In VHS Acquisition Subsidiary No. 7 v. NLRB, the U.S. District Court for the District of Columbia ruled that the National Labor Relations Board (NLRB) may remove its administrative law judges (ALJ) for any reason. The case arose as part of a Massachusetts hospital’s defense against unfair labor practice charges. The NLRB had assigned the matter to one of its ALJs, and the hospital tried to stop the proceeding by seeking a temporary restraining order. The hospital argued that the enforcement action violated the U.S. Constitution.
Although the hospital’s arguments did not result in a temporary restraining order or a preliminary injunction, the District Court has now ruled that the job protections afforded to NLRB ALJs are unconstitutional.
As of today, the NLRB judges could be removed from their positions by the NLRB only if the Merit Systems Protection Board (MSPB) establishes good cause for the removal and the NLRB adopts the MSPB’s decision. The MSPB officers themselves can only be dismissed by the president for limited reasons — “inefficiency, neglect of duty, or malfeasance in office” — and NLRB members can only be dismissed “for neglect of duty or malfeasances in office.” Effectively then, the president could remove an NLRB ALJ only by convincing the MSPB to find cause and convincing the NLRB to adopt the MSPB’s findings, but the president’s hands are tied in dealing with the MSPB and the NLRB by the limitations on the president’s authority to fire the board members.
The court ruled that these protections of NLRB judges is unconstitutional because, under the Constitution, the executive authority must have the authority to remove subordinates at will. Only with this authority can the president “adequately control and direct his officers.” Consequently, under the order issued by the court, the NLRB may take any action against one of its ALJs for any reason and without reference to the MSPB.
The court in this case disagrees with three circuit courts. The Sixth, Ninth, and Tenth circuits have all ruled that the fact that ALJs in other agencies exercise judicial functions means the ALJs may be insulated from direct employment actions. Here, the court disagreed, finding the ALJs are “powerful actors in the Executive Branch” of the government.
The immediate effect of this ruling on the hospital’s case is unclear. The hospital cannot simply have the ALJ dismissed. Only the NLRB may take that action. The long-term effect of this ruling however would be that NLRB ALJs are more subject to job-related pressure from the NLRB, even as the members of the NLRB change with Presidential administrations. The case remains subject to appeal.
Case No. 1:24-cv-2577 (TNM) (D.D.C. Dec. 10, 2024.)
