UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

) NELSON MEDINA, ) ) Plaintiff, ) ) Civil Case No. 24-2401 (RJL) v. ) ) NATIONAL LABOR RELATIONS ) BOARD, et al., ) Defendants. ) ___ _ _ _ _ _ _ _ )

MEMORANDUM OPINIO N July _l_2__, 2025 [Dkt. #20; Dkt. #24]

This case challenges the constitutionality of the removal protections enjoyed by

National Labor Relations Board ("NLRB" or the "Board") Administrative Law Judges

("ALJs"). Plaintiff Nelson Medina ("plaintiff' or "Medina") filed unfair labor practice

charges with the NLRB and expects to have a hearing before an NLRB ALJ to adjudicate

those claims. Before a hearing could proceed, however, plaintiff filed suit against the

NLRB, its members, and an unnamed NLRB ALJ (together, "defendants"), alleging that

NLRB ALJs' multi-layered removal protections "violate the constitution's separation of

powers" and "prevent[] the exercise of Presidential authority over NLRB ALJs in violation

of Article IL" Am. Compl. [Dkt. #18] ,i,i 54-55. Plaintiff fears that without relief from

this Court, he "will have to have his [unfair labor] case heard by an unconstitutionally

1 unaccountable ALJ." Id. ,r 59. He therefore seeks "a declaration that the ALJ's removal

protections are unconstitutional." Id. at 3, 14-15.

Now before the Court are the parties' dispositive motions-defendants' motion to

dismiss and plaintiffs motion for summary judgment. See generally PI.'s Mot. for Summ.

J. ("Pl.'s MSJ Mot.") [Dkt. #20]; Pl.'s Mem. of P. & A. in Supp. of MSJ Mot. ("Pl.'s MSJ

Mem.") [Dkt. #20-1]; Defs.' Combined Rule 12 Mot. to Dismiss and Opp'n to Pl.'s MSJ

Mot. ("Defs.' MTD") [Dkt. #24]. For the reasons set forth below, I will GRANT

defendants' motion to dismiss and DENY AS MOOT plaintiffs motion for summary

judgment.

I. BACKGROUND

A. Statutory and Regulatory Background

The National Labor Relations Act ("NLRA") established the NLRB.

et seq. The NLRB consists of no more than five Board members appointed by the

President, with the advice and consent of the Senate, to five-year terms.

§ 153(a). Board

members "may be removed by the President, upon notice and hearing, for neglect of duty

or malfeasance in office, but for no other cause." Id.

The NLRB appoints ALJs, who adjudicate hearings in unfair labor practice cases.

See id. § 154;

, 102.34. ALJs may be removed "only for good cause

established and determined by the Merit Systems Protection Board [("MSPB")] on the

record after opportunity for hearing before the [MSPB]."

l (a). Members

of the MSPB, in tum, "may be removed by the President only for inefficiency, neglect of

duty, or malfeasance in office."

§ 1202(d).

2 While adjudicating hearings, NLRB ALJs have the authority to administer oaths,

grant applications for subpoenas, receive evidence, take or cause depositions to be taken,

hold settlement conferences, dispose of procedural motions, approve stipulations, and

make and file decisions.

(a)(l )-(13), 102.45. At the conclusion of a

hearing, the ALJ issues "a proposed report, together with a recommended order, which

shall be filed with the Board."

(c); see also

(a). "[I]f

no exceptions are filed within twenty days[,] ... such recommender order shall become

the order of the Board."

(c). "Any person aggrieved by a final order of

the Board ...may obtain a review of such order in any United States court of appeals ...."

§ 160(f).

B. Factual and Prncedural Bad ground

Plaintiff is employed by Savage Services Corporation in Wilmington, California.

,r Am. Compl. 19. In December 2023, he filed a charge with NLRB Region 21 alleging

that a union "violated the [NLRA] when it threatened [him] with a fine and termination for

failing to pay dues and fees without giving him the procedural protections required by the

Board." Id. ,r,r 5-6, 20. In February 2024, NLRB Region 21 issued a complaint and notice

of hearing to the union and scheduled a hearing before an ALJ for October 16, 2024. Id.

