UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
CENTERLINE LOGISTICS CORP., et al.,
Plaintiffs,
Civil Action No. 26-cv-2773 (BAH)
v.
Judge Beryl A. Howell
UNITED STATES DEPARTMENT OF
LABOR, et al.,
Defendants.
MEMORANDUM OPINION
Centerline Logistics Corporation and its subsidiary Harley Marine NY, Inc. (collectively,
“plaintiffs”), are named respondents in a wrongful-termination administrative proceeding
underway within the Occupational Safety and Health Administration (“OSHA”), a component of
the United States Department of Labor (“DOL”), but now turn to this Court to halt that
proceeding, on constitutional grounds. Specifically, as plaintiffs in this suit, they allege the
OSHA proceeding is constitutionally deficient due to the lack of the right to trial by jury and to
factfinding by DOL administrative law judges who “are insulated by two layers of for-cause
removal protection” and do not permit issuance of third party subpoenas. See Compl. ¶¶ 2, 4, 14,
23, 25 ECF No. 1. Simultaneously with filing their complaint, id., plaintiffs filed the pending
Motion for Preliminary Injunction (“Pls.’ Mot.”), ECF No. 2, against defendants DOL, its Acting
Secretary, OSHA, its Assistant Secretary, and the DOL Administrative Law Judge overseeing
the OSHA proceedings, seeking, “to block an unconstitutionally structured administrative
proceeding that the Defendants are conducting against the Plaintiffs,” id. at 1. Plaintiffs request
a ruling on this motion “by September 4, 2026,” see id., to avoid the deadline eleven days later
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for the filing of dispositive motions in the OSHA proceeding, see Joint Status Report (“JSR”) at
2, ECF No. 9 (Plaintiffs’ Position).
Surprisingly, the United States Attorney’s Office for the District of Columbia (“USAODC”), in its representation of defendants in this case, has declined to propose a briefing schedule
on the pending motion for preliminary injunctive relief, or to file any formal opposition, on any
timetable that would complete such briefing by plaintiffs’ requested ruling date of September 4,
2026. Instead, the USAO-DC insists this case should “proceed to arguments on the merits.” Id.
at 4 (Defendants’ Position); see also id. at 2; Defs.’ Resp. to Order to Show Cause (“Defs.’
OTSC Resp.”) at 2, 5, 6, ECF No. 11. Under defendants’ proposed “expedited summary
judgment briefing schedule,” plaintiffs would file a motion for summary judgment on August 21,
2026, to become ripe on October 15, 2026, see id., during which time, without a stay of the
OSHA proceedings, plaintiffs would be subject to an administrative process allegedly causing
them irreparable injury, see JSR at 2 (Plaintiffs’ position: “If the OALJ proceedings are stayed or
continued, Plaintiffs will agree to the government’s proposed briefing schedule for summary
judgment in this action.”). In short, the USAO-DC, on behalf of defendants, has presented a
proposal for briefing on a wished-for motion not currently pending before the Court and thus
does nothing to address the motion that is pending. Judges must decide the motions presented to
them by the parties, however, even when the USAO-DC declines to participate in the briefing
because of a preference to respond to a motion it believes plaintiffs should have brought. That is
not the way litigation proceeds.
Regardless of defendants’ remarkable position in response to the pending motion for
preliminary injunctive relief, for the reasons explained more fully below, plaintiffs’ motion for a
preliminary injunction is DENIED.
2
I. BACKGROUND
The factual background and procedural history relevant to the pending motion are briefly
summarized below.
A. Factual Background
Plaintiff Centerline Logistics Corporation “is the parent company of [plaintiff] Harley
Marine NY, Inc. [(“HMNY”)], which employed Robert Gordon.” Pls.’ Mot. at 2 (citing Compl.
¶¶ 5, 31, 32). “HMNY services U.S. East Coast ports, including those located in New York
Harbor, Portland, and New England,” and “loads, transfers, and offloads heavy fuel oil to ships.”
Id. at 2 (citing Compl. ¶ 32). “On March 28, 2022, Gordon, then serving as the captain of the
Ernest Campbell, a tugboat in HMNY’s fleet, was terminated,” plaintiffs claim, “for performing
unauthorized welding on the vessel’s deck while fuel and vapors were present—specifically,
while the tug was connected to a loaded 60,000-barrel oil barge and was directly above the
tugboat’s fuel tanks.” Id. (citing Compl. ¶ 40). Following his termination, “[o]n September 23,
2022, Gordon filed a complaint with OSHA under the Seaman’s Protection Act (“SPA”)[, 46
U.S.C. § 2114,] claiming that he was wrongfully terminated by the Plaintiffs for reporting safety
violations to the [United States Coast Guard].” Id. at 3 (citing Compl. ¶ 42). Under this Act,
“[a] person may not discharge or in any manner discriminate a seaman because . . . the seaman in
good faith has reported or is about to report to the Coast Guard or other appropriate Federal
agency or department that the seaman believes that a violation of a maritime safety law or
regulation prescribed under that law or regulation has occurred.” 46 U.S.C. § 2114(a)(1)(A).
