Fifth Circuit Affirms Preliminary Injunction in NLRB Case

If you’ve ever wished you could hit “pause” on a stressful meeting invite, you already understand the vibe of a
preliminary injunction. In August 2025, the U.S. Court of Appeals for the Fifth Circuit
did exactly thataffirming three separate preliminary injunctions that temporarily stopped the
National Labor Relations Board (NLRB) from continuing ongoing unfair-labor-practice proceedings against
SpaceX, Energy Transfer, and Findhelp.

The headline is legal and serious, but the concept is pretty relatable: the court agreed that forcing companies to go
through agency proceedings that may be unconstitutional can create an injury that can’t be neatly undone later.
And when judges start talking about injuries you can’t “Ctrl+Z,” you know things are getting spicy (in the most
paperwork-heavy way possible).

This article breaks down what happened, why it matters, and what the decision could mean for employers, unions,
workers, and the NLRB itselfwithout burying you in Latin phrases or pretending anyone enjoys reading footnotes for
fun (some people do, but they’re built different).

What the Fifth Circuit Actually Did (and Didn’t)

The short version

The Fifth Circuit affirmed preliminary injunctions entered by three Texas federal district courts.
Those injunctions halted NLRB administrative proceedings against the three employers while the courts
consider constitutional challenges to how the NLRB is structuredespecially how difficult it is for a President to
remove (1) NLRB Board Members and (2) NLRB Administrative Law Judges (ALJs).

What it didn’t do

This was not a final ruling that permanently dismantles the NLRB or definitively resolves every
constitutional question. A preliminary injunction is an early-stage, “hold uplet’s not make this worse” remedy.
Still, courts don’t grant (or affirm) preliminary injunctions lightly; doing so requires findings about things like
likely success on the merits and irreparable harm.

Quick Refresher: How NLRB Unfair Labor Practice Cases Usually Work

To understand why “removal protections” even matter, it helps to know the NLRB’s basic enforcement pipeline:

• Charge and investigation: Someone (often an employee, union, or employer) files a charge; the NLRB
  investigates.
• Complaint: If the agency believes a violation occurred, it issues a complaint and the case goes to
  a hearing.
• ALJ hearing and initial decision: An NLRB ALJ hears evidence and issues an initial decision.
• Board review: The five-member NLRB Board can review the ALJ’s decision.
• Court of appeals review: Final Board orders can end up in federal appellate court.

In other words: ALJs and the Board are not “background characters.” They are the main cast in the NLRB’s adjudicative
processso if their insulation from presidential oversight is unconstitutional, that’s not a small technical glitch.
That’s a structural problem.

Why This Case Turned on “Removal Protections”

The constitutional fight here centers on Article IIthe part of the U.S. Constitution that vests
executive power in the President. A big theme in modern separation-of-powers cases is
accountability: if an official wields executive power, how insulated can they be from removal by the
President?

Board Members: removable only for “neglect of duty or malfeasance”

Under federal statute, NLRB Board Members may be removed by the President only “for neglect of duty or malfeasance in
office,” and not for any other reason. That kind of “for-cause” protection is a classic feature of “independent”
agencies.

ALJs: the “two layers” issue

ALJs are also protected. By statute, an ALJ can be disciplined or removed only for “good cause” determined by the
Merit Systems Protection Board (MSPB) after a record hearing. Add the fact that MSPB members
themselves have removal protections, and you get what critics call two layers of insulation between
the President and the ALJ.

The Fifth Circuit’s opinion frames this as a serious Article II problem: ALJs are “inferior officers” who exercise
significant governmental authority, yet they’re shielded by a removal structure that (according to Supreme Court
precedent) can go too far.

A notable twist: the NLRB’s shifting position

One eye-catching detail: the opinion notes that, after these suits were filed, the NLRB informed the court it was no
longer relying on prior arguments defending the constitutionality of the multiple layers of ALJ removal protections
and was no longer relying on prior arguments that Board member tenure protections are constitutionalwhile still
pressing other arguments (like Norris-LaGuardia and irreparable harm).

Translation: even the agency recognized the legal ground under parts of its position had gotten shaky. That doesn’t
automatically decide the case, but it’s not nothing.

The Threshold Fight: Could District Courts Even Hear These Claims?

Before anyone gets to the constitutional merits, there’s a gatekeeping question: did federal district courts have
jurisdiction to step in mid-stream and halt administrative proceedings?

The Fifth Circuit said yesrejecting the NLRB’s arguments that the district courts lacked authority to enjoin ongoing
Board proceedings.

The NLRB’s Norris-LaGuardia argument

The NLRB argued the Norris-LaGuardia Act strips federal courts of jurisdiction to issue injunctions in
cases “involving or growing out of a labor dispute,” except under strict statutory requirements. This law is famous
for curbing injunctions that historically crushed labor activity.

