Leachco v. Consumer Product Safety Commission

103 F.4th 748

• Court: Court of Appeals for the Tenth Circuit
• Decided: June 4, 2024
• Docket: 22-7060
• Status: Published

Opinion

Appellate Case: 22-7060 Document: 010111060075 Date Filed: 06/04/2024 Page: 1 FILED United States Court of Appeals Tenth Circuit

PUBLISH June 4, 2024 Christopher M. Wolpert UNITED STATES COURT OF APPEALS Clerk of Court FOR THE TENTH CIRCUIT _________________________________

LEACHCO, INC.,

Plaintiff - Appellant,

v. No. 22-7060

CONSUMER PRODUCT SAFETY COMMISSION; ALEXANDER HOEHN- SARIC, Chair of the Consumer Product Safety Commission; DANA BAIOCCO, Commissioner of the Consumer Product Safety Commission; MARY T. BOYLE, Commissioner of the Consumer Product Safety Commission; PETER A. FELDMAN, Commissioner of the Consumer Product Safety Commission; RICHARD TRUMKA, Commissioner of the Consumer Product Safety Commission,

Defendants - Appellees.

-----------------------------

PUBLIC CITIZEN, INC.,

Amicus Curiae. _________________________________

Appeal from the United States District Court for the Eastern District of Oklahoma (D.C. No. 6:22-CV-00232-RAW) _________________________________ Appellate Case: 22-7060 Document: 010111060075 Date Filed: 06/04/2024 Page: 2

Oliver J. Dunford, Pacific Legal Foundation, Palm Beach Gardens, Florida (Kurt M. Rupert, Hartzog Conger Cason, Oklahoma City, Oklahoma and John F. Kerkhoff and Frank D. Garrison, Pacific Legal Foundation, Arlington, Virginia with him on the briefs), for Plaintiff-Appellant Leachco, Inc.

Joshua M. Salzman, U.S Department of Justice, Washington, D.C. (Brian M. Boynton, Principal Deputy Assistant Attorney General and Daniel Aguilar, Washington, D.C. with him on the brief), for Defendants-Appellees.

Scott L. Nelson and Allison M. Zieve, Public Citizen Litigation Group, Washington, D.C., for amicus curiae Public Citizen. _________________________________

Before MATHESON, EBEL, and CARSON, Circuit Judges. _________________________________

EBEL, Circuit Judge. _________________________________

Plaintiff-Appellant Leachco, Inc. appeals the district court’s denial of its request

for a preliminary injunction to enjoin administrative enforcement proceedings by the

Consumer Product Safety Commission (CPSC) against it. Leachco argues that statutory

removal protections for CPSC commissioners and administrative law judges (ALJs)

violate Article II of the Constitution and the separation of powers. The district court

denied Leachco’s motion for a preliminary injunction on the ground that, even if

Leachco’s constitutional arguments were meritorious, the constitutional violations

alleged by Leachco were insufficient to establish that it will suffer “irreparable harm . . .

if the injunction is denied.” Gen. Motors Corp. v. Urb. Gorilla, LLC, 500 F.3d 1222,

1226 (10th Cir. 2007).

We conclude that current Supreme Court and Tenth Circuit precedent establishes

that Leachco’s subjection to proceedings before an agency whose officials allegedly have

2 Appellate Case: 22-7060 Document: 010111060075 Date Filed: 06/04/2024 Page: 3

unconstitutional protection against removal is insufficient, by itself, to establish

irreparable harm. Because Leachco’s only preserved asserted harm is that it has to

appear before an unconstitutionally composed agency, we look briefly at the prevailing

law on that issue as well to judge whether Leachco has established that it will be harmed

in that manner. Supreme Court and Tenth Circuit precedent casts doubt on Leachco’s

ability to prove that claimed harm. Therefore, Leachco has failed to satisfy the

irreparable harm requirement necessary to obtain a preliminary injunction, both with

respect to the CPSC commissioners and its administrative law judge. Given the current

precedential support for the district court’s decision, we cannot conclude that Leachco

has established a “clear and unequivocal” “right to relief,” as would be required for

Leachco to prevail here. Schrier v. Univ. of Colo., 427 F.3d 1253, 1258 (10th Cir. 2005).

Having jurisdiction over this interlocutory appeal under 28 U.S.C. § 1292(a)(1), we

therefore AFFIRM the district court’s denial of Leachco’s motion for a preliminary

injunction.

