Amazon.com v. NLRB
U.S. Court of Appeals for the Fifth Circuit
Amazon.com v. NLRB, 136 F.4th 577 (5th Cir. 2025)
Amazon.com v. NLRB
Opinion
Case: 24-50761 Document: 172-1 Page: 1 Date Filed: 05/06/2025
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
May 6, 2025
No. 24-50761 Lyle W. Cayce
____________ Clerk
Amazon.com Services LLC,
Plaintiff—Appellant,
versus
National Labor Relations Board, A Federal
Administrative Agency; Jennifer Abruzzo, In her official
capacity as the General Counsel of the National Labor Relations Board;
Marvin Kaplan, Chairman, National Labor Relations Board, In his
official capacity as the Chairman of the National Labor Relations Board;
Marvin E. Kaplan, In their official capacities as Board Members of the
National Labor Relations Board; Gwynne A. Wilcox, In their official
capacities as Board Members of the National Labor Relations Board; David
M. Prouty, In their official capacities as Board Members of the National
Labor Relations Board,
Defendants—Appellees,
Teamsters Amazon National Negotiating Committee,
Intervenor.
______________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:24-CV-1000
______________________________
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Before Richman, Graves, and Ramirez, Circuit Judges.
Irma Carrillo Ramirez, Circuit Judge:
Amazon appeals the “constructive denial” of its motion for injunctive
relief from “being subjected to [two] unconstitutional administrative pro-
ceedings” before the National Labor Relations Board (“NLRB”). We DIS-
MISS this appeal for lack of subject-matter jurisdiction.
I
Amazon is a major online retailer that receives, sorts, and ships
products from warehouses called “fulfillment centers.” In December 2021,
the Amazon Labor Union (“ALU”) filed a petition with the NLRB to
represent more than 8,000 Amazon employees at the fulfillment center in
Staten Island, New York. 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”).
A
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 NLRB’s Regional Director—with approval from the General
Counsel—sought an injunction ordering the immediate reinstatement of an
employee that 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
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than waiting until the eve of the union election. This “undermined the
integrity of the April 2022 election that the [NLRB] was obliged to supervise
neutrally.” Amazon sought to have the NLRB invalidate the election results
and order a second election.
Amazon sought to transfer the case to a different, non-conflicted
region, and the General Counsel transferred the matter to Region 28, which
serves parts of Texas. On September 1, 2022, after a 24-day hearing, the
Region 28 Hearing Officer recommended that all of Amazon’s objections be
overruled. On January 11, 2023, 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.
B
Meanwhile, because of the election, ALU demanded that Amazon
recognize and bargain with it. It filed a charge with the Regional Office,
alleging that Amazon refused to recognize it or bargain with it as the exclusive
representative for the Staten Island employees. On July 12, 2023, the
Regional Director issued a complaint, which initiated the Bargaining Case.
On August 23, 2023, the General Counsel moved for summary
judgment on the complaint, alleging that Amazon violated the National Labor
Relations Act by refusing 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
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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.
C
On September 5, 2024, Amazon sued the NLRB in the Western
District of 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.
After it filed suit, Amazon asked the NLRB to administratively stay
the Bargaining Case proceeding, but the NLRB refused. On September 9,
2024, the district court informed Amazon that a local rule required that its
application for a preliminary injunction must be made in a separate motion.
Accordingly, 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
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too late to be meaningful.” See Axon Enter., Inc. v. FTC, 598 U.S. 175, 202
(2023). 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.
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.” In response,
the NLRB argued that Amazon had not established any of the necessary
elements for an emergency temporary restraining order. The next day,
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Amazon noticed the appeal of the district court’s “constructive denial” of
its motion for temporary restraining order and preliminary injunction.
While the current appeal was pending before this court, on September
29, 2024, the district court granted—but stayed—the NLRB’s motion to
transfer. 1 It also denied Amazon’s request for a temporary restraining order.
The district court explained that “Amazon has failed to establish a
substantial threat of irreparable harm if an injunction is not granted.”
Instead, “it predicates its claim based on a claim that the NLRB may depart
from precedent and require it to provide some form of compensation to
employees for their lost opportunity to engage in collective bargaining.”