,r,r 6-7. Plaintiff believes that NLRB ALJs, including the one before which he was set to

appear, are unconstitutionally protected from removal, and thus he filed suit in this Court

in August 2024. See generally Compl. [Dkt. #1]. Along with his Complaint, he also filed

a motion for a preliminary injunction. See generally Pl.'s Mot. for a Prelim. Inj. [Dkt.#8].

3 However, before the Court could rule on the preliminary injunction, plaintiff filed

additional charges against the union, which caused the NLRB to suspend plaintiffs

scheduled hearing pending investigation of the new charges. Am. Compl. 17. Plaintiff

withdrew his motion for a preliminary injunction and the parties asked the Court to set a

schedule for filing amended pleadings and dispositive motions. See Pl.'s Unopposed Mot.

to Withdraw Prelim. Inj. Mot. and Joint Mot. to Set a Briefing Schedule [Dkt. #17]. The

Court entered the parties' requested schedule. Min. Order (Sept. 12, 2024).

Plaintiff filed his Amended Complaint on September 13, 2024. See generally Am.

Compl. He alleges that NLRB ALJs are unconstitutionally shielded from removal by

multiple layers of removal protections. Id. 11 49-62 (Count I). The Amended Complaint

asks the Court to declare the removal restrictions unconstitutional and, to the extent the

NLRB reschedules his hearing before an ALJ, preliminarily enjoin defendants from

conducting that hearing. See id. at 14-15; Pl.'s Status Report [Dkt. #19].

Plaintiff filed a motion for summary judgment in September 2024. See generally

Pl.'s MSJ Mot. In response, defendants filed both an opposition to summary judgment and

a separate motion to dismiss. See generally Defs.' MTD. The parties fully briefed the

motions. See generally Pl.'s Combined Opp'n to Defs.' Mot. to Dismiss and Reply to its

Opp'n to Summ J. ("Pl.'s Reply") [Dkt. #26]; Defs.' Reply in Supp. of Mot. to Dismiss

("Defs.' Reply") [Dkt. #27].

Defendants initially sought dismissal on multiple grounds, including an argument

that the removal protections are constitutional. See Defs.' MTD at 26-30. However, in

March 2025, defendants notified the Court that they "no longer rely[] on [their] previous

4 option is to proceed before the NLRB. It would be unfair to treat plaintiff as if he cherry­

picked among a choice of venues and then complained about the structure of that venue.

Instead, fairness dictates that if it can be avoided, plaintiff should not have to choose

between redressing his injury in an unconstitutional forum and not redressing his injury at

all. See Avila v. NLRB,

, at *16 (D.D.C. Mar. 19, 2025)

(Contreras, J.) ("The Court finds no authority for the notion that a plaintiff has a diminished

interest in constitutionally sound proceedings simply because he could have declined to

seek a remedy for his injury, and the NLRB cites none."). There is no indication that

Congress intended to create such a false choice for aggrieved parties when it implemented

the NLRB's review scheme.

I therefore find that plaintiff need not route his constitutional challenge through the

NLRB, as this Court has subject-matter jurisdiction to hear his claim.

B. Merits

Having dealt with the threshold issue of subject-matter jurisdiction under Rule

12(b)(l ), the next issue is whether plaintiffs Amended Complaint fails to state a claim

under Rule 12(b)(6). Defendants argue that plaintiffs claim is "fatally flawed" because

"[u]nder Collins v. Yellen,

(2021)," plaintiff has failed to show "that the

allegedly unlawful removal restrictions actually 'cause[d] harm' to him." Defs.' MTD at

17 ( quoting Collins,

). Plaintiff counters that the Collins harm requirement

does not apply here, as he only seeks declaratory relief. Pl.'s Reply at 8. Unfortunately

for plaintiff, defendants are correct and this case must be dismissed.

12 In Collins, the Supreme Court held that a statutory for-cause removal restriction

protecting the Directors of the Federal Housing Finance Agency ("FHFA") violated the

separation of powers.