On May 8, 2024, DOL “determined that there was reasonable cause to believe that”
plaintiffs had “retaliated against Gordon for reporting safety concerns” and “ordered the
Plaintiffs to reinstate Gordon to his former position with back pay plus interest, compensatory
and punitive damages, and attorney fees.” Pls.’ Mot. at 3; Compl. ¶¶ 6, 44. On June 7, 2024,
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plaintiffs filed an objection to DOL’s preliminary order and requested a hearing. Compl. ¶ 45.
“The case was [then] assigned to a DOL Administrative Law Judge (“ALJ”) in the Office of
Administrative Law Judges (“OALJ”) for hearing and decision.” Id. ¶ 6. On June 11, 2024, the
DOL ALJ set a schedule for dispositive briefing in the administrative proceeding with a hearing
to follow on July 8, 2025, that “was rescheduled to March 31, 2026, and continued until October
6, 2026.” Pls.’ Mot. at 3. In the interim, the parties “have exchanged discovery and filed various
motions.” Id. On November 24, 2025, the DOL ALJ “denied subpoena power over third-party
witnesses and records.” Pls.’ Reply to Gov’t’s Resp. to O.S.C. (“Pls.’ Reply”) at 4, ECF No. 12;
see also Compl. ¶ 49. Plaintiffs identify this ruling as the “discrete trigger” resulting in the
initiation of this suit more than eight months later, see Pls.’ Reply at 4, less than six weeks before
dispositive briefing is due, see JSR at 2, and exactly two months before the administrative
hearing, see id.
B. Procedural Background
On August 6, 2026, more than two years after plaintiffs initiated the administrative
proceeding by filing an objection to DOL’s finding and preliminary order against them, they
filed the instant complaint, see Compl., and motion arguing that the proceeding is
unconstitutionally structured because DOL administrative law judges have removal protections
and are appointed by a board whose members also have removal protections, that the
proceedings violate Due Process because subpoenas are unavailable, and that “[p]laintiffs have a
right to a jury as factfinder in an Article III court to decide whether they are liable for wrongful
termination,” Pl.’s Mot. at 7; see id. at 4-5. Due to these alleged constitutional infirmities,
plaintiffs ask that this Court “act[] quickly to halt the unconstitutional agency proceedings.”
Id. at 5. As noted, plaintiffs request a ruling by September 4, 2026. Id. at 1.
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That same day the complaint and preliminary injunction motion were filed, the parties
were directed “to meet and confer and to submit by August 7, 2026, at noon, a proposed briefing
schedule on plaintiffs’ [ECF No. 2] Motion for a Preliminary Injunction.” Minute Order (Aug.
6, 2026) (emphasis supplied). The parties failed to agree on a briefing schedule. JSR at 1.
Plaintiffs proposed that defendants “agree to stay those [OSHA] proceedings pending resolution
of” the instant motion or else “Plaintiffs will immediately seek the stay directly from [the] ALJ.”
Id. In turn, defendants argued that “this case should proceed through summary judgment
process,” provided less than two pages of argument as to why plaintiffs have not satisfied the
irreparable-harm requirement requisite for a preliminary injunction, and concluded that “the
Court may sua sponte deny [plaintiffs’] motion for preliminary relief.” Id. at 2-4. Defendants
further stated that “[t]he Court will benefit from having those subject matter experts available to
participate in the briefing of these issues to the Court, but because of when Plaintiffs chose to
bring this suit during the height of summer, they—like many others—are away for multiple
weeks this month,” so “[m]oving the government’s briefing as proposed below will allow such
individuals to play a meaningful role in these proceedings.” Id. at 4. 1 Consequently, defendants
proposed a briefing schedule only on proposed cross-motions for summary judgment and not the
pending motion. See id.
With defendants’ refusal to participate in proposing a briefing schedule on the pending
preliminary injunction motion, on August 9, 2026, defendants were ordered to show cause “by
August 10, 2026, at 5 P.M., why their two page argument in the parties’ [ECF No. 9] Joint Status
Report, made without any reference to or effort to distinguish Axon Enterprise, Inc. v. FTC, 598
1
Defendants provided no citation for the remarkable proposition that preliminary injunctions seeking to assert constitutional rights may not be brought “during the height of summer” due to the limited availability of governmental subject-matter experts. To whatever degree this matter proves inconvenient for defendants to litigate on an emergency basis, defendants could have ameliorated any such difficulty by agreeing to stay the OSHA proceedings.