The Fifth Circuit’s opinion addresses that jurisdictional challenge head-on and ultimately rejects it in this context,
concluding the statute does not bar these district court suits seeking to enjoin allegedly unconstitutional agency
proceedings.

Thunder Basin factors + the Supreme Court’s Axon roadmap

The court also analyzed whether Congress implicitly channeled these kinds of challenges into the NLRB’s administrative
process (with judicial review only at the end). That analysis commonly uses the
Thunder Basin factors and was sharpened by the Supreme Court’s decision in
Axon Enterprise v. FTC.

In plain English, the questions look like this:

• Meaningful review: If you force the party to wait until the end of the agency process, will judicial
  review come too late to fix the harm?
• Wholly collateral: Is the challenge separate from the merits of the agency dispute (i.e., about the
  tribunal’s structure rather than who wins the case)?
• Agency expertise: Is the issue outside what the agency is especially qualified to decide?

The Fifth Circuit concluded these factors favored district court jurisdictionespecially because the employers were
challenging the NLRB’s authority to proceed at all, not simply disputing a particular labor-law outcome.

Why the Fifth Circuit Upheld the Injunctions

A preliminary injunction usually turns on four familiar factors:
(1) likelihood of success on the merits, (2) irreparable harm, (3) balance of equities, (4) public interest.
The Fifth Circuit agreed the district courts acted within their discretion in granting relief.

1) Likelihood of success: ALJs and Board members

The opinion states the ALJ issue is the clearer part: ALJs are insulated by two layers of for-cause removal protection,
and Supreme Court and Fifth Circuit precedent has treated that kind of arrangement as unconstitutional.

As for Board Members, the court explained precedent is “less definitive,” but also emphasized modern doctrine has
cautioned against extending older cases (like Humphrey’s Executor) beyond their specific contextespecially to agencies
that are not true “mirror images” of the FTC as it was understood in 1935.

2) Irreparable harm: the “can’t be undone” idea

One of the most practically important parts of the opinion is its treatment of harm. Courts are often skeptical when a
party claims “litigating is hard” as irreparable harm. But the Fifth Circuit treated the injury here as something
different: being subjected to allegedly unconstitutional proceedings can be a structural injury that isn’t fully cured
by winning later.

Put simply: if the forum is unconstitutional, you don’t fix that by saying, “Well, you can appeal after you’ve already
been dragged through it.”

3) Balance of equities and the public interest

The court acknowledged the government’s argument that stopping enforcement harms the public interest. But it concluded
that, in this posture, the equities and public interest aligned with preventing allegedly unlawful exercises of power.
That theme“the Constitution doesn’t countenance unlawful power”runs through the decision.

So What Now? Practical Implications for the Real World

For employers

The decision is a roadmap (at least within the Fifth Circuit’s orbit) for employers facing NLRB complaints to consider
structural constitutional argumentsespecially if they want to seek early judicial intervention rather than waiting for
the administrative process to conclude.

But a word of caution: what works in one circuit might face a colder reception elsewhere. Subsequent reporting and
commentary show growing disagreement among circuits over whether statutes like Norris-LaGuardia bar these kinds of
injunctions and how far Axon extends.

For unions and workers

Delays are the immediate consequence. When enforcement proceedings are paused, remedies are paused toobackpay,
reinstatement, notice postings, and other common outcomes can be delayed while structural questions move through
federal court.

There’s also a strategic layer: unions and employees may need to plan for longer litigation timelines and consider
parallel approaches (for example, strengthening documentation, preparing for extended discovery, or negotiating
solutions that don’t depend entirely on agency timelines).

For the NLRB

The agency faces a hard problem: if courts increasingly entertain structural challenges mid-proceeding, the NLRB’s
ability to adjudicate cases quickly can be disrupted. That puts pressure on policymakers toobecause some structural
issues, if ultimately confirmed by higher courts, may require congressional fixes.

Where This Could Go Next: The Supreme Court Factor

If you follow administrative law even casually (or you just enjoy watching agencies sweat), you’ve probably noticed a
trend: separation-of-powers challenges are having a moment. Axon is a big part of that story because it green-lit
district court jurisdiction for certain structural constitutional challenges before agency proceedings end.

Add in the fact that other circuits have been wrestling with similar NLRB challengessometimes reaching different
conclusionsand you get the classic recipe for Supreme Court review: circuit disagreement + national impact.
Whether that review comes through an NLRB case, an FTC/SEC-style case, or a different agency fight is the kind of legal
suspense that only lawyers and insomnia enjoy. But the direction of travel is clear: these issues aren’t going away.

