The panel granted an application by the National Labor Relations Board (“NLRB”) for enforcement of its order finding that North American Foothills Apartments (“NMFA”) violated Section 8(a)(1) of the National Labor Relations Act.

The panel held that it had jurisdiction to adjudicate NMFA’s unexhausted constitutional challenges to the NLRB, which it did not raise before the NLRB.

First, NMFA challenged a statutory provision— providing that an administrative law judge (“ALJ”) could be removed “only for just cause,” as determined by the Merit Systems Protection Board—on the ground that the provision violates Article II, which it argued vests the sole removal power over agency “officers” (such as the ALJ who initially rendered the order appealed from here) in the President. The President never sought to remove the ALJ who issued the order here. The panel held that so long as an agency officer was validly appointed (which NMFA did not contest as to this ALJ), retrospective relief based on an unconstitutional removal provision is available only where the provision inflicts compensable harm. The panel held that even if it assumed arguendo that the NLRB’s for-cause protections were invalid, NMFA’s failure to show harm precluded retrospective relief.

Second, NMFA argued that the NLRB’s adjudication scheme violated the Seventh Amendment by denying employers the right to a jury trial. The Supreme Court has squarely held that an NLRB unfair practice proceeding is not a “suit at common law” for purposes of the Seventh Amendment. The panel held that employers are not entitled to jury trials in cases involving Thryv v., Inc. v. International Brotherhood of Electrical Workers, Local 1269, 372 NLRB No. 22 (2022), remedies. Accordingly, the panel concluded that the Seventh Amendment was not implicated.

Third, NMFA argued that the combined investigatory and adjudicatory functions of the NLRB were inconsistent with separation of power principles such that the NLRB’s decision violated NMFA’s Fifth Amendment right to due process. The panel held that the combination of investigative and judicial functions within an agency does not, of itself, violate due process. NMFA did not argue that the NLRB confers both investigative and adjudicatory powers on a single individual within the agency, nor could it. NMFA also failed to demonstrate that either the NLRB’s ALJs or its Board members had an unconstitutional potential for bias, such that the presumption of honesty and integrity should not apply to them. Accordingly, the panel rejected NMFA’s due process challenge.

Turning to the merits, the panel held that NMFA had forfeited three of the NLRB’s four findings that NMFA violated Section 8(a)(1) of the National Labor Relations Act.

As to the NLRB’s finding that NMFA discharged an employee for engaging in actual or perceived concerted activities, the panel applied the test set forth in Wright Line, 251 NLRB 1083 (1980), and concluded that the NLRB’s finding that NMFA violated Section 8(a)(1) by discharging the employee for engaging in actual or perceived protected activities was supported by substantial evidence.

https://cdn.ca9.uscourts.gov/datastore/opinions/2025/10/28/24-2223.pdf