5
U.S. 175 (2023), and SEC v. Jarkesy, 603 U.S. 109 (2024), both of which are relied upon by
plaintiffs in their [ECF No. 2] Motion for a Preliminary Injunction, should be treated as
defendants’ complete response to plaintiffs’ motion for a preliminary injunction.” Minute Order
(Aug. 9, 2026). The next day, defendants submitted a five-page response, asserting that “[t]he
United States is entitled to reasonable opportunity to respond to the motion and, if the Court
determines that full briefing on the motion for preliminary relief should proceed, the United
States requests that it be afforded until August 27, 2026, to do so.” Defs.’ OTSC Resp. at 1.
Surprisingly, defendants claimed to have interpreted the August 6, 2026, order that the parties
propose a briefing schedule “on plaintiffs’ [ECF No. 2] Motion for a Preliminary Injunction,” id.
(emphasis supplied), “as indicating that the Court does not consider this case to be an emergency
requiring expedited briefing or adjudication, as a true emergency would require expedited
briefing,” id. at 2. This interpretation of the Court’s order as not requiring expeditious
treatment—perhaps because the word “expedited” was not expressly used—ignores the fact that
the parties’ proposed briefing schedule was to be submitted less than 24 hours after the filing of
the preliminary injunction motion, and purposely misconstrues the Court’s normal grant of an
opportunity for scheduling conferral among the parties as indicating a lack of urgency in
resolving the motion. In response to the Order to Show Cause, defendants for the first time
proposed August 27, 2026, to file an opposition and refused to propose a deadline for plaintiffs
to file a reply. See id. at 1 & n.1. Defendants’ proposal, had plaintiffs been provided the
standard one week to file a reply brief, would have left the Court with just twenty-four hours to
issue a decision before plaintiffs’ requested deadline, and thus was an obvious non-starter.
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Following this Court’s direction, see Minute Order (Aug. 9, 2026), plaintiffs timely filed
a reply in support of their motion for preliminary injunction on August 14, 2026, see Pls.’ Reply.
Plaintiffs’ motion for preliminary injunctive relief is now ripe for resolution.
II. LEGAL STANDARD
A preliminary injunction is “an extraordinary remedy that should be granted only when
the party seeking the relief, by a clear showing, carries the burden of persuasion.” Chaplaincy of
Full Gospel Churches v. England, 454 F.3d 290, 297 (D.C. Cir. 2006) (quoting Cobell v. Norton,
391 F.3d 251, 258 (D.C. Cir. 2004)). “To get a preliminary injunction the movant must show:
(1) ‘he is likely to succeed on the merits,’ (2) ‘he is likely to suffer irreparable harm in the
absence of preliminary relief,’ (3) ‘the balance of equities tips in his favor,’ and (4) issuing ‘an
injunction is in the public interest.’” Hanson v. District of Columbia, 120 F.4th 223, 231 (D.C.
Cir. 2024) (per curiam) (quoting Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008));
see also Winter, 555 U.S. at 20 (“A plaintiff seeking a preliminary injunction must establish that
he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of
preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the
public interest.”). Additionally, “the basis of injunctive relief in the federal courts has always
been irreparable harm,” Full Gospel Churches, 454 F.3d at 297 (quoting Sampson v. Murray,
415 U.S. 61, 88 (1974)), and “[a] movant’s failure to show any irreparable harm is therefore
grounds for refusing to issue a preliminary injunction, even if the other three factors entering the
calculus merit such relief,” id.
III. DISCUSSION
After waiting more than two years from the time they learned about the DOL hearing to
the time they initiated the instant suit and simultaneously sought a preliminary injunction,
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plaintiffs claim three bases for showing irreparable harm from being subject to DOL’s
administrative proceedings, namely, that this proceeding (1) deprives them “of their Seventh
Amendment right to have a jury as factfinder,” Pls.’ Mot. at 17; (2) subjects them to an
“‘illegitimate’ administrative proceeding overseen by an ‘illegitimate decisionmaker’ in violation
of their constitutional rights,” id.; and (3) deprives them “of their right to procedural due
process,” id. 2 Binding precedent is dispositive of this motion, which must be denied.
A. The Timing of the Instant Motion Presents at Least Two Independent
Reasons Undercutting Any Finding of Irreparable Harm
At least two aspects of the timing of plaintiffs’ motion for a preliminary injunction defeat
any finding of irreparable harm. First, by the time that plaintiffs commenced the instant suit,
they had known about the upcoming DOL administrative hearing for over two years. To excuse
this multi-year-long delay in seeking injunctive relief, plaintiffs maintain that the DOL ALJ’s
November 24, 2025, decision to preclude use of third-party subpoenas for the proceeding was the
“discrete trigger” resulting in initiation of this suit more than eight months later. Pls.’ Reply at 4.