I. BACKGROUND

1. The CPSC

The Consumer Product Safety Commission (CPSC) is a federal agency

authorized to enforce the Consumer Product Safety Act, 15 U.S.C. § 2051 et seq.

Congress gave the CPSC a variety of tools with which to regulate the safety of

consumer products, including the power to ban certain products, and the power to

order various remedies (including recalls) when it has determined that a product

poses a substantial hazard. Id. § 2057, 2064. In doing so, the CPSC holds formal

3 Appellate Case: 22-7060 Document: 010111060075 Date Filed: 06/04/2024 Page: 4

adjudicatory hearings under the Administrative Procedure Act (APA), 5 U.S.C.

§ 554. 15 U.S.C. § 2064(f)(1). The presiding officer at the hearing is ordinarily an

administrative law judge (ALJ). See 5 U.S.C. § 556(b) (specifying that presiding

officers may either be (1) the agency, (2) a member of the body that comprises the

agency, i.e., a commissioner, or (3) an ALJ); 16 C.F.R. § 1025.3(i) (CPSC regulation

defining “presiding officer” to include ALJs, but not commissioners). The presiding

officer in the CPSC’s proceedings against Leachco is Michael G. Young, an ALJ

with the Federal Mine Safety and Health Review Commission who is on loan to the

CPSC. See 5 C.F.R. § 930.208. As an ALJ, Young may only be removed by the

CPSC “for good cause established and determined by the Merit Systems Protection

Board on the record after opportunity for hearing before the Board.” 5 U.S.C.

§ 7521(a).

The CPSC has extensive investigatory powers, including the power to inspect

facilities, to compel the production of documents and testimony, and to hold a wide

range of hearings. 15 U.S.C. § 2076(a), (b). The CPSC may also initiate civil and

criminal actions in certain cases. Id. § 2076(b)(7).

The CPSC is led by five commissioners, who are appointed by the President

and confirmed by the Senate. Id. § 2053(a). The organic statute directs the President

to consider for nomination “individuals who, by reason of their background and

expertise in areas related to consumer products and protection of the public from

risks to safety, are qualified to serve as members of the Commission.” Id. § 2053(a).

Commissioners serve staggered seven-year terms. Id. § 2053(b)(1). No more than

4 Appellate Case: 22-7060 Document: 010111060075 Date Filed: 06/04/2024 Page: 5

three commissioners may be from the same political party. Id. § 2053(c). And,

important to this case, “[a]ny member of the Commission may be removed by the

President for neglect of duty or malfeasance in office but for no other cause.” Id.

§ 2053(a) (emphasis added).

2. The CPSC’s Proceedings Against Leachco Plaintiff-Appellant Leachco, Inc. is an Oklahoma corporation which

manufactures and markets various products. One of its products is an infant lounger,

the “Podster,” which has been involved in two incidents that resulted in an infant’s

death. The CPSC authorized the issuance of an administrative complaint against

Leachco on February 9, 2022, alleging the Podster presents a “substantial product

hazard” under 15 U.S.C. § 2064.

3. The District Court’s Decision After the CPSC initiated an administrative proceeding against it, Leachco filed

a verified complaint for injunctive and declaratory relief against the CPSC and its

commissioners in the United States District Court for the Eastern District of

Oklahoma. Leachco asserted six constitutional claims, two of which are relevant to

this interlocutory appeal—that the removal protections (1) for CPSC commissioners

and (2) for ALJ Young, the presiding officer in Leachco’s proceedings, violate the

separation of powers and Article II of the Constitution.

Leachco moved for a preliminary injunction under Federal Rule of Civil

Procedure 65(a) to prevent the CPSC from continuing its administrative proceeding

against Leachco during the course of this litigation. The district court denied the

5 Appellate Case: 22-7060 Document: 010111060075 Date Filed: 06/04/2024 Page: 6

preliminary injunction on the ground that Leachco “failed to show it is likely to

suffer irreparable harm in the absence of a preliminary injunction.” The district court

rejected both theories of irreparable harm advanced by Leachco: (1) the purported

“here-and-now” constitutional injury of being subjected to proceedings before an

unconstitutionally structured agency, and (2) “the time and expense of litigation.”

