and consideration. Amazon, the appeals court observed, did not “[make it] clear from its first filing [on September 5, 2024] that the [final order] was going into effect on an unusually short timeline.” It instead “made clear” that the deadline to respond to the NLRB’s summary judgment motion was September 13—and then later September 27—and that a final order could be anticipated at some point after that deadline. And Amazon even acknowledged that the NLRB “normally [takes] weeks” to issue a decision.

In fact, Amazon “specifically requested a ruling” just once, approximately 24 hours before the September 27 deadline, despite several prior opportunities. And despite telling the court that “a ruling could issue as soon as we file a brief,” Amazon never made a specific request during the hearing for an expedited ruling—or even just a ruling—by September 27.

Legitimate basis. Amazon also failed to establish a legitimate basis for the alleged urgency, the Fifth Circuit found. Nothing indicated that the NLRB would—or even could—issue a decision that same day. In addition, Amazon acknowledged at the preliminary injunction hearing that it normally takes weeks for decisions to issue. The NLRB, for its part, stated that “a period of months, generally, is about as quick as [it] can act given its caseload.”

No subject-matter jurisdiction. At bottom, the appeals court found, “A litigant cannot ‘simply say they need an expedited ruling and then appeal by claiming effective denial when they do not get it on their preferred timeline.’” Here, Amazon neither diligently requested consideration by September 27 nor demonstrated a legitimate basis for the purported urgency, and the district court did not effectively deny the motion for injunctive relief in failing to rule on or before September 27. And because there was no effective denial, there was no interlocutory decision before the Fifth Circuit court under 28 U.S.C. § 1291(a)(1).

Amazon’s appeal was thus dismissed for lack of subject-matter jurisdiction.

Dissent. In her dissent, Judge Richman said she would hold that the district court effectively denied Amazon’s motion for a preliminary injunction. In her view, Amazon “made clear from its first filing that... [it] had an unusually short window of time” before it needed injunctive relief, which it “repeated” multiple times.

The case is No. 24-50761.

Judge: Ramirez, I.

Attorneys: Kurt G. Larkin (Hunton Andrews Kurth) for Amazon.com Services LLC. Tyler James Wiese for the NLRB.

Companies: Amazon.com Services LLC

Cases: Labor UnfairLaborPractices Procedure AgencyNews LouisianaNews MississippiNews TexasNews GCNNews