Yet, plaintiffs do not allege or provide any excuse for waiting even this eight-month period
before filing the instant lawsuit, nor offer any explanation for why they waited until less than six
weeks before dispositive briefing was due in the DOL administrative proceedings. Notably, not
a single case cited by plaintiffs in either their motion or reply in support thereof is from this
intervening eight-month period, see Pls.’ Mot.; Pls.’ Reply, so developing caselaw offers no
excuse.
Such delay in and of itself presents an independently sufficient ground to deny injunctive
relief. See, e.g., Sierra Club v. EPA, 793 F. Supp. 3d 158, 165 (D.D.C. 2025) (RC) (“Plaintiffs’
2
Plaintiffs proffer “economic and reputational harms” as a fourth basis for irreparable harm, Pls.’ Mot. at 17, but clarify in reply that “[e]conomic harm is offered only as an additional basis for irreparable injury, arising from the unconstitutional proceeding itself—not as the foundation of Plaintiffs’ claim,” Pls.’ Reply at 2-3.
8
delay of around 100 days is similarly inexcusable. . . . Their ‘failure to act sooner undercuts the
sense of urgency that ordinarily accompanies a motion for preliminary injunctive relief and
suggests that there is, in fact, no irreparable injury.’” (quoting Citibank, N.A. v. Citytrust, 756
F.2d 273, 277 (2d Cir. 1985))); Jack’s Canoes & Kayaks, LLC v. Nat’l Park Serv., 933 F. Supp.
2d 58, 81 (D.D.C. 2013) (CKK) (“Plaintiff’s delay and its decision not to apply for the RFQ
undermine any argument that its injury is of ‘such imminence that there is a clear and present
need for equitable relief to prevent irreparable harm.’” (internal quotation marks omitted)
(quoting Brown v. District of Columbia, 888 F. Supp. 2d 28, 32 (D.D.C. 2012) (RJL)); Newdow
v. Bush, 355 F. Supp. 2d 265, 292 (D.D.C. 2005) (JDB) (“An unexcused delay in seeking
extraordinary injunctive relief may be grounds for denial because such delay implies a lack of
urgency and irreparable harm.”); see also Oakland Tribune, Inc. v. Chronicle Pub. Co., 762 F.2d
1374, 1377 (9th Cir. 1985) (“Plaintiff’s long delay before seeking a preliminary injunction
implies a lack of urgency and irreparable harm.”); Perdue Farms Inc. v. Su, Nos. 24-cv-477 &
24-cv-594, 2025 WL 338283, at *2 (E.D.N.C. Jan. 29, 2025) (“Delay in seeking preliminary
injunctive relief, which is designed to address a party’s ‘urgent need for the protection of [its]
rights,’ demonstrates an ‘absence of the kind of irreparable harm required to support a
preliminary injunction.’” (quoting Quince Orchard Valley Citizens Ass’n v. Hodel, 872 F.2d 75,
80 (4th Cir. 1989))).
Second, plaintiffs may still prevail at the DOL hearing, so any concrete injury beyond
having to participate in an administrative hearing, as to which plaintiffs have procedural and
structural objections, is too speculative to serve as a basis for irreparable harm. See Connecticut
v. Massachusetts, 282 U.S. 660, 674 (1931) (finding that injunctive relief “will not be granted
against something merely feared as liable to occur at some indefinite time in the future”); St.
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Croix Chippewa Indians of Wis. v. Kempthorne, 535 F. Supp. 2d 33, 36-37 (D.D.C. 2008) (RJL)
(“Unfortunately for plaintiff, however, its position is based entirely on pure speculation about
how the Department [of the Interior] will rule on the Part 151 determination, and ultimately, its
application. Such speculation is legally insufficient to constitute the irreparable harm necessary
to warrant injunctive relief.”); Ass’n of Flight Attendants-CWA v. Pension Benefits Guar. Corp.,
372 F. Supp. 2d 91, 101 (D.D.C. 2005) (ESH) (“Since at this time any decision as to termination
has yet to be made [by the Pension Benefit Guaranty Corporation], none of the above injuries is
sufficiently imminent to warrant a preliminary injunction.”); Perdue, 2025 WL 338283, at *3
(“In addition to a lack of urgency, [plaintiff] has failed to persuasively argue that any harm that it
suffers through the administrative proceedings would be irreparable [because,] [f]irst, the ALJ
may decide fully in [plaintiff]’s favor.”). Merely having to bear the cost of participating in an
administrative proceeding does not amount to irreparable harm. See John Doe Co. v. Consumer
Fin. Prot. Bureau, 849 F.3d 1129, 1135 (D.C. Cir. 2017) (“[T]he expense and disruption of
defending [oneself] in protracted adjudicatory proceedings” is not an irreparable harm.” (second
alteration in original) (quoting FTC v. Standard Oil Co. of Cal., 449 U.S. 232, 244 (1980))).