The district court did not directly address Leachco’s likelihood of success on the

merits, or any other elements of the preliminary injunction analysis. Instead, the

district court predicated its denial of relief on Leachco’s failure to show irreparable

harm. Leachco now appeals this decision. 1

II. STANDARD OF REVIEW

We review the denial of a preliminary injunction for abuse of discretion. Att’y

Gen. of Okla. v. Tyson Foods, Inc., 565 F.3d 769, 775 (10th Cir. 2009). “A district

court abuses its discretion when it commits an error of law or makes clearly erroneous

factual findings.” Wyandotte Nation v. Sebelius, 443 F.3d 1247, 1252 (10th Cir.

2006). “[I]n the course of our review for abuse of discretion, we examine the district

1 While Leachco’s appeal was pending before this court, Leachco filed a number of motions with the district court and this court. Leachco filed motions with the district court for an injunction against the CPSC proceedings and for a stay of the district court case pending appeal. The district court denied the motion for an injunction aimed at the CPSC proceeding but granted the requested stay of its own proceeding. Leachco then filed a motion with this court for an injunction against the CPSC proceedings pending appeal or, alternatively, for expedited consideration, which we denied. Leachco then moved again for an injunction pending appeal with this court, which we also denied. On July 31, 2023, Leachco filed an emergency motion for injunction pending appeal with this court. We once again denied Leachco’s motion. 6 Appellate Case: 22-7060 Document: 010111060075 Date Filed: 06/04/2024 Page: 7

court’s legal determinations de novo, and its underlying factual findings for clear error.”

Tyson Foods, 565 F.3d at 776. “Our review of a district court’s exercise of discretion is

narrow, and we consider the merits of the case only as they affect that exercise of

discretion.” Id.

III. DISCUSSION

“To obtain a preliminary injunction, the movant must show: (1) a substantial

likelihood of success on the merits; (2) irreparable harm to the movant if the injunction is

denied; (3) the threatened injury outweighs the harm that the preliminary injunction may

cause the opposing party; and (4) the injunction, if issued, will not adversely affect the

public interest.” Gen. Motors Corp., 500 F.3d at 1226. Here, the district court addressed

only whether Leachco has established irreparable harm, so this is the sole issue we decide

on appeal. “As a preliminary injunction is an extraordinary remedy, the right to relief

must be clear and unequivocal.” Schrier, 427 F.3d at 1258.

Leachco argues the CPSC adjudication inflicts two distinct injuries upon it which

support a finding of irreparable harm: “reputational and economic harm, as well as the

constitutional injury of being subjected to an administrative proceeding carried out by an

unconstitutionally structured agency.” (Aplt. Br. 28-29).

Leachco did not assert the first alleged injury, reputational and economic harm,

before the district court. See (Aplt. App. 92-94, 157-58) (Leachco’s motion for

preliminary injunction and reply in support of that motion argued that the CPSC

adjudication caused harm in the form of subjecting it to a proceeding by an

unconstitutionally structured agency and litigation expense—not reputational and

7 Appellate Case: 22-7060 Document: 010111060075 Date Filed: 06/04/2024 Page: 8

economic harm). 2 Leachco has not explained to this court how its new appellate

argument that its purported reputational and economic harm constitute irreparable harm

survives the plain error standard of review. Therefore, Leachco has waived this

argument. Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1311 (10th Cir. 2011) (“[T]he

failure to argue for plain error and its application on appeal . . . surely marks the end of

the road for an argument for reversal not first presented to the district court.”); United

States v. Regan, 627 F.3d 1348, 1354 (10th Cir. 2010) (“[W]e cannot hold that the district

court abused its discretion by failing to consider an argument that Regan did not raise.”). 3

1. Even Assuming that Leachco has Established that the Removal Protections for CPSC Commissioners and ALJs are Unconstitutional, Leachco has Failed to Establish Entitlement to a Preliminary Injunction Because, Under Current