. Despite finding the removal restriction

unconstitutional, the Supreme Court questioned what relief, if any, it could provide. See

. The Supreme Court reasoned that if the Directors were properly appointed,

there was no reason to automatically void all of their actions unless the plaintiffs were

harmed by the Directors remaining in place. See

. As the Supreme Court

explained:

Although the statute unconstitutionally limited the President's authority to remove the confinned Directors, there was no constitutional defect in the statutorily prescribed method of appointment to that office. As a result, there is no reason to regard any of the actions taken by the FHFA in relation to the third amendment as void.

The Supreme Court thus concluded that to unwind the unconstitutionally protected

Directors' actions, the plaintiffs needed to show harm. Here, the Supreme Court provided

a few examples, which together suggest that a plaintiff must allege some failed effort by

the President to remove an improperly protected official:

Suppose, for example, that the President had attempted to remove a Director but was prevented from doing so by a lower court decision holding that he did not have "cause" for removal. Or suppose that the President had made a public statement expressing displeasure with actions taken by a Director and had asserted that he would remove the Director if the statute did not stand in the way. In those situations, the statutory provision would clearly cause harm.

.

13 It was not enough for the Collins plaintiffs to argue that were it not for the removal

protections, "the President might have replaced one of the confirmed Directors who

supervised the" relevant conduct, "or a confirmed Director might have altered his behavior

in a way that would have benefited the shareholders."

(emphases added). The

Supreme Court thus remanded the case to the lower courts to determine whether the

plaintiffs had alleged sufficient harm.

3

Plaintiff here has not met the Collins harm requirement. There is no allegation that

the removal restrictions have thwarted the President from removing NLRB ALJs. Instead,

plaintiff asserts the harm is simply being "subject[] . .. to unconstitutional agency

authority," "a 'here-and-now' injury traceable to the structure of the NLRB and ALJ

,r removal restrictions." Am. Compl. 57. That is not sufficient under Collins. Plaintiff has

not alleged "that the President had attempted to remove [an NLRB ALJ] but was prevented

from doing so" or "that the President had made a public statement expressing displeasure

with actions taken by" an NLRB ALJ. See Collins,

. Therefore, the

Court cannot conclude that any NLRB ALJ before whom plaintiff would appear 1s

improperly in his or her position. This dooms plaintiffs separation of powers claim.

3 This harm requirement is separate from the injury required to establish standing. See Collins,

n.24 ("What we said about standing in Seila Law should not be misunderstood as a holding on a party's entitlement to relief based on an unconstitutional removal restriction. We held that a plaintiff that challenges a statutory restriction on the President's power to remove an executive officer can establish standing by showing that it was harmed by an action that was taken by such an officer and that the plaintiff alleges was void. But that holding on standing does not mean that actions taken by such an officer are void ab initio and must be undone." (citations omitted)). Instead, the Collins harm requirement is an element of a separation of powers challenge to removal protections. See Cortes v. NLRB, 2024 U.S. Dist.LEXIS 65196, at *16 ( D.D.C.Apr.10, 2024) (Boasberg, J.) ("The better way to understand this requirement, ... is as one element that plaintiffs must show to make out their constitutional claim against the Board Members' removal protections."); accord Avila,

, at *21-22.

14 Plaintiff urges the Court to distinguish his case from Collins because of the relief

sought. Collins dealt only with a request for retrospective relief and, according to plaintiff,

does not mandate a showing of harm in cases seeking only declaratory relief. Pl.'s MSJ

Mem. at 21-26; see Collins,

("[B]ecause the shareholders no longer have

a live claim for prospective relief, the only remaining remedial question concerns

retrospective relief." (citation omitted)).4

This proposed distinction between types of relief sought has been repeatedly

rejected by courts considering whether plaintiffs need to show harm to succeed in removal

protections cases. See Cortes v. NLRB,

, at *17-18 (D.D.C.

Apr. 10, 2024) ("As every court of appeals that has dealt with this claim has recognized, .