B. Plaintiffs’ Proffered Bases Do Not Amount to Irreparable Harm
Plaintiffs argue that their irreparable harm stems directly from the constitutional
deficiencies alleged in the structure of the administrative proceedings and the alleged
deficiencies in administrative procedures, but these arguments are unavailing.
1. Proceeding in Front of an ALJ with Removal Protections Is Not an
Irreparable Injury
Plaintiffs contend that they “are being subjected to ongoing harm due to an
unconstitutionally insulated ALJ” because “two layers of removal protection impermissibly
restrict presidential authority and so violate Article II.” Pls.’ Mot. at 12, 19 (capitalization
10
standardized). The D.C. Circuit has held “that being investigated by, or participating in a
proceeding before, an unconstitutionally appointed officer is not, without more, an injury that
necessitates preliminary injunctive relief.” Alpine Sec. Corp. v. FINRA, 121 F.4th 1314, 1334
(D.C. Cir. 2024). Plaintiffs acknowledge that Alpine precludes the argument that the removal
protections of the DOL administrative law judge serves as a basis for irreparable harm. See Pls.’
Reply at 3 (“But Plaintiffs’ Article II argument is only one of three of Plaintiffs’ asserted bases
for constitutional injury. Alpine and Meta [Platforms, Inc. v. FTC, 723 F. Supp. 3d 64 (D.D.C.
2024) (RDM),] are inapplicable to the other two bases . . . .”).
Plaintiffs’ repeated invocations of Axon Enterprise, Inc. v. FTC, 598 U.S. 175, 191
(2023), and its language that appearing before an unconstitutional adjudicative proceeding is a
“here-and-now injury,” does not change this calculus. See Pls.’ Mot. at 18-22 (citing Axon five
times). In that case, participants in administrative enforcement actions “initiated in the Securities
and Exchange Commission (SEC) and the Federal Trade Commission (FTC)” brought
“challenges [against] the constitutional authority of the agency to proceed” contending that both
“agencies’ administrative law judges (ALJs) are insufficiently accountable to the President in
violation of separation-of-powers principles.” Axon, 598 U.S. at 180. At issue was “whether
[federal] district courts have jurisdiction to hear those suits—and so to resolve the parties’
constitutional challenges to the Commissions’ structure,” the Supreme Court found, for
jurisdictional purposes, that “[t]he ordinary statutory review scheme does not preclude a district
court from entertaining these extraordinary claims.” Id. The D.C. Circuit has rejected the
precise argument plaintiffs raise here in reliance on Axon. In Alpine, the appellant argued that
“Axon held that being forced to participate in an unconstitutional agency proceeding necessarily
qualifies as irreparable harm supporting the issuance of a preliminary injunction,” but the D.C.
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Circuit reasoned that Axon “does not say that every agency proceeding already underway must
immediately be halted because of an asserted constitutional flaw.” 121 F.4th at 1335-36. The
D.C. Circuit’s analysis concluded that “Axon does not ‘clearly dictate a departure from circuit
law,’” id. at 1336 (quoting Bahlul v. United States, 77 F.4th 918, 926 (D.C. Cir. 2023)), because
“the [Supreme] Court did not speak to what constitutes irreparable harm for purposes of the
extraordinary remedy of a preliminary injunction,” id.
A host of other courts of appeals have reached the same conclusion as the D.C. Circuit in
Alpine, in decisions neither cited nor discussed by either plaintiffs or defendants before this
Court. For example, the Second Circuit recently provided analysis consistent with the D.C.
Circuit in a case involving a group of health care facilities and related affiliates that sought “a
preliminary injunction to halt proceedings against them before the National Labor Relations
Board,” on the basis that the ALJ overseeing the proceedings “was appointed by a Board that
lacked a quorum of lawfully appointed members” and had “two layers of statutory for-cause
removal protection” that, plaintiffs alleged, “unconstitutionally shielded the ALJ from removal
by the President.” Care One, LLC v. Nat’l Lab. Rel. Bd., 166 F.4th 335, 339 (2d Cir. 2026). To
establish irreparable harm, plaintiffs relied on Axon, which the Second Circuit rejected, citing the
Tenth Circuit’s reasoning that “the Supreme Court in Axon Enterprise identified ‘here-and-now
injury’ only to address the ‘strictly jurisdictional question’ of whether a litigant could challenge
ongoing administrative proceedings collaterally; the Court made no mention of ‘plaintiffs’
entitlement to preliminary injunctive relief.’” Id. at 345 (quoting Leachco, Inc. v. Consumer
Prod. Safety Comm’n, 103 F.4th 748, 758-59 (10th Cir. 2024)). In addition, the Second Circuit
explained that “the phrase ‘here-and-now injury,’ as used in Axon Enterprise, originated in Seila
Law LLC v. CFPB, 591 U.S. 197, 212 (2020),” which “was a case concerned with a party’s
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standing to pursue its claim, not a party’s entitlement to equitable relief on that claim.” Id.; see
Seila Law, 591 U.S. at 210-13. “It was in identifying standing (a requirement for jurisdiction)
that the Supreme Court there observed that when a removal provision ‘violates the separation of
powers it inflicts a here-and-now injury . . . that can be remedied by a court.’” Id. (quoting Seila
Law, 591 U.S. at 212).