2 Leachco does not argue on appeal that litigation expense constitutes irreparable harm, which was probably a prudent decision. See FTC v. Standard Oil Co. of Cal., 449 U.S. 232, 244 (1980) (“Mere litigation expense, even substantial and unrecoupable cost, does not constitute irreparable injury.” (quoting Renegotiation Bd. v. Bannercraft Clothing Co., 415 U.S. 1, 24 (1974))). 3 We reject Leachco’s suggestion that it preserved the argument because of allegations of reputational and economic injury in its Verified Complaint. Leachco cites Vette v. K-9 Unit Deputy Sanders for the proposition, “[a] Verified Complaint is considered to be the same as an affidavit or declaration given under oath.” 989 F.3d 1154, 1163 (10th Cir. 2021) (internal quotations omitted). While this court in Vette held that the district court did not abuse its discretion by considering the Verified Complaint as evidence on summary judgment, this holding has no bearing on the preservation issue here. Id. Even if Leachco’s Verified Complaint is considered the same as an affidavit or declaration, the mere existence of allegations in the Verified Complaint did not preserve arguments Leachco might have made, but did not make, during argument before the district court on its motion for injunctive relief. See Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 672 (10th Cir. 1998) (explaining that the district court and this court “have a limited and neutral role in the adversarial process, and are wary of becoming advocates who comb the record of previously available evidence and make a party’s case for it”). To preserve its argument of reputational and economic harm, Leachco needed to present that argument to the district court in its motion for a preliminary injunction or briefing in support, and it failed to do so. 8 Appellate Case: 22-7060 Document: 010111060075 Date Filed: 06/04/2024 Page: 9

Supreme Court and Tenth Circuit Precedent, Mere Subjection to Proceedings Before an Agency Whose Officials Possess Unconstitutional Removal Protections Does Not, by Itself, Establish Irreparable Harm Therefore, Leachco’s only preserved theory of irreparable harm is its alleged

“constitutional injury of being subjected to an administrative proceeding carried out by an

unconstitutionally structured agency.” Leachco argues that the CPSC is

unconstitutionally structured because “both the CPSC’s Commissioners and ALJ

Young,” the presiding officer in the administrative proceeding against Leachco,

“enjoy removal protections that violate the Separation of Powers, Article II’s vesting

of the executive power in the President, and the President’s duty to ‘take Care that

the laws be faithfully executed.’” (Aplt. Br. 32) (citing U.S. Const. art. II, § 3).

Leachco has failed to show under prevailing law that its mere subjection to

administrative proceedings before an agency whose officials possess unconstitutional

removal protections, alone, constitutes irreparable harm. Instead, Tenth Circuit

precedent establishes that, while violations of certain individual constitutional rights,

without more, can constitute irreparable harm, violations of the Constitution’s

separation of powers provisions do not. And under current Supreme Court precedent,

succeeding in a constitutional challenge to an agency official’s removal protections is

not sufficient, by itself, to warrant relief from proceedings before that agency

official. Instead, the plaintiff must show that the unconstitutional removal

protections made a difference in its case, and Leachco has failed to make that

showing here.

9 Appellate Case: 22-7060 Document: 010111060075 Date Filed: 06/04/2024 Page: 10

a. Under Current Tenth Circuit Precedent, Merely Being Subjected to an Agency Constructed in Violation of the Separation of Powers Does Not, by Itself, Constitute Irreparable Harm In Aposhian v. Barr, we surveyed our precedent to determine when a

constitutional violation, alone, constitutes irreparable harm, and we distinguished

between separation of powers violations (violations of the Constitution’s allocation

of power between the three branches, such as the violation being alleged here) and

violations of individual constitutional rights (violations of the Constitution’s

protections of the individual in relation to the government, such as the rights

guaranteed by the First and Fourteenth Amendments):

[Aposhian] has not cited a single case where a generalized separation of powers [violation], by itself, constituted irreparable harm. To the contrary, our cases finding that a violation of a constitutional right alone constitutes irreparable harm are limited to cases involving individual rights, not the allocation of powers among the branches of government.

958 F.3d 969, 990 (10th Cir. 2020) (citing Free the Nipple-Fort Collins v. City of Fort

Collins, 916 F.3d 792, 806 (10th Cir. 2019) (finding irreparable harm for alleged

equal protection violation); Awad v. Ziriax, 670 F.3d 1111, 1119 (10th Cir. 2012)

(same for alleged First Amendment violation); 11A Charles Alan Wright, Arthur R.

Miller & Mary Kay Kane, Federal Practice and Procedure § 2948.1 (3d ed. 2019) (“When

an alleged deprivation of a constitutional right is involved, such as the right to free speech

or freedom of religion, most courts hold that no further showing of irreparable harm is

necessary.”) (emphasis added)). Based on this precedent, we rejected the argument that a

violation of the Constitution’s separation of powers, by itself, constituted irreparable

harm. Aposhian, 958 F.3d at 990.

10 Appellate Case: 22-7060 Document: 010111060075 Date Filed: 06/04/2024 Page: 11

Leachco argues that we should not rely on our statement of law in Aposhian.