“This is both speculative and unripe,” the district court found.
On September 30, 2024, a motions panel of this court administratively
stayed the proceedings before the district court and the NLRB and expedited
the matter to the next available merits panel.
II
At issue is whether the district court constructively denied Amazon’s
motion for a temporary restraining order and preliminary injunction.
Under § 1292(a)(1), this court has jurisdiction to review interlocutory
orders, including orders that refuse or dissolve injunctions. 28 U.S.C. §
1292(a)(1). This also includes orders that do not expressly refuse an injunction but have the “practical effect of doing so.” Carson v. Am. Brands, Inc.,450 U.S. 79, 83
(1981) (citing Gen. Elec. Co. v. Marvel Rare Metals Co.,287 U.S. 430, 433
(1932)).
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1
In its opening brief, Amazon contends that “[t]he district court lacked
jurisdiction to enter the order, and it has no effect on the appeal before the
Court.”
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III
Amazon argues that the district court constructively denied its motion
for a preliminary injunction by failing to rule on or before September 27,
2024; as a result, it faced an injury that could not be undone—the NLRB
“consummating a final order in its unconstitutional proceeding.” We
disagree.
“[W]hat counts as an effective denial is contextual—different cases
require rulings on different timetables.” In re Fort Worth Chamber of
Commerce, 100 F.4th 528, 535(5th Cir. 2024). “District courts have wide discretion in managing their docket, and they do not necessarily deny a motion by failing to rule on a parties’ requested timeline.”Id.
“Appeal cannot be achieved simply by asserting that the trial court has failed to act promptly as wished by a party seeking an injunction.”Id.
“There must be a legitimate basis for [any] urgency.”Id.
(citing 16 Charles Allen
Wright & Arthur Miller, Federal Practice & Procedure
§ 3924.1 (3d ed.)). Another consideration is the litigant’s “diligence in
seeking to expedite briefing and consideration,” such as whether it has made
“repeated requests for a ruling by a specific date.” Id.
In Fort Worth Chamber of Commerce, a group of business associations
sued the Consumer Financial Protection Bureau, challenging a new rule that
required them to print and distribute materials about credit card late fees to
customers and provide notice of mitigating changes by March 29, 2024. 100
F.4th at 531. On March 7, the associations moved to enjoin the rule and specifically requested an expedited ruling “within 10 days, or as soon as possible thereafter, to prevent irrecoverable harm.”Id.
at 531–32. The district court did not rule within 10 days and instead sua sponte requested briefing on venue on March 18.Id.
The next day, the associations again
specifically requested an expedited ruling and informed the court that they
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would understand the preliminary injunction to have effectively been denied
if it had not ruled by March 22. Id.Without ruling on the motion, the district court transferred the case to the District of Columbia on March 28.Id.
We held that the district court had effectively denied the motion for preliminary injunction because the associations demonstrated a legitimate basis for the urgency, i.e., “the unusually short timeline for complying with the rule.”Id. at 535
. They had also “repeatedly requested swift review,” including “repeated requests for a ruling by specific dates.”Id. at 534
.
A
We first consider Amazon’s diligence in seeking expedited briefing
and consideration. Id. at 535.
Here, Amazon 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.” 100 F.4th at 534. 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. Amazon even acknowledged
that the NLRB “normally [takes] weeks” to issue a decision.
Moreover, unlike the business associations in Fort Worth Chamber of
Commerce, Amazon did not “repeatedly request[] swift review.” 100 F.4th at
534. Amazon “specifically requested a ruling” just once, approximately 24 hours before the September 27 deadline, despite several prior opportunities. Seeid.
Amazon never made a specific request for an expedited briefing
schedule, an expedited hearing, or an expedited ruling in its filings. Amazon
emphasized in the hearing that it faced imminent and irreparable harm if the
NLRB issued an order granting summary judgment. But despite telling the
court that “a ruling could issue as soon as we file a brief,” Amazon never
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made a specific request during the hearing for an expedited ruling—or even
just a ruling—by September 27.
