Labor & Employment Law Daily Wrap Up, PROCEDURE—M.D. Tenn.: Employer denied preliminary injunction against NLRB in challenge to constitutionality of removal protections, (May 14, 2025)

By Ronald Miller, J.D.

The employer “would need to make a showing that because the NLRB members and ALJs are unconstitutionally shielded from removal by the President, this actually impacted, or will impact, the administrative proceedings against it.”

An employer was not entitled to a preliminary injunction to halt NLRB proceeding against it on the basis that Board members and administrative law judges are unconstitutionally protected from the purportedly plenary removal powers of the President, ruled a federal district court in Tennessee. Because the employer failed to show a strong likelihood of success on the merits of its claims or irreparable harm, the court determined that the employer had not clearly shown a need for injunctive relief (Meharry Medical College v. NLRB, No. 3:24-cv-01258 (M.D. Tenn. May 12, 2025)).

NLRB appointments. NLRB members are “appointed by the President by and with the advice and consent of the Senate,” and NLRB administrative law judges (ALJs) are appointed by the Board members. Once appointed, an NLRB member “may be removed by the President” only “for neglect of duty or malfeasance in office, but for no other cause.” An ALJ may be removed only if: (1) the Board brings an action to remove the ALJ; and (2) the Merit Systems Protection Board, an independent federal agency, determines that there is “good cause” for the removal.

Unfair labor practice charges. Meharry is a private medical school located in Nashville, Tennessee. It offers multiple residency programs within its School of Medicine, including a Psychiatry Residency Program. The plaintiff in this action is a former resident of the program who was not allowed to continue in the program because he did not meet certain mandatory requirements. The plaintiff responded by filing multiple unfair labor practice charges against Meharry alleging that it violated the NLRA.

On September 16, 2024, an NLRB regional director consolidated the cases. An administrative hearing before an ALJ was scheduled for January 25, 2025, later reset for May 13, 2025. Meharry alleged that the remedies sought in the consolidated complaint include requiring it to reinstate the plaintiff’s alumni email address and to make him whole for any foreseeable pecuniary harm he incurred as a result of Meharry’s conduct.

Challenge to removal protections. On October 21, 2024, Meharry filed this lawsuit against the NLRB, the NLRB General Counsel, NLRB members, and an ALJ. Meharry alleged that the procedures for removing NLRB members and ALJs are unconstitutional because they violate the President’s removal powers. It also alleged that the NLRB’s requested relief violated its Seventh Amendment right to a jury trial. Meharry sought a declaratory judgment finding that the NLRB’s ongoing administrative proceedings are unconstitutional and invalid.

Meharry sought a preliminary injunction to halt the NLRB proceeding, including the ALJ’s May 13, 2025 administrative hearing.

Preliminary injunction. In determining whether to issue a preliminary injunction, the court considers the following four factors: “(1) whether the movant has a strong likelihood of success on the merits; (2) whether the movant would suffer irreparable injury absent the injunction; (3) whether the injunction would cause substantial harm to others; and (4) whether the public interest would be served by the issuance of an injunction.” These factors are balanced against each other.

Likelihood of success on the merits. The court first addressed whether Meharry was likely to succeed on its claim that the removal protections for Board members and ALJs violate Article II of the Constitution. While the President’s plenary power to remove executive officers “is the rule, not the exception,” the Supreme Court has recognized two limited exceptions to this rule that allow Congress to prevent the President from removing certain executive officers without cause: (i) the “board member exception” and (ii) the “inferior officer exception.”

NLRB members. The board member exception (often referred to as the Humphrey’s Executor exception) permits “Congress to give for-cause removal protections to a multimember body of experts, balanced along partisan lines, that performed legislative and judicial functions and was said not to exercise any executive power.” And the inferior officer exception permits for-cause removal protections “for inferior officers with limited duties and no policymaking or administrative authority.” The relevant inquiry here is whether these exceptions apply to Board members or ALJs.

In Humphrey’s Executor, the Supreme “Court upheld a statute that protected the Commissioners of the [Federal Trade Commission (“FTC”)] from removal except for inefficiency, neglect of duty, or malfeasance in office.” The NLRB has the same “organizational features” as the FTC for purposes of the Humphrey’s Executor exception.

Here, the court joined the long list of district court cases finding that the Humphrey’s Executor exception applies to NLRB members because they “closely resemble[] the FTC Commissioners.” Thus, it was unlikely that Meharry will succeed on its claim that the for-cause removal protections for Board members are unconstitutional.