The Second Circuit also relied upon Collins v. Yellen, 594 U.S. 220 (2021), which was
decided after Seila Law and in which the Supreme Court revisited its earlier language.
Specifically, in Collins, the Court clarified that “[w]hat 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,” but rather, “[w]e 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.” Collins, 594 U.S. at 258 n.24; see Care One, 166 F.4th at 345.
The Supreme Court concluded that this “holding on standing does not mean that actions taken by
such an officer are void ab initio and must be undone.” Collins, 594 U.S. at 258 n.24; see Care
One, 166 F.4th at 345. The Second Circuit explained that “[t]his clarifying limitation is properly
understood to inform the Court’s subsequent use of the ‘here-and-now injury’ phrase quoted
from Seila Law in Axon Enterprise.” Care One, 166 F.4th at 345.
The Second Circuit also thoroughly reviewed the analytical distinction between
challenges related to the appointment of an official and those related to that official’s
removability, noting that Collins “distinguished appointments challenges from removal
challenges, observing that while a ‘constitutional defect in the statutorily prescribed method of
[an official’s] appointment’ may render his actions void, there is ‘no reason to regard any of the
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actions taken by [a properly appointed officer] . . . as void’ by sole virtue of that officer’s
purportedly unconstitutional protection from at-will removal.” Id. at 346 (alterations in original)
(quoting Collins, 594 U.S. at 257-58). Thus, to establish “redressable injury from
unconstitutional removal protections, a party must show ‘that the agency action would not have
been taken but for the President’s inability to remove’ the relevant person.” Id. (quoting
Consumer Fin. Prot. Bureau v. L. Offs. of Crystal Moroney, P.C., 63 F.4th 174, 180 (2d Cir.
2023) (emphasis in original)). In other words, “to satisfy the irreparable harm requirement for
injunctive relief consistent with controlling precedent in this circuit, a party complaining of
unconstitutional removal protections must demonstrate—at a minimum—a likelihood that it is or
imminently will be subject to actions that would not have been taken but for the President’s
inability to remove the protected persons.” Id. at 348.
The Sixth Circuit, when confronted with a motion for a preliminary injunction to halt
proceedings in front of the NLRB, reached the same conclusions regarding Collins and Axon.
YAPP USA Auto. Sys., Inc. v. Nat’l Lab. Rels. Bd., No. 24-1754, 2024 WL 4489598 (6th Cir.
Oct. 13, 2024). As the Sixth Circuit explained, the Supreme Court in Collins “did not conclude”
that the “shareholders who challenged the removal protection scheme were automatically entitled
to relief,” but rather, “the shareholders needed to show that the unconstitutional removal
restriction—and not simply the agency’s actions—would ‘cause harm.’” Id. at *2 (quoting
Collins, 594 U.S. at 260). Thus, “a challenger ‘would need to show that the removal restriction
specifically impacted the agency actions of which they complain.’” Id. (quoting Calcutt v.
FDIC, 37 F.4th 293, 315 (6th Cir. 2022) (emphasis in original), rev’d on other grounds, 598 U.S.
623 (2023)). The Sixth Circuit then rejected that argument that the “harm of ‘being subjected to
unconstitutional agency authority’ was recognized in Axon Enterprise, Inc. v. FTC, 598 U.S. 175
14
(2023)” because “Axon ‘did not address issues of relief or injury,’” and so “Axon did not overrule
Collins.” Id. at *3 (citations omitted). Therefore, “a party challenging an agency’s removal
protection scheme is not entitled to relief unless that unconstitutional provision inflict[s]
compensable harm,” id. at *2 (alteration in original and internal quotation marks omitted)
(quoting Calcutt, 37 F.4th at 310), and that plaintiff’s “failure to satisfy the causal harm
requirement could mean that it is not likely to succeed on the merits or that [it] has not shown
that it will suffer irreparable harm,” so in either scenario that plaintiff “is not entitled to a
preliminary injunction,” id. at *3.