Indeed, Amazon failed to make this request even when specifically
asked for input about next steps and timing. Towards the end of the hearing,
the district judge expressed concern that, if he granted the motion to transfer,
Amazon could appeal his order, and “then we [would] just be back here with
more delay.” He point-blank asked, “[s]o what do I do here, Amazon?”
Despite this prompting, Amazon still made no specific request for a ruling by
September 27. 2 Moreover, before concluding the hearing, the district judge
said that he would allow the parties to file supplemental briefs by September
27. Even when presented with a supplemental briefing deadline that fell on
the date it purportedly needed a decision by, Amazon again failed to inform
the district court of its needs. Amazon did not object or otherwise state the
importance of an expedited decision; instead, it asked the district court
whether it wanted the briefing “by a particular time.” Amazon did not
request relief by a specific date—or even expedited relief—until its letter
brief dated September 26, in which it requested for the first time that the
district court rule on or before September 27. During oral argument, Amazon
was also unable to identify any other specific request for a ruling by this date.
Amazon has not shown that it acted diligently.
_____________________
2
In response to the district court’s question, counsel stated:
So, I guess a few options. One would be to grant the TRO to give yourself,
Your Honor, time to write and issue an order. But I think if you’re saying
your inclination is to transfer venue, which would result in you staying the
case for an appeal, I think a TRO or preliminary injunction does need to
be granted to, again, stop the NLRB from issuing an order in the
underlying case. Because if it goes forward after this Friday and issues an
order granting the summary judgment, then the constitutional issues again
are mooted.
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B
Amazon also failed to establish a legitimate basis for the alleged
urgency. See Fort Worth Chamber of Commerce, 100 F.4th at 535. September
27 was Amazon’s deadline to file its response to the summary judgment
motion in the Bargaining Case. Nothing indicated that the NLRB would—
or even could—issue a decision that same day. Amazon acknowledged at the
preliminary injunction hearing that it normally takes weeks for decisions to
issue; the NLRB stated that “a period of months, generally, is about as quick
as [it] can act given its caseload.”
Finally, this court has also considered the district court’s timeliness
in assessing urgency. Fort Worth Chamber of Commerce, 100 F.4th at 535(“[G]iven the issuers’ unusually short timeline for complying with the Final Rule or obtaining injunctive relief, the district court effectively denied the Chambers’ motion for a preliminary injunction by not promptly ruling on it and instead opting to hear an unrelated motion sua sponte.”Id.
(emphasis added)). See, e.g., United States v. Lynd,301 F.2d 818, 823
(5th Cir. 1962)
(finding effective denial where the district court conducted a merits hearing
on the injunction motion and the movant “proved without question” its
entitlement to relief, but the district court unduly delayed ruling on that
motion). Here, the district court issued its decision one business day after
supplemental briefing was complete, but by that point, Amazon had already
petitioned this court for relief.
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.” Fort Worth Chamber of Commerce, 100 F.4th at 535. Amazon
neither diligently requested consideration by September 27 nor
demonstrated a legitimate basis for the urgency. The district court did not
effectively deny the motion for injunctive relief in failing to rule on or before
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September 27. Because there is no effective denial, there is no interlocutory
decision before this court under 28 U.S.C. § 1291(a)(1). This appeal must be
dismissed for lack of subject-matter jurisdiction.
IV
Amazon’s appeal is DISMISSED for lack of subject-matter
jurisdiction under 28 U.S.C. § 1291(a)(1).
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Priscilla Richman, Circuit Judge, dissenting:
I would hold that the district court effectively denied Amazon’s
motion for a preliminary injunction, giving rise to our interlocutory appellate
jurisdiction. Because the court concludes otherwise, I respectfully dissent.