Practical Takeaways (Not Legal Advice)

1. Know what “preliminary” means: The Fifth Circuit affirmed a pause, not a permanent end. Don’t treat
   this like the final episode.
2. Expect forum fights: Jurisdiction and Norris-LaGuardia arguments are not side queststhey’re often
   the main battle.
3. Plan for delay: If you’re a worker or union seeking relief, build a timeline that accounts for
   constitutional litigation detours.
4. Document everything: Whether you’re an employer defending actions or an employee challenging them,
   the underlying facts still matterespecially if the case eventually resumes at the NLRB.
5. Talk to counsel early: These are high-stakes, fast-evolving issues. Strategy depends on jurisdiction,
   posture, and the specific claims at issue.

Experiences From the Trenches: Living Through an NLRB “Pause Button” Moment

Let’s talk about the human side of this, because “structural constitutional litigation” sounds like something you’d
order at a fancy restaurant and immediately regret. In reality, when a court pauses an NLRB proceeding, real people
feel itoften in ways that don’t show up in headlines.

If you’re an HR leader, the first emotion is usually not triumph. It’s a complicated cocktail of
relief and dread. Relief, because you’ve been staring down hearing dates, witness lists, and the gnawing worry that
every email from 2022 is about to become Exhibit A. Dread, because a pause doesn’t mean peaceit means uncertainty.
The case is still out there like a movie villain who “totally fell off the cliff” but will obviously return in the
sequel. You start asking practical questions: Do we preserve documents longer? Do we keep managers trained on the same
playbook? What do we say internally without sounding like we’re spiking the football?

If you’re in-house counsel, this kind of ruling turns your calendar into a choose-your-own-adventure
novel. One day you’re prepping for an ALJ hearing; the next you’re coordinating constitutional briefing, monitoring
related circuit decisions, and explaining to business stakeholders why “winning a preliminary injunction” is not the
same thing as “we’re done here.” You also have to translate the legal stakes into business risk: reputational impact,
employee relations, potential backpay exposure if the case resumes, and how all of this plays with investor or board
expectations. And yes, you’ll say the phrase “this is not a merits decision” so many times it will lose all meaning.

If you’re a worker who filed the charge, the pause can feel like the system just put your life on
hold. The facts that mattereddiscipline, termination, retaliation, workplace conflictdon’t evaporate because a court
is debating removal protections. You may still be looking for a new job, trying to pay rent, or wondering whether
speaking up was worth it. That’s why delays sting: labor cases aren’t abstract. They’re about paychecks, benefits,
reputations, and dignity. A pause can also create emotional whiplash: hope (the process is moving) followed by
frustration (now it’s not).

If you’re a union representative, you’re managing both the legal timeline and the organizing
timeline. Workers want answers nowbecause workplaces are lived in real time. You may pivot to bargaining strategies,
public pressure campaigns, or internal organizing efforts while the legal process slows down. You also have to keep
morale steady, especially if opponents spin the pause as “proof nothing happened.” Maintaining momentum while the case
crawls is an underappreciated skill.

And here’s the weird part: sometimes a pause creates space for resolution. When everyone realizes the case could take
years, settlement conversations can become more realistic. Not always. But occasionally the “constitutional thunderstorm”
clears just enough air for practical problem-solvingbecause nobody actually wants to live inside litigation forever.
(Except maybe printers. Printers live for this.)

Sources Consulted (names only; no links)

1. U.S. Court of Appeals for the Fifth Circuit Space Exploration Technologies Corp. v. NLRB (Aug. 19, 2025)
2. National Labor Relations Board “Decide Cases” overview of ALJ and Board review process
3. Reuters coverage of Texas district court injunctions in NLRB structure challenges (2024)
4. Reuters coverage of circuit split developments involving NLRB structural challenges (2025)
5. U.S. Supreme Court Axon Enterprise, Inc. v. FTC (2023)
6. U.S. Supreme Court / U.S. Reports Free Enterprise Fund v. PCAOB (2010)
7. Cornell Law School Legal Information Institute statutory text for Norris-LaGuardia Act and NLRB removal statute
8. Ogletree Deakins analysis of the Fifth Circuit decision
9. Littler analysis of the Fifth Circuit decision
10. Benesch analysis of the Fifth Circuit decision
11. OnLabor (Harvard) commentary on the decision and broader litigation trend
12. Holland & Knight discussion of dual removal protections and Article II challenges

Conclusion

The Fifth Circuit’s decision affirming preliminary injunctions in these NLRB cases is a big deal not because it ends
the story, but because it changes the pacing. It signals that, at least in some courts, structural constitutional
challenges to agency adjudication are not “wait your turn” issuesthey can be urgent enough to justify hitting pause
before the administrative machine finishes its work.

For employers, it’s a potential strategy tool. For workers and unions, it’s a reminder that timelines can stretch.
For the NLRB, it’s another chapter in a wider national debate about how independent agencies fit inside the modern
separation-of-powers framework. And for everyone else? It’s proof that in American law, sometimes the most dramatic
conflicts are about who can fire whom.

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