Claimed Urgency & Effective Denials of Injunctions
In Amazon.com Services LLC v. NLRB, the Fifth Circuit split over whether a party could appeal from the district court’s delay in deciding a preliminary-injunction motion. The would-be appellant sought to enjoin an order that it file a brief in an NLRB proceeding. When the deadline for that brief arrived, the district court had not yet decided the injunction motion. A majority of the Fifth Circuit thought that the underlying matters were not sufficiently urgent to treat this delay as an effective denial. Judge Richman dissented, arguing that the matters were sufficiently urgent. And she raised an interesting question about how courts should determine when a the arrival of a sought-to-be-enjoined deadline amounts to an effective denial.
The Requested Injunction in Amazon
Simplifying a bit, Amazon.com stemmed from the unionization of employees at an Amazon fulfillment center in New York. Amazon apparently refused to recognize and bargain with the union, which resulted in the union filing a charge against Amazon with a regional office of the National Labor Relations Board. The NLRB then ordered Amazon to show cause as to why summary judgment should not be ordered against it.
About three weeks before Amazon’s response was due, it sued in the Western District of Texas, arguing that the NLRB proceedings were unconstitutional. Amazon asked the district court to preliminarily enjoin the NLRB proceedings against it. But Amazon did not ask that a hearing on a preliminary injunction. Nor did it ask the district court to decide on an injunction before a specific date or seek an expedited decision.
The day before Amazon’s response was due in the NLRB proceedings, it filed a letter brief with the district court seeking injunctive relief and warning that, absent a decision before Amazon’s deadline, Amazon would seek emergency appellate relief. The district court did not rule before Amazon’s deadline the next day, and Amazon appealed to the Fifth Circuit. The next day, the district court denied a temporary restraining order.
The Split on an Effective Denial
The denial of a preliminary injunction is immediately appealable under 28 U.S.C. § 1292(a)(1). The question in Amazon was whether the district court had “constructively denied” Amazon’s motion. The majority held that there was no effective denial.
Part of the majority’s reasoning looked to Amazon’s conduct. Amazon did not make clear from the outset any need for urgency. Nor did Amazon repeatedly request a swift decision. Amazon asked for an expedited decision only 24 hours before Amazon’s deadline and appeal.
The majority also thought that there was no need for urgency. The date by which Amazon demanded a decision was merely the due date for a brief Amazon would file in the NLRB proceedings. A decision in the NLRB proceedings would not likely come for weeks or months. So Amazon did not face any imminent harm.
Finally, the majority noted that the district court acted quickly, issuing a decision only one day after briefing was complete.
Judge Richman dissented. She thought that Amazon acted with sufficient diligence. And she also contended that Amazon had a legitimate basis for urgency. Amazon was trying to avoid a decision from (in its view) a constitutionally illegitimate decisionmaker. So the proceeding itself—not just filing a brief—was the harm that Amazon sought to avoid. And the NLRB could have acted as soon as the same day Amazon filed its brief.
The Uncertainty of Effective Denials
Judge Richman’s dissent also raised an interesting question that cases like Amazon present: what is the “principled way for a court to determine whether the district court failed to timely rule on a would-be appellant’s preliminary-injunction motion?” (Cleaned up.) Everyone agrees that parties cannot normally insist that a district court act by a certain date. But in cases of urgency, Judge Richman suggested that courts should “tether the inquiry” to the would-be appellant’s impending deadline. (Cleaned up.)
There’s something to be said for Judge Richman’s proposal. It’s probably the easiest way to pick a date by which delay in deciding a preliminary-injunction motion amounts to an effective denial.
I’ve said before (including in an earlier version of this post) that maybe courts should just treat delay as delay. After all, even with a given deadline, courts still must determine when an action is sufficiently urgent to treat delay as an effective denial. And urgency questions (much like questions about when delay is too long) create uncertainty as to appellate jurisdiction. Mandamus might be a better alternative when district courts delay.
But injecting mandamus into these time-sensitive manners might only complicate them. That’s the last things a party seeking urgent relief needs. I’m still concerned about parties making urgency arguments (after all, most parties seeking an injunction probably think that the matter is urgent). But there are also times when appellate courts must intervene to avoid the irreparable harm a delay can cause. I can hope only that those instances are rare.
Amazon.com Services LLC v. NLRB, 2025 WL 1303629 (5th Cir. May 6, 2025), available at the Fifth Circuit and Westlaw
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