I
Under 28 U.S.C. § 1292(a)(1), we have jurisdiction over appeals from
interlocutory orders denying injunctive relief. 1 Litigants may also, in certain
circumstances, appeal an otherwise unappealable interlocutory order that
does “not in terms ‘refus[e]’ an ‘injunctio[n],’” but nonetheless has “the
practical effect of doing so.” 2 We have also “recognized that simply sitting
on a preliminary-injunction motion for too long can effectively deny it.” 3 In
constructive-denial cases, we require a showing that the practical or effective
denial “threatens ‘serious, perhaps irreparable[,] consequences’ and can be
effectively challenged only by immediate appeal.” 4 This showing serves as
“a safeguard against undue widening of the floodgates which currently keep
_____________________
1
28 U.S.C. § 1292(a)(1).
2
Carson v. Am. Brands, Inc., 450 U.S. 79, 83 (1981) (alteration in original)
(quoting Gen. Elec. Co. v. Marvel Rare Metals Co., 287 U.S. 430, 433
(1932)); see also Thomas ex rel. D.M.T. v. Sch. Bd. St. Martin Par., 756 F.3d
380, 384(5th Cir. 2014); Sherri A.D. v. Kirby,975 F.2d 193, 203-04
(5th
Cir. 1992); Roberts v. St. Regis Paper Co., 653 F.2d 166, 169-70 (5th Cir.
Unit B Aug. 1981) (collecting cases). See generally 16 Charles Alan
Wright & Arthur R. Miller, Federal Practice and
Procedure (Wright & Miller) § 3924.1 (3d ed. 2025)).
3
In re Fort Worth Chamber of Com., 100 F.4th 528, 533 (5th Cir. 2024); see
also Clarke v. Commodity Futures Trading Comm’n, 74 F.4th 627, 635 (5th
Cir. 2023); Davis v. Bd. of Sch. Comm’rs of Mobile Cnty., 318 F.2d 63, 64
(5th Cir. 1963); NAACP v. Thompson, 321 F.2d 199, 202 (5th Cir. 1963)
(citing United States v. Lynd, 301 F.2d 818, 822 (5th Cir. 1962)). See
generally 16 Wright & Miller § 3924.1 (3d ed. 2025).
4
Sherri A.D., 975 F.2d at 203(quoting Carson,450 U.S. at 84
).
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in proper bounds” our § 1292(a)(1) jurisdiction. 5 Amazon asserts that the
district court’s inaction effectively denied its motion.
II
We recently discussed how to “determine whether the district court’s
inaction . . . amounts to an ‘effective’ denial” in In re Fort Worth Chamber of
Commerce. 6 There, the plaintiff filed suit challenging a new administrative
rule two days after the agency finalized the rule. 7 The new rule required the
plaintiff to take steps toward compliance twenty-two days later. 8 The
plaintiff immediately moved for a preliminary injunction, expressly
requesting a ruling within ten days. 9 The district court did not rule within
ten days; instead, on the eleventh day, the court “sua sponte requested
briefing on venue.” 10 On the twelfth day, the plaintiff moved for expedited
review of its preliminary injunction motion and informed the court that if “it
did not receive a ruling by [the fifteenth day], it would understand its
preliminary injunction to be effectively denied and would accordingly seek
appellate review.” 11 The district court did not rule by the fifteenth day. 12 On
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5
Id.; see also Shanks v. City of Dallas, 752 F.2d 1092, 1096 (5th Cir. 1985)
(“The need to show such consequences is the result of the balance struck
by Congress in § 1292(a)(1) between the interests of the judiciary in
limiting expensive and wasteful piecemeal appeals and the interests of the
litigant in avoiding the immediate impact of interlocutory orders.”).
6
100 F.4th 528, 533 (5th Cir. 2024).
7
Id. at 532.
8
Id.
9
Id.
10
Id. (italics omitted).
11
Id.
12
Id.
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the eighteenth day—four days before the date for compliance—the plaintiff
appealed. 13
We concluded that the district court had effectively denied the
plaintiff’s motion for a preliminary injunction such that we had interlocutory
appellate jurisdiction. We reasoned that “a motion for preliminary injunctive
relief ‘must be granted promptly to be effective.’” 14 Accordingly, “[a]mong
the considerations when determining whether a district court has waited too
long to rule on a motion is ‘the urgency of preliminary relief as a means of
preserving the opportunity for effective permanent relief.’” 15 In this vein,
“[t]here must be a legitimate basis for the urgency.” 16 “Thus, whether a
district court fails to act promptly depends entirely on context.” 17 We also
emphasized that “[f]or its part,” the moving party “acted diligently.” 18
In Fort Worth, the plaintiff had a legitimate basis for urgency because
“the Final Rule’s fast-closing window for compliance demanded faster
review of the motion for a preliminary injunction.” 19 The plaintiff acted
diligently by filing suit within two days after the agency finalized the rule; by
“ma[king] clear from its first filing that . . . [it] had an unusually short
_____________________
13
Id.