When considering a motion for a preliminary injunction to stop a proceedings within the
Consumer Product Safety Commission, the Tenth Circuit has reached the same conclusion,
stating succinctly that “Axon does not help [plaintiff] establish irreparable harm because Axon
did not address the issue of irreparable harm, or any other issue regarding entitlement to
injunctive relief” and that “[t]o establish harm under Collins, [plaintiff] would need to make a
showing that the challenged removal provisions actually impacted, or will impact, the actions
taken by the CPSC against it.” Leachco, Inc. v. Consumer Prod. Safety Comm’n, 103 F.4th 748,
757-58 (10th Cir. 2024). Therefore, the plaintiff was not entitled to a preliminary injunction
because plaintiff “ha[d] failed to make any showing that, but for the allegedly unconstitutional
removal provisions, the CPSC commissioners or [the ALJ] would have been removed, the CPSC
proceedings against it would not be occurring, or the proceedings would be different in any
way.” Id. at 757.
Finally, in Manis v. U.S. Department of Agriculture, No. 24-1367, 2025 WL 2389422
(4th Cir. Aug. 21, 2025) (per curiam), the Fourth Circuit rejected the argument that Axon
“mandates a finding of irreparable harm whenever a litigant is required to litigate in an allegedly
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unconstitutional structured agency proceeding,” explaining this argument is “incorrect” because
“Axon addressed only a distinct jurisdictional question—whether Congress intended to divest
district courts of jurisdiction they would ordinarily possess by requiring that parties instead
litigate their claims through agency proceedings,” id. at *3-4. Therefore, “critically, ‘the Court
[in Axon] did not speak to what constitutes irreparable harm for purposes of the extraordinary
remedy of a preliminary injunction.’” Id. at *4 (alteration in original) (quoting Alpine, 121 F.4th
at 1336). The Fourth Circuit reasoned that “[e]xtending the holding of Axon in this circumstance
would require a per se finding of irreparable harm whenever a plaintiff alleges constitutional
deficiency in a collateral proceeding challenging their subjection to an agency proceeding” and
declined to “make that leap.” Id.
In sum, the strong emerging consensus about the standard required to challenge a
removal restriction under Collins, is “that a litigant must demonstrate harm—i.e., that an
unconstitutional removal restriction affected the complained-of agency conduct—to be entitled
to relief.” SEC v. Musk, 826 F. Supp. 3d 35, 58 (D.D.C. 2026) (SLS) (collecting cases from the
“Fourth, Fifth, Sixth, Eighth, Ninth, and Tenth Circuits”). Consequently, to establish irreparable
harm, a party must demonstrate a likelihood that the removal restriction affected the agency
conduct. Plaintiffs here allege no such thing and thus have failed to make any showing of
irreparable harm from the alleged removal restriction.
2. Neither Plaintiffs’ Fifth or Seventh Amendment Arguments Amount to
Irreparable Injury
Plaintiffs also contend that they will suffer irreparable harm through deprivation “of their
Seventh Amendment right to have a jury as a factfinder” and their Fifth Amendment due process
right to be able to issue third-party subpoenas. Pls.’ Mot. at 17. The law has long been wellsettled in this Circuit that being subject to administrative proceedings, and the concomitant
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associated costs, does not constitute irreparable harm. See, e.g., Renegotiation Bd. v.
Bannercraft Clothing Co., 415 U.S. 24 (1974) (“Mere litigation expense, even substantial and
unrecoupable cost, does not constitute irreparable injury.”); Sears Roebuck & Co. v. NLRB, 473
F.2d 91, 93 (D.C. Cir. 1972) (“Irreparable harm cannot be established by a mere reliance on the
burden of submitting to agency hearings. This is a risk of litigation that is inherent in society and
not the type of injury to justify judicial intervention.”). At base, plaintiffs’ arguments concerning
the constitutionality of the proceeding amount to a claim of procedural injury due to the lack of a
jury as factfinder and the inability to subpoena witnesses, but “[a] chorus of federal courts,
however, has found that procedural injury, standing alone, cannot constitute irreparable harm.”
E. Band of Cherokee Indians v. U.S. Dep’t of Interior, No. 20-cv-757 (JEB), 2020 WL 2079443,
at *4 (D.D.C. Apr. 30, 2020) (collecting cases). “Rather, to shoulder its burden to obtain a
preliminary injunction, a litigant must show that the procedural harm is accompanied by a
‘concrete injury.’” Id. (quoting Fisheries Survival Fund v. Jewell, 236 F. Supp. 3d 332, 336
(D.D.C. 2017) (TSC)).
Plaintiffs’ cited cases to support the proposition that “[t]he D.C. Circuit has affirmed a
preliminary injunction where the plaintiff was likely to succeed on a due process claim and
would suffer irreparable harm absent relief,” Pls.’ Reply at 3 (citing, inter alia, Gordon v.