First, Leachco argues the above language was dicta because, in Aposhian, we did not

need to address whether the plaintiff established irreparable harm in order to affirm the

district court’s denial of the preliminary injunction, since we had already concluded in

our opinion that the plaintiff failed to demonstrate a substantial likelihood of success on

the merits, and the government conceded before the district court—but not, apparently, in

the Tenth Circuit—that the plaintiff had established irreparable harm. Id. at 989.

Additionally, Leachco argues the irreparable harm language in Aposhian was dicta

because we had concluded that the plaintiff had failed to raise a constitutional challenge

in his opening brief. Id. at 989-90.

We reject these arguments. First, while the government in Aposhian conceded at

the district court that the plaintiff would suffer irreparable harm without an injunction,

this concession was based only on a lost-property theory of harm—the government

expressly preserved its disagreement with the plaintiff’s constitutional-violation-as-

irreparable-harm argument. Id. at 989-90 (explaining that the government disagreed with

the plaintiff “about what the irreparable harm is,” and the government “conceded [before

the district court] only that the irreparable harm was the loss of Mr. Aposhian’s bump

stock”); Aplt. App. at 105-06 n.14, Aposhian, 958 F.3d 969 (government’s response to

the plaintiff’s motion for preliminary injunction). So, when the plaintiff proceeded on

appeal with the same constitutional-violation-as-irreparable-harm theory to which the

government objected before the district court, the government repeated its objection, and

11 Appellate Case: 22-7060 Document: 010111060075 Date Filed: 06/04/2024 Page: 12

this court considered—and rejected—the plaintiff’s argument. Aposhian, 958 F.3d

at 989-90. 4 Thus, that remained a contested issue in Aposhian.

Second, a review of our opinion in Aposhian assures us that our conclusion that a

separation of powers violation, alone, did not constitute irreparable harm was a holding,

albeit one of two alternative holdings. Id. at 989 (“Although we could affirm the district

court’s denial of preliminary injunctive relief solely on the ground that Mr. Aposhian has

failed to demonstrate a substantial likelihood of success on the merits, we also conclude

that Mr. Aposhian has not met the other prerequisites for preliminary relief.” (emphasis

added)); id. at 990 (concluding both that Aposhian failed to present a constitutional

challenge and that a separation of powers violation, alone, does not constitute irreparable

harm, then stating, “[f]or these reasons, [Aposhian] has not met his burden of

demonstrating that he would suffer irreparable harm absent an injunction.” (emphasis

added)). “Alternative rationales . . . , providing as they do further grounds for the Court's

disposition, ordinarily cannot be written off as dicta.” Surefoot LC v. Sure Foot Corp.,

531 F.3d 1236, 1243 (10th Cir. 2008). Consistent with this alternative holding and

4 We note that this court is not bound to accept a party’s concession on issues of law—especially when doing so would require accepting an erroneous statement or application of law. See Roberts v. Galen of Virginia, Inc., 525 U.S. 249, 253 (1999) (“[T]he concession of a point on appeal by respondent is by no means dispositive of a legal issue”); SEC v. Maxxon, Inc., 465 F.3d 1174, 1183 n.20 (10th Cir. 2006) (applying Roberts and concluding this court was not bound by a party’s concession on appeal); United States v. McGregor, 650 F.3d 813, 824 n.4 (1st Cir. 2011) (applying Roberts and concluding the court was not bound on appeal by a party’s concession made to the district court). 12 Appellate Case: 22-7060 Document: 010111060075 Date Filed: 06/04/2024 Page: 13

the further analysis provided in this opinion, we conclude that a mere generalized

separation of powers violation, by itself, does not establish irreparable harm. 5

Leachco also attempts to rely on language from this court’s decision in Free the

Nipple, where we said, “[w]hat makes an injury ‘irreparable’ is the inadequacy of, and

the difficulty of calculating, a monetary remedy after a full trial. . . . Any deprivation of

any constitutional right fits that bill.” 916 F.3d at 806 (citation omitted). However,

Leachco’s reliance on Free the Nipple erroneously conflates “irreparable” with “harm.”

