A major legal divide has emerged between two Texas federal district courts over how to handle unconstitutional National Labor Relations Board removal protections.
The central question is whether courts can sever the offending statutory provisions or must permanently enjoin NLRB unfair labor practice proceedings altogether.
In Aimbridge Employee Service Corp. v. NLRB, Judge Amos Mazzant held that the removal protections are severable, allowing the underlying unfair labor practice charge to proceed.
That ruling puts Aimbridge directly at odds with Aunt Bertha v. NLRB, where Judge Mark Pittman held the protections could not be severed and granted a permanent injunction halting NLRB proceedings.
The NLRB’s five-member Board enjoys statutory removal protections, with members removable by the President only “for neglect of duty or malfeasance in office.”
Administrative law judges face an additional layer of protection, requiring the NLRB to petition the Merit Systems Protection Board and establish “good cause” before any removal can proceed.
Because MSPB members themselves hold for-cause protection, NLRB ALJs are effectively shielded by two stacked layers of removal restrictions.
The constitutional question in Aimbridge was largely uncontested, with the NLRB declining to defend its own removal restrictions before the court.
Relying on the Fifth Circuit’s decision in SpaceX v. NLRB and the Supreme Court’s ruling in Trump v. Slaughter, Judge Mazzant declared both sets of removal protections unconstitutional.
Judge Pittman in Aunt Bertha had previously concluded that any fix to the stacked removal structure would require “reconstructing or legislating” rather than simple statutory severance.
Judge Mazzant rejected that view, finding severance of NLRB member protections straightforward by relying on the NLRA’s severability clause and the Supreme Court’s decision in Seila Law LLC v. CFPB.
The court also pointed to practical evidence, noting that the NLRA continued functioning after President Trump removed Board Member Gwynne Wilcox without cause and the Supreme Court stayed her reinstatement in Trump v. Wilcox.
On the ALJ question, Judge Mazzant chose to render NLRB ALJs “removable at will by the NLRB,” eliminating their good-cause protection entirely as the cleaner severance option.
The court cited the Supreme Court’s recognition in Free Enterprise Fund that judges may sever even when multiple provisions working together produce a constitutional violation.
Judge Mazzant also noted that before the Administrative Procedure Act was enacted, NLRB hearing examiners had no removal protections, undercutting arguments that severance creates a regime Congress never contemplated.
Having found severance available, the court ruled it remedied the injury “of being overseen by an unconstitutionally structured agency,” denying the permanent injunction as moot.
For employers, the Aimbridge ruling signals that winning on constitutional grounds may no longer be enough to stop NLRB unfair labor practice charges from moving forward.
The district court split between Aimbridge and Aunt Bertha could ultimately be resolved by the Fifth Circuit, which reserved the severability question in its earlier SpaceX decision.