14
Id. at 533 (quoting 16 Wright & Miller § 3924.1 (3d ed. 2025)); cf.
Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981) (“The purpose of a
preliminary injunction is merely to preserve the relative positions of the
parties until a trial on the merits can be held. . . . [H]aste . . . is often
necessary if those positions are to be preserved . . . .”).
15
Fort Worth, 100 F.4th at 534 (quoting 16 Wright & Miller § 3924.1
(3d ed. 2025)).
16
Id. at 535.
17
Id. at 534.
18
Id.
19
Id. at 535.
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window of time to comply” with the new rule; by specifically requesting a
ruling on its preliminary injunction motion within ten days; by making
“repeated requests for a ruling by specific dates”; and by requesting
expedited briefing. 20 Yet the district court failed to rule on the preliminary
injunction motion, but instead “g[a]ve its attention to” the venue issue. 21
This amounted to an effective denial of the motion for a preliminary
injunction.
III
These principles support appellate jurisdiction here. While some of
the operative facts differ in degree, “what counts as an effective denial is
contextual.” 22
A
Amazon had a legitimate basis for urgency in seeking preliminary
injunctive relief against the Bargaining Case. Impending summary judgment
in the Bargaining Case could moot Amazon’s district court claims,
precluding the district court’s ability to grant any relief. I am persuaded that
this would be “a ‘serious, perhaps irreparable, consequence’” that “can be
‘effectually challenged’ only by immediate appeal” from the district court’s
effective denial of Amazon’s motion. 23
Amazon’s constitutional objections to the Bargaining Case all allege
ongoing subjection to an illegitimate decisionmaker. While “[t]hat harm may
_____________________
20
Id. at 534.
21
Id.
22
Id. at 535.
23
Carson v. Am. Brands, Inc., 450 U.S. 79, 84 (1981) (quoting Balt.
Contractors, Inc. v. Bodinger, 348 U.S. 176, 181 (1955)).
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sound a bit abstract,” the Supreme Court “has made clear that it is ‘a here-
and-now injury’” that district courts have jurisdiction to redress prior to the
termination of an agency proceeding. 24 This injury is conceptually distinct
from an injury arising from an adverse agency order, which a party might
challenge—also on constitutional grounds—after the proceeding. 25
Importantly, the here-and-now injury “is impossible to remedy once the
proceeding is over” because “[a] proceeding that has already happened
cannot be undone.” 26
Amazon and the NLRB agree that the Board could grant summary
judgment against Amazon after the September 27 show-cause deadline,
including on that same day, 27 and the NLRB acknowledged in oral
arguments that “the administrative proceeding would likely have concluded
at that point had the Board addressed all issues in the case.” 28 In that event,
the “proceeding is over,” and it “cannot be undone.” 29 Post hoc “[j]udicial
review of [Amazon’s] structural constitutional claims”—framed as ongoing
subjection to an illegitimate decisionmaker—“would come too late to be
meaningful,” 30 and the district court would be unable to provide the relief
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24
Axon Enter., Inc. v. FTC, 598 U.S. 175, 191 (2023) (quoting Seila L. LLC
v. Consumer Fin. Prot. Bureau, 591 U.S. 197, 212 (2020)).
25
See id.
26
Id.
27
See Amazon Br. at 3-4; NLRB Br. at 19; see also ROA.558-59 (NLRB
counsel not contesting that the Board could issue a decision any time after
show-cause deadline); Oral Argument at 21:13-58 (NLRB counsel
contemplating effects if the Board had ruled on same day as show-cause
deadline).
28
Oral Argument at 21:42-58.