In fact, all that Free the Nipple was saying was that the lack of a monetary remedy could

make an otherwise adequately alleged harm “irreparable”—not that it would itself

constitute the injury in the absence of a specifically alleged harm flowing from a

constitutional violation. In other words, if Leachco fails to show that the alleged

constitutional violation has caused it, or will cause it, specific harm, then Leachco cannot

establish irreparable harm—even if it is unable to recover money damages. Additionally,

in Free the Nipple, it was unnecessary to suggest that any deprivation of any

constitutional right constitutes irreparable harm, as that case involved only individual

rights, not the separation of powers. Id. at 794-95, 806 (alleged injury was equal

protection violation based on ordinance that prohibited public toplessness by women, but

not men). And the cases upon which we relied in Free the Nipple involved only

5 Even if the language from Aposhian upon which we rely here was not an alternative holding, it accurately synthesized our irreparable harm case law and provided a clear statement of law under this court’s precedent. Therefore, even if that language was not binding—which we believe it is—it is instructive, and we now hold that a mere generalized separation of powers violation, by itself, does not establish per se irreparable harm. 13 Appellate Case: 22-7060 Document: 010111060075 Date Filed: 06/04/2024 Page: 14

individual rights, not the separation of powers. Elrod v. Burns, 427 U.S. 347, 373

(1976) (involving First Amendment violation); Awad, 670 F.3d at 1119 (same).

Therefore, we reject Leachco’s reliance on this language from Free the Nipple.

Instead, this court’s statement of law in Aposhian, based on a survey of precedent

which included Free the Nipple and cases decided before it, controls here. See

Aposhian, 958 F.3d at 990; see also id. at 1000 n.6 (Carson, J., dissenting) (concluding

government waived argument that plaintiff failed to establish irreparable harm, but

stating, “[a]bsent waiver, I agree that Plaintiff cannot use our holding in Free the Nipple

. . . that ‘[a]ny deprivation of any constitutional right’ amounts to irreparable harm. . .

Allowing any deprivation of any constitutional right to serve as per se irreparable harm is

a far-too-powerful tool in most cases.” (emphasis in original) (citation omitted)).

b. Under the Remedial Analysis Required by the Supreme Court’s Recent Decision in Collins v. Yellen, Leachco is Not Entitled to Relief, Even Assuming the Removal Protections are Unconstitutional, Unless it Can Show that the Removal Protections Affected the CPSC’s Proceedings Against it, and Leachco has Failed to Make that Showing Next, Leachco attempts to distinguish the language from Aposhian on the ground

that Aposhian purported to address only “generalized separation-of-powers violation[s],”

while Leachco asserts both a separation of powers violation and a resulting injury.

Aposhian, 958 F.3d at 989. Specifically, Leachco argues it would be irreparably injured

if the CPSC proceedings continue because sovereign immunity would preclude recovery

of damages from the CPSC for any harm inflicted by the CPSC proceedings. See

Chamber of Com. of U.S. v. Edmondson, 594 F.3d 742, 770-71 (10th Cir. 2010)

(explaining that irreparable harm can be established when a plaintiff incurs damages

14 Appellate Case: 22-7060 Document: 010111060075 Date Filed: 06/04/2024 Page: 15

that cannot be recovered because of sovereign immunity). This argument seems to

assume that, if Leachco ultimately succeeds on the merits of its constitutional challenges

to the removal protections for CPSC commissioners and ALJs, it would necessarily mean

that its interim subjection to the CPSC proceedings would have caused it compensable

harm which it would be unable to recover because of sovereign immunity. However,

Supreme Court precedent refutes the proposition that Leachco will suffer harm.

The Supreme Court’s decision in Collins v. Yellen established that succeeding in a

constitutional separation of powers challenge to a removal provision does not by itself

entitle a party to retrospective relief. Instead, the challenger must establish that the

unconstitutional provision actually caused him compensable harm—in other words,

he must demonstrate that the unconstitutional removal provision actually affected the

agency’s decision or conduct against him. 141 S. Ct. 1761, 1788-89 (2021). In

Collins, the Court concluded that the single-director structure of the Federal Housing

Finance Agency (FHFA) was unconstitutional when the single director could only be

removed for cause. Id. at 1787. For the remedy, however, the Court remanded,

instructing the lower court to ascertain whether the plaintiffs were entitled to any

retrospective relief. It noted that the agency’s actions weren’t void because the

director had been validly appointed under the Appointments Clause. 6 Id. at 1787-88.