. . the Court's reasoning in Collins 'applies with equal force regardless of the relief

sought."' (citation omitted)); Avila,

, at *22 (rejecting the

argument that "Collins does not bar declaratory relief in separation-of-powers

challenges"); CFPB v. Law Offices of Crystal Moroney, P.C.,

(2d

Cir. 2023) ("[T]he Supreme Court's reasoning that an officer's actions are valid so long as

she was validly appointed applies with equal force regardless of the relief sought by the

party challenging the officer's actions."); Cmty. Fin. Servs. Ass'n ofAm. v. CFPB,

(5th Cir. 2022) ("Collins did not rest on a distinction between prospective and

4 The Amended Complaint does seek preliminary injunctive relief, but plaintiff has not filed a motion for a preliminary injunction because he does not have a hearing scheduled before an ALJ. See Am. Compl. at 14 (Request for Relief). Plaintiff explains that should a hearing be scheduled, he would move for a preliminary injunction to pause said hearing until he "secures a declaration that the ALJ's removal protections are unconstitutional."

,i 9; see also Pl. 's Status Report. As such, plaintiff currently seeks only declaratory relief, not injunctive relief.

15 retrospective relief."), rev'd on other grounds, 601 U.S.416 (2023); Calcutt v. FDIC,

(6th Cir. 2022) ("The Collins inquiry focuses on whether a 'harm' occurred

that would create an entitlement to a remedy,rather than the nature of the remedy,and our

detennination as to whether an unconstitutional removal protection 'inflicted harm'

remains the same whether the petitioner seeks retrospective or prospective relief ...."),

rev 'd on other grounds,

(2023); but see VHS Acquisition Subsidiary No. 7 v.

NLRB,

,100 (D.D.C. 2024) ("While the NLRB argues that [the plaintiff]

must show tangible harm traceable to the removal restrictions to be entitled to relief, that

requirement does not logically extend to declaratory relief.").

I find that the Collins harm requirement applies equally to claims for declaratory

relief as it does to claims for retrospective relief. Collins reflects a concern about treating

a properly appointed official as being improperly in his or her position when there is no

evidence that the President sought to remove that official. See

n.24

( declining to find that all actions taken by an officer improperly protected "are void ab

initio and must be undone"). This concern applies regardless of whether a plaintiff has

already appeared before an ALJ, or whether he or she will appear before an ALJ in the

future. If this Court could not retroactively unwind an ALJ's decision absent a showing

that the President sought to remove the ALJ,it is unclear why the Court could preemptively

prevent the ALJ from reaching that decision absent the same showing of harm. Creating

this type of two-tracked analysis would encourage lopsided results: It would require a

plaintiff to show harm to undo one action but would allow a plaintiff to prevent all future

action without having to show harm.

16 I therefore conclude that plaintiff was required to show that the removal restrictions

caused him harm, and that he failed to do so. This harm element is indispensable. As such,

plaintiffs Amended Complaint must be dismissed. 5 Dismissal will be without prejudice,

as plaintiff may be able to amend his pleadings to establish the requisite harm. See

Firestone v. Firestone,

(D.C. Cir. 1996) ("A dismissal with prejudice

is warranted only when a trial court determines that the allegation of other facts consistent

with the challenged pleading could not possibly cure the deficiency." (cleaned up)).

IV. CONCLUSION

For the reasons set forth above, I will GRANT defendants' motion to dismiss and

dismiss the Amended Complaint without prejudice. I will also DENY AS MOOT

plaintiffs motion for summary judgment. An Order consistent with the above

accompanies this Memorandum Opinion.

United States District Judge

5 I will not delve any further into the merits of plaintiffs separation of powers claim. Deciding this nettlesome constitutional issue when the Court knows that it cannot offer even declaratory relief would contravene the "longstanding principle of judicial restraint [which] requires that courts avoid reaching constitutional questions in advance of the necessity of deciding them." See Camreta v. Greene,

(2011) (quoting Lyng v. Nw. Indian Cemetery Protective Ass'n,

(1988)); see also Cortes,

, at *19-20 (declining to determine the constitutionality of removal protections before addressing the harm requirement because "if it is not necessary to decide more, it is necessary not to decide more" (quoting PDK Lab ys Inc. v. Drug Enforcement Admin.,

(D.C. Cir. 2004))); K & R Contrs., LLC v. Keene,

(4th Cir. 2023) ("[R]egardless of how we answer the constitutional question presented by the removal provisions,we would be required to deny the petition because K & R has not asserted any harm resulting from the allegedly unconstitutional statutes .. .. Consequently,we are constrained to avoid resolving that constitutional question in this case.").

17