Unions Beg The US Supreme Court to Silence the Fifth Circuit, but They Should Be Careful What They Wish For
On October 31, 2025, the OPEIU asked the U.S. Supreme Court to review a Fifth Circuit ruling that allows employers to block NLRB proceedings simply because Board members and ALJs have potentially unconstitutional removal protections—even without showing any actual harm.
This approach conflicts with decisions from the Second, Third, Fourth, Sixth, Tenth, and D.C. Circuits, which have held (or strongly suggested) that injunctive relief requires a showing of real, compensable harm, consistent with existing Supreme Court precedent.
The union’s petition asks the Supreme Court to resolve this widening circuit split and clarify the correct standard:
* Must plaintiffs show concrete harm caused by removal protections?
* Or is merely being subjected to proceedings before officials with contested removal protections enough to justify an injunction?
Most circuits seem to go against the Fifth Circuit on this issue. But does one circuit standing alone require an immediate overruling? If so, then the Supreme Court should rein in the Ninth Circuit for upholding Thrvy remedies in the face of other circuits rejecting them.
On October 31, 2025, the OPEIU asked the U.S. Supreme Court to review a Fifth Circuit ruling that allows employers to block NLRB proceedings simply because Board members and ALJs have potentially unconstitutional removal protections—even without showing any actual harm.
This approach conflicts with decisions from the Second, Third, Fourth, Sixth, Tenth, and D.C. Circuits, which have held (or strongly suggested) that injunctive relief requires a showing of real, compensable harm, consistent with existing Supreme Court precedent.
The union’s petition asks the Supreme Court to resolve this widening circuit split and clarify the correct standard:
* Must plaintiffs show concrete harm caused by removal protections?
* Or is merely being subjected to proceedings before officials with contested removal protections enough to justify an injunction?
Most circuits seem to go against the Fifth Circuit on this issue. But does one circuit standing alone require an immediate overruling? If so, then the Supreme Court should rein in the Ninth Circuit for upholding Thrvy remedies in the face of other circuits rejecting them.