Instead, the plaintiffs needed to show that the removal provision actually inflicted

6 Like in Collins, Leachco does not challenge the authority of the CPSC commissioners or ALJ Young under the Appointments Clause, and we have no reason to believe that such a challenge would be successful. 15 Appellate Case: 22-7060 Document: 010111060075 Date Filed: 06/04/2024 Page: 16

harm on them. Id. at 1788-89. For example, the Court suggested that a removal

provision might harm a plaintiff if the President had expressed that he wanted to

remove the director but chose not to because of the limitations under the removal

provision, thereby establishing that the unconstitutional removal provision actually

affected the agency’s conduct against the plaintiff. Id. at 1789. 7

Justice Thomas’s concurrence in Collins further elaborates upon the majority’s

point in that case—that actions by an administrative official protected by an

unconstitutional removal provision are not automatically unlawful and, therefore, do

not necessarily inflict legal harm. Id. at 1789 (Thomas, J., concurring). Justice

Thomas explained that “[t]he mere existence of an unconstitutional removal

provision . . . generally does not automatically taint Government action by an official

unlawfully insulated.” Id. at 1793 (Thomas, J., concurring). Both Justice Thomas

and the majority described why that is the case: “an unconstitutional provision is never

really part of the body of governing law (because the Constitution automatically displaces

any conflicting statutory provision from the moment of the provision's enactment),” and

“[s]o regardless of whether the removal restriction was lawful or not, the President

always had the legal power to remove the Director in a manner consistent with the

7 As recently explained by the Fifth Circuit, “to demonstrate harm [under Collins], the Plaintiffs must show a connection between the President's frustrated desire to remove the actor and the agency action complained of.” Cmty. Fin. Servs. Ass'n of Am. v. CFPB, 51 F.4th 616, 632 (5th Cir. 2022) (emphasis in original), cert. granted, opinion rev’d on other grounds, CFPB v. Cmty. Fin. Servs. Ass'n of Am., Ltd., 601 U.S. 416 (2024). 16 Appellate Case: 22-7060 Document: 010111060075 Date Filed: 06/04/2024 Page: 17

Constitution.” Id. at 1788-89 (majority opinion); id. at 1793 (Thomas, J., concurring).

Therefore, as explained by the majority in Collins, plaintiffs who succeed in a

constitutional challenge to a removal provision are not automatically entitled to relief—

they must show that the removal provision caused some harm to them beyond the

mere existence of the unconstitutional provision. 8 Id. at 1788 n.23 (majority opinion)

(citing Seila Law LLC v. CFPB, 140 S. Ct. 2183, 2207-11 (2020) for proposition that

“[s]ettled precedent . . . confirms that the unlawfulness of [a] removal provision does not

strip [the protected official] of the power to undertake the other responsibilities of his

office,” and therefore a plaintiff must demonstrate that the unconstitutional provision

caused him harm to be entitled to relief); see also id. at 1795 (Thomas, J., concurring)

(“I seriously doubt that the [plaintiffs] can demonstrate that any relevant action by an

FHFA Director,” who was protected by an unconstitutional removal provision, “violated

the Constitution. And, absent an unlawful act, the [plaintiffs] are not entitled to a

remedy.”).

Leachco argues that Collins only addressed the plaintiffs’ entitlement to

retrospective relief, and therefore it is not applicable to Leachco’s request for

prospective relief. We disagree, and we instead agree with the Second, Fifth, and

Sixth Circuits that Collins’ relief analysis applies to both retrospective and

prospective relief. See Calcutt v. Fed. Deposit Ins. Corp., 37 F.4th 293, 316 (6th Cir.

8 For example, that the President would have removed one or more commissioners but for this statutory protection. See supra 15-16 (discussing Collins). 17 Appellate Case: 22-7060 Document: 010111060075 Date Filed: 06/04/2024 Page: 18

2022), cert. granted, opinion rev’d on other grounds, 598 U.S. 623 (2023) (“The

Collins inquiry focuses on whether a ‘harm’ occurred that would create an

entitlement to a remedy, rather than the nature of the remedy, and our determination

as to whether an unconstitutional removal protection ‘inflicted harm’ remains the

same whether the petitioner seeks retrospective or prospective relief (particularly

when we review an adjudication that has already ended).”); Cmty. Fin. Servs. Ass’n

of Am., 51 F.4th at 631 (5th Cir. 2022) (agreeing with the Sixth Circuit’s statement

in Calcutt and concluding Collins applies to claims for prospective relief); CFPB v.