29
Axon, 598 U.S. at 191.
30
Id.
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Amazon requested in its complaint. That is exactly why “preliminary relief
[functions] as a means of preserving the opportunity for effective permanent
relief.” 31 Just as in Fort Worth a “fast-closing window for compliance
demanded faster review of the motion for a preliminary injunction,” a fast-
closing window before potential summary judgment in the Bargaining Case
demanded faster review here. 32
The majority opinion concludes that there was no legitimate basis for
Amazon’s urgency because there was no indication that the Board would
issue a decision on the same day as the show-cause deadline. 33 To be sure,
the parties dispute how quickly the Board would likely act after the show-
cause deadline, and there is admittedly no guarantee that the Board would
grant summary judgment against Amazon, thus ending the proceedings. But
the prospect that the Board could issue an adverse decision any time after the
show-cause deadline, as the parties agree was possible, presented a legitimate
basis for urgency. In reaching the opposite conclusion, the majority opinion
states that “Amazon acknowledged at the preliminary injunction hearing that
it normally takes weeks for decisions to issue.” 34 In context, however,
Amazon’s “acknowledgement” is far from any concession. The district
court asked, “[H]ow fast do you think the Board is going to issue a decision?”
Amazon responded:
This would certainly be a guess, although an educated one; but,
typically, in test of certification proceedings the rulings come
out fairly quickly, much quicker than in the normal course.
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31
In re Fort Worth Chamber of Com., 100 F.4th 528, 534 (5th Cir. 2024)
(quoting 16 Wright & Miller § 3924.1 (3d ed. 2025)).
32
Id. at 535.
33
Ante at 10-11.
34
Ante at 10.
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[The court then stated: “Give me timeframes.”] Normally
weeks, but given the posture of this case and sort of the nature
of the—what I’ll call the relationship between our client and
the NLRB, we believe that a ruling could issue as soon as we
file a brief. 35
Even if Amazon acknowledged that it “normally” takes weeks for decisions
to issue, Amazon argued that the NLRB would likely act faster than usual in
its case. Further, we cannot consider the fact that the Board has yet to render
a decision because a motions panel of this court administratively stayed the
Bargaining Case on September 30, preventing the Board from acting.
Similarly, although the district judge stated during the September 24
motions hearing that he intended “to try to get this [ruling on the motions]
out as soon as I can,” Amazon could not know how long the court would take,
or if the Board would grant summary judgment before the court could act.
Even though we now know that the district court issued a ruling on Amazon’s
request for a temporary restraining order (TRO) two days after Amazon
noticed its appeal, we must consider the context as it existed on September
27—the date on which Amazon had to file its response at the NLRB, thus
making ripe the General Counsel’s motion for summary judgment—not
September 29. On September 27, neither the district court nor Amazon
could know how long the Board would wait to issue a decision in the
Bargaining Case—two days, two weeks, two months, or longer. Accordingly,
I give little weight to the fact that the district court ruled on the motion two
days later. 36
Importantly, I do not see—and the majority opinion has not offered—
any principled way for us to determine whether the district court failed to
_____________________
35
ROA.558-59.
36
Contra ante at 10.
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“timely rule on [Amazon’s] preliminary-injunction motion” 37 other than by
tethering that inquiry to the show-cause deadline. Assume Amazon had not
noticed its appeal on September 27 and assume the district court did not
eventually act on September 29. How long after the show-cause deadline
would have been too long of a delay by the district court? At what point could
Amazon have invoked our interlocutory appellate jurisdiction on an effective-
denial theory? After the show-cause deadline arrived, no one could know,
other than the NLRB, when the Board intended to issue a decision that could
moot Amazon’s district court claims. What was certain was that the Board
could issue a ruling after the show-cause deadline, at its convenience.
Amazon’s basis for urgency was all the more legitimate given that the
Board had the power to moot Amazon’s claims against the NLRB. To moot
those claims, the Board only had to render an adverse order quickly against
Amazon disposing of all the issues in the Bargaining Case. It is notable that
the Board apparently declined requests to defer its proceedings. According
to Amazon, “[i]mmediately after filing suit, [it] asked the Board to
administratively stay the [Bargaining Case],” but “[t]he Board refused.”