Holder, 721 F.3d 638 (D.C. Cir. 2013)), actually show why plaintiffs’ reliance on an alleged
deprivation of procedural protections to show irreparable injury fall far short here. One of the
cases cited for this proposition was subsequently vacated, a development unmentioned in
plaintiffs’ citation of the case. Pls.’ Reply at 3 (citing, inter alia, Parham v. District of
Columbia, 648 F. Supp. 3d 99 (D.D.C. 2022) (CKK), vacated, No. 22-cv-2481, 2023 WL
10151420 (D.D.C. May 15, 2024)). In another case cited by plaintiffs, Gordon v. Holder, 721
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F.3d 638 (D.C. Cir. 2013), the owner of a business selling tobacco products across state lines
sought a preliminary injunction to halt enforcement of a new statute that would “require him to
pay state and local taxes and ban him from sending his products through the U.S. mail,” asserting
that “the tax provisions violate the Due Process Clause and the Tenth Amendment and that the
mail ban runs afoul of the Due Process and Equal Protection Clauses,” id. at 641. The D.C.
Circuit found no abuse of discretion in the grant of the preliminary injunction because the statute
“threatened the existence of his business and violated his constitutional rights.” Id. at 653. Such
a ruling makes sense, as the D.C. Circuit has long held that “[r]ecoverable monetary loss may
constitute irreparable harm only where the loss threatens the very existence of the movant’s
business.” Wis. Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir. 1985). In this case, plaintiffs
have not established that the alleged deprivation of constitutional procedural protections would
result in monetary loss sufficient to threaten plaintiffs’ continued operation.
Likewise misplaced is plaintiffs’ reliance on SEC v. Jarkesy, 603 U.S. 109 (2024). See
Pls.’ Mot. at 6-10. By the time Jarkesy was considered by the Supreme Court, the administrative
proceedings at issue in that case had already concluded and, in any event, no preliminary
injunction had been issued. See Jarkesy, 603 U.S. at 119. Consequently, not surprisingly, the
Court nowhere addresses irreparable injury, let alone the requisite showing for preliminary
injunctive relief, and thus lends no support to the argument that an alleged Seventh Amendment
injury, without a concomitant concrete injury, can satisfy the irreparable injury requirement for a
preliminary injunction. In essence, plaintiffs are contending that the ALJ lacks the power to
serve as the factfinder in the upcoming DOL administrative proceedings to review the OSHA
order against plaintiffs. See Pls.’ Mot. at 19 (“Here, the Plaintiffs have a right to have a jury, not
an ALJ, act as the factfinder.”). The Supreme Court has reasoned that when an ALJ is
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improperly appointed, and thus is acting without power through a proceeding, “the ‘appropriate
remedy’ for an adjudication tainted with an appointment violation is a new ‘hearing before a
properly appointed official.’” Lucia v. SEC, 585 U.S. 237, 251 (2018) (quoting Ryder v. United
States, 515 U.S. 177, 183, 188 (1995)). Plaintiffs have not established why, should they lose on
the merits, a new proceeding in front of a jury would not remedy their injury. In other words,
plaintiffs have failed to show “harm that cannot be remediated if the court waits until the end of
litigation.” Li v. Blinken, No. 22-5266, 2023 WL 4044487, at *1 (D.C. Cir. June 16, 2023) (per
curiam).
* * *
Plaintiffs’ inability to establish irreparable harm is sufficient to preclude the emergencyrelief of a preliminary injunction. See Full Gospel Churches, 454 F.3d at 297 (“A movant’s
failure to show any irreparable harm is . . . grounds for refusing to issue a preliminary injunction,
even if the other three factors entering the calculus merit such relief.”); Brisk Ins. Servs. LLC v.
Fed. Crop Ins. Corp., No. 26-cv-842 (SLS), 2026 WL 875230, at *5 (D.D.C. Mar. 31, 2026)
(“[I]f a party fails to make a sufficient showing of irreparable injury, the court may deny the
motion . . . without considering the other factors.” (quoting Affinity Healthcare Servs., Inc. v.
Sebelius, 720 F. Supp. 2d 12, 15-16, 15 n.4 (D.D.C. 2010) (RMU) (citing CityFed Fin. Corp. v.
Off. of Thrift Supervision, 58 F.3d 738, 747 (D.C. Cir. 1995))). Accordingly, the remaining
factors need not be analyzed. Plaintiffs’ motion for a preliminary injunction is denied.
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IV. CONCLUSION
For the foregoing reasons, plaintiffs have not satisfied the requisite showing of
irreparable harm to be entitled to the requested emergency injunctive relief. An order consistent
with this Memorandum Opinion will be entered contemporaneously.
Date: August 18, 2026
BERYL A. HOWELL
United States District Judge
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