NLRB ALJs. With respect to the ALJs, the focus was on whether the inferior officer exception applies. “Congress can compel for-cause removal protections for inferior officers who have limited duties and no policymaking or administrative authority that could ‘impede the President’s ability to perform his constitutional duty.’”

In arguing that the inferior officer exception does not apply, Meharry relied on the Fifth Circuit’s ruling in Jarkesy v. SEC, 34 F.4th 446, 463–64 (5th Cir. 2022), which found that SEC ALJs were not entitled to for-cause removal protections under the inferior officer exception because they “exercise considerable power over administrative case records.” However, the court determined that it was bound by the Sixth Circuit’s ruling in Calcutt v. FDIC, 37 F.4th 293 (2022), rev’d on other grounds, 598 U.S. 623 (2023), which it read as not invalidating ALJ removal protections.

At any rate, “[e]ven if the removal protections of the NLRB Board members and ALJs are unconstitutional,” Meharry “is not automatically entitled to an injunction” unless it can make two additional showings. First, Meharry, as the “party challenging the constitutionality of [the NLRB’s] removal protection scheme,” must show that the removal restrictions caused it harm; it “cannot simply show that the [NLRB proceeding itself] caused—or will cause—harm.” Second, Meharry would need to make a “concrete showing... that the removal restriction[s] specifically impacted” the NLRB’s proceeding without relying on “‘vague, generalized allegations’ of harm.”

Seventh Amendment claim. The crux of Meharry’s Seventh Amendment claim was that the NLRA does not authorize legal relief, and therefore the NLRB is violating Meharry’s right to a jury trial by seeking remedies in the administrative proceeding including requiring Meharry to reinstate the plaintiff’s alumni email address and to make him whole for any foreseeable pecuniary harm he incurred as a result of Meharry’s conduct. Meharry is unlikely to succeed on this claim for the simple fact “that the Seventh Amendment right to a jury trial does not attach to NLRB proceedings.”

Irreparable harm. The court next found that Meharry had not demonstrated the requisite irreparable harm needed for a preliminary injunction. Meharry argued that “being subjected to unconstitutional agency authority” constituted irreparable harm that is “impossible to remedy once the proceeding is over.” The court concluded that such a “here and now injury” does not suffice as irreparable harm for an injunction. The causal-harm requirement also applies to irreparable harm, meaning Meharry cannot establish irreparable harm without demonstrating that the allegedly unconstitutional removal protections for Board members or ALJs “specifically impacted” (or made a difference in) the case. Meharry failed to make that showing here.

The court further found that Meharry had not demonstrated irreparable harm on its Seventh Amendment claim. Because “[a]n NLRB remedial order is not self-executing, Meharry will have an opportunity to challenge an adverse remedial award in the Sixth Circuit or D.C. Circuit, where it can contest the constitutionality of the damages being sought by the NLRB. Accordingly, this factor weighed against a preliminary injunction.

Balance of equities and public interest. Where, as here, the government is the party opposing injunctive relief, “the third and fourth elements for a preliminary injunction merge, and the Court must balance any harm with the public interest.” The court found that these factors were neutral at best. What mattered more is that Meharry failed to show a strong likelihood of success on the merits of its claims or irreparable harm, which minimized the public interest in granting a preliminary injunction under these circumstances.

Subject matter jurisdiction. The court’s “independent obligation to determine whether subject-matter jurisdiction exists” is a threshold issue that the court is required to resolve on motion or on its own. The parties submit that the court has subject matter jurisdiction over Meharry’s constitutional challenges to the Board member and ALJ removal protections, but they disagree about whether the court has jurisdiction over Meharry’s claim that the damages being sought by the NLRB deprive it of its Seventh Amendment right to a jury trial.

The court likely had subject matter jurisdiction over the removal-restriction claims because Meharry has alleged what the Supreme Court refers to as a “here-and-now injury” arising from allegedly unconstitutional removal restrictions. The Seventh Amendment issue was less clear, however, because at least two other courts in this circuit have suggested that Congress intended the NLRA to limit district court jurisdiction over the relief being sought by the NLRB in this case. The court need not resolve these issues, however, because it decided to deny Meharry’s motion for a preliminary injunction.

The case is No. 3:24-cv-01258.

Judge: Crenshaw, W., Jr.

Attorneys: Cameron S. Hill (Baker, Donelson, Bearman, Caldwell & Berkowitz) for Meharry Medical College. Marianne Bowers for NLRB.

Companies: Meharry Medical College

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