Only after the district court on September 10 scheduled the motions hearing
for September 24 did the Board on September 11 extend the initial show-
cause deadline to September 27—thus setting the deadline after the district
court’s hearing on both Amazon’s motion and the NLRB’s motion to transfer.
Amazon represented to the district court after the motions hearing that it
“again requested” that the Board stay the Bargaining Case, but the “Board
[was] unwilling to do so.” Even the district court at the motions hearing
asked the NLRB why it was not “just agreeing to stay a decision until all this
is handled.” The NLRB responded: “Because the agency obviously has an
_____________________
37
Fort Worth, 100 F.4th at 533.
19
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No. 24-50761
interest in continuing its orderly processes.” But that is exactly the point:
the Board’s continuing its orderly processes, which no doubt is a legitimate
interest, could moot Amazon’s district court claims. That potential outcome
provided Amazon’s legitimate basis for urgency in seeking preliminary relief.
B
The moving party also must act diligently. While Amazon was
arguably less diligent here than the moving party in Fort Worth, Amazon’s
efforts in this context were sufficient.
Amazon filed suit on September 5—just six days after the Board
issued its second notice to show cause in the Bargaining Case—seeking
declaratory and permanent injunctive relief. Although the Bargaining Case
had begun a little more than a year prior, there was minimal action in the
Bargaining Case while the related Election Case proceeded; in fact, Amazon
had argued in response to the Board’s first notice to show cause that the
Board could not resolve issues in the Bargaining Case until it completed the
Election Case. The Board denied review of the Election Case on August 29,
2024, and issued its second notice to show cause in the Bargaining Case on
August 30. Amazon had little reason to challenge the effectively paused
Bargaining Case until the Election Case ended, and Amazon promptly sued
once it did.
Amazon’s complaint also requested a TRO and a preliminary
injunction against the Bargaining Case. The complaint did more than merely
make clear “that the deadline to respond to the NLRB’s summary-judgment
motion was September 13.” 38 Rather, Amazon emphasized that its “need for
a temporary restraining order is imminent and dire because the NLRB may
_____________________
38
Ante at 8.
20
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issue an order in [the Bargaining Case] any time on or after September 13,
2024.” Amazon also requested that the court “set a hearing for a preliminary
injunction, and, after a properly noticed hearing, issue a preliminary
injunction.”
On September 9, the court advised Amazon that a local rule required
submitting an application for temporary or preliminary relief in a separate
motion. Amazon filed its motion for a TRO and preliminary injunction on
September 10. Amazon’s motion reiterated the urgency it had raised in its
complaint, emphasizing that “Amazon must file any supplemental
opposition to the original Notice to Show Cause on or before Friday,
September 13, 2024” (bold, italics, and underline in original). 39
Both the September 5 complaint and September 10 motion made clear
that Amazon’s show-cause deadline was (initially) September 13, after which
the Board would be poised to issue a ruling on the General Counsel’s
summary judgment motion, potentially mooting Amazon’s district court
claims. Amazon repeatedly emphasized the (postponed) September 27
show-cause deadline at the September 24 motions hearing, even stating at
one point that it “want[ed] the TRO today.” 40 At the end of the hearing,
Amazon represented that “a TRO or preliminary injunction does need to be
granted to, again, stop the NLRB from issuing an order in the” Bargaining
Case “[b]ecause if it goes forward after this Friday and issues an order
granting the summary judgment [motion], then the constitutional issues
again are mooted.” 41 Finally, Amazon’s September 26 letter brief told the
_____________________
39
ROA.83.
40
ROA.548.
41
ROA.611-12.
