NLRB Endures Nursing Home’s Constitutional Attack in 2d Cir. (1)

A federal appeals court in Manhattan rejected a nursing home operator’s attempt to freeze a long-running National Labor Relations Board case based on alleged constitutional defects with the agency’s in-house judges.

Care One LLC failed to show it would suffer the type of irreparable harm necessary to stop the NLRB case based on its claim that administrative law judges’ removal protections violate the US Constitution, the US Court of Appeals for the Second Circuit ruled Thursday.

The decision emphasizes the circuit split on whether a challenger must show that an allegedly unconstitutional provision actually affected an agency’s decision or conduct.

The Second Circuit and at least three other courts—the Third, Sixth and Tenth circuits—have held that the US Supreme Court’s 2021 decision in Collins v. Yellen creates that causal harm requirement. Only the Fifth Circuit has ruled otherwise in its 2025 decision that halted NLRB cases against SpaceX and two other companies.

Judge Reena Raggi, a George W. Bush appointee, authored the opinion. Judges Myrna Pérez and Maria Araújo Kahn, both Biden appointees, joined the ruling.

Pérez said in a concurring opinion that administrative law judges’ job shields are constitutional. Of the four appeals courts to rule on agency judges’ removal protections, only the Fifth Circuit has found they run afoul of the Constitution in a 2022 decision, she said.

Care One sued the NLRB in 2023 to block a case dating back to 2012, when agency lawyers accused it of unlawfully locking employees out and refusing to reinstate them after a lawful strike. That case has been delayed by a bankruptcy proceeding, the Covid-19 pandemic, and other issues.

In addition to its constitutional claim, the company argued the administrative law judge who presided over its unfair labor practice case proceedings was improperly appointed in 2012 because the NLRB lacked a quorum at the time.

But even if ALJ Kenneth Chu’s appointment showed a likelihood of causing irreparable harm justifying a preliminary injunction, Care One isn’t entitled to such an order because it no longer faces that risk, the Second Circuit said.

“Care One is not now, and will never again be, before ALJ Chu in any NLRB proceedings, as he has now retired from the agency,” Raggi wrote for the court.

Care One was represented by Kasowitz Benson Torres LLP. The NLRB was represented by agency lawyers.

The case is Care One, LLC v. NLRB, 2d Cir., No. 23-7475, 2/5/26.