21
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district court that Amazon would consider its motion effectively denied on
September 27. 42
In my view, these facts show that 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. 43 I accept that Amazon
failed until September 26 to state expressly that it would consider its motion
“effectively denied” when the show-cause deadline arrived on September
27. But it was indisputably clear from the earlier filings that Amazon, if it
were entitled to preliminary injunctive relief, needed a ruling before the
show-cause deadline, after which the Board’s action could leave Amazon’s
alleged injury “impossible to remedy.” 44 The NLRB argues that Amazon
tried “to impose a decisional deadline with barely one day’s notice.” Yet
even the district court commented at the motions hearing that Amazon was
“asking [it] to make a major decision on two weeks’ notice.” Given this
statement by the district court, I cannot agree with the majority opinion’s
conclusion that Amazon “failed to inform the district court of its need[]” for
a ruling by the show-cause deadline until just one day before that deadline. 45
Ironically, whatever doubt there might have been from Amazon’s
failure to repeat some apparently talismanic phrase earlier, the NLRB’s
September 10 transfer motion made clear that “Amazon can claim that its
motion for injunctive relief has been ‘effectively denied,’ . . . [on] Friday,
September 13,” 46 which was the then-operative show-cause deadline. While
_____________________
42
ROA.508-09.
43
In re Fort Worth Chamber of Com., 100 F.4th 528, 534 (5th Cir. 2024).
44
Axon Enter., Inc. v. FTC, 598 U.S. 175, 191 (2023).
45
Ante at 9.
46
ROA.157.
22
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the NLRB’s brief in this court characterizes this concession as a suspicion
“that Amazon might seek to manufacture an effective-denial argument,” the
concession at the very least makes clear that the parties and district court
understood by September 10 that Amazon was seeking relief before the
Board-imposed show-cause deadline.
The majority opinion faults Amazon for failing to object at the motions
hearing when the district court set the supplemental briefing deadline at noon
on September 27. 47 I do not believe this means Amazon failed to act
diligently. Amazon had repeatedly made clear—including, by my count, five
times earlier during that very hearing—that it needed relief by the show-
cause deadline. 48 Our decision in Fort Worth does not require that Amazon
have repeated its need for relief yet again.
I do not mean to criticize the district court. “District courts have wide
discretion in managing their docket,” and “plaintiffs cannot simply say they
need an expedited ruling and then appeal by claiming effective denial when
they don’t get it on their preferred timeline.” 49 Amazon asked the court to
consider complex constitutional issues on an accelerated timeline, which no
doubt placed great pressure on the court. Notably, unlike in Fort Worth—
_____________________
47
Ante at 8-9.
48
ROA.548 (“[W]e do want the TRO today, Your Honor.”), 558-59
(“[O]ur filing is due this Friday, the 27th. . . . [W]e believe that a ruling
could issue as soon as we file a brief.”), 586 (“The order could issue at any
time after we file our motion for summary judgment.”), 595 (“[I]f the
Board issues a decision in the [Bargaining C]ase, the claims on our lawsuit
are mooted. That’s the emergency.), 611-12 (“I think a TRO or
preliminary injunction does need to be granted to, again, stop the NLRB
from issuing an order in the underlying [Bargaining C]ase. Because if it
goes forward after this Friday and issues an order granting the summary
judgment, then the constitutional issues again are mooted.”).
49
In re Fort Worth Chamber of Com., 100 F.4th 528, 535 (5th Cir. 2024).
23
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No. 24-50761
where the district judge sua sponte directed his attention to another matter
entirely—the judge here took some action on Amazon’s motion by
scheduling a hearing and eventually denying the TRO after Amazon
appealed. We have declined jurisdiction where the district court has done far
less because “mere inaction is not an order refusing injunctive relief, and is
not appealable.” 50 But at bottom, there was limited time in which
preliminary relief could preserve the district court’s ability to grant
meaningful permanent relief, assuming Amazon was entitled to either. Given
that legitimate basis for urgency, as well as Amazon’s relative diligence
pursuing its precise claims and the uncertainty as to what would transpire
(and when) after the show-cause deadline, I believe the principles in Fort
Worth support interlocutory appellate jurisdiction here.
* * *
For these reasons, I would exercise interlocutory appellate
jurisdiction to reach the merits of Amazon’s appeal. Because the court
instead dismisses the appeal for lack of jurisdiction, I respectfully dissent.
_____________________
50
Overton v. City of Austin, 748 F.2d 941, 951 (5th Cir. 1984).
24
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