L. Offs. of Crystal Moroney, P.C., 63 F.4th 174, 180-81 (2d Cir. 2023) (applying

Collins where the plaintiff, the CFPB, requested prospective relief—enforcement of a

civil investigative demand).

To establish harm under Collins, Leachco would need to make a showing that

the challenged removal provisions actually impacted, or will impact, the actions

taken by the CPSC against it. However, Leachco has failed to make any showing

that, but for the allegedly unconstitutional removal provisions, the CPSC

commissioners or ALJ Young would have been removed, the CPSC proceedings

against it would not be occurring, or the proceedings would be different in any way.

Therefore, Leachco has failed to establish that it would suffer future irreparable harm

if the preliminary injunction is denied. 9 And, as previously explained, a plaintiff

9 It is for this same reason that we are not persuaded by the general cases cited by Leachco to argue that “issuing injunctions in separation-of-powers cases is standard operating procedure.” (Aplt. Br. 43). While an injunction can be 18 Appellate Case: 22-7060 Document: 010111060075 Date Filed: 06/04/2024 Page: 19

must establish irreparable harm to receive a preliminary injunction. Urb. Gorilla,

500 F.3d at 1226. Leachco’s failure on this prong is especially noteworthy given

that, under this court’s precedent, it was required to show a “clear and unequivocal”

right to the requested preliminary injunction. Schrier, 427 F.3d at 1258. Leachco

failed completely to make such a showing. Accordingly, the district court did not

abuse its discretion in denying injunctive relief.

c. The Supreme Court’s Jurisdictional Holding in Axon Enterprise, Inc. v. FTC Does Not Support Leachco’s Irreparable Harm Arguments Finally, in its emergency motion for injunction pending appeal, Leachco argues

that the language in the Supreme Court’s recent decision in Axon Enterprise, Inc. v.

FTC “confirms that being subjected to an unconstitutional agency’s proceeding,”

without more, constitutes irreparable harm. (Aplt. Emergency Mot. 12) (citing Axon,

598 U.S. 175, 190-91 (2023)). We reject this argument.

Axon does not help Leachco establish irreparable harm because Axon did not

address the issue of irreparable harm, or any other issue regarding entitlement to

injunctive relief. The Court in Axon only addressed whether the petitioners, who

were respondents in administrative enforcement actions before the SEC and FTC,

could initially bring collateral challenges in federal district court to the

constitutionality of those agencies’ structure. Axon, 598 U.S. at 180. To answer that

strictly jurisdictional question, the Court applied the jurisdictional factors from

appropriate relief for some separation of powers violations, the Collins relief analysis applies when the alleged violation is an unconstitutional removal provision. 19 Appellate Case: 22-7060 Document: 010111060075 Date Filed: 06/04/2024 Page: 20

Thunder Basin Coal Co. v. Reich, 510 U.S. 200 (1994) to determine whether the

constitutional claims brought by the petitioners were of the type that Congress

intended to allocate exclusively to the agency, or whether those claims could be

initiated in federal district court: 1. “[C]ould precluding district court jurisdiction

‘foreclose all meaningful judicial review’ of the claim?”; 2. “[I]s the claim ‘wholly

collateral to [the] statute's review provisions’?”; and 3. “[I]s the claim ‘outside the

agency’s expertise’?” Axon, 598 U.S. at 186 (citing Thunder Basin, 510 U.S. at 208,

212). The Court concluded that the answer to all three questions was “yes,” and

therefore the collateral constitutional claims could be heard by federal district courts.

Id. at 195-96. The Court did not, however, address issues of relief.

Leachco points to statements made by the Axon Court in the context of its

Thunder Basin analysis to argue that subjection to proceedings before an

unconstitutionally structured agency, alone, constitutes irreparable harm. For

example, the Court referred to subjection to proceedings before an unconstitutionally

structured agency as a “here-and-now injury” that is “impossible to remedy once the

proceeding is over.” Id. at 191; see also id. at 192 (“Axon and Cochran will lose their

rights not to undergo the complained-of agency proceedings if they cannot assert those

rights until the proceedings are over.”). We do not believe these statements help Leachco

establish irreparable harm here because they were made in the context of the Court’s

jurisdictional Thunder Basin analysis, and not within the context of determining the

plaintiffs’ entitlement to preliminary injunctive relief. As described below, Supreme

20 Appellate Case: 22-7060 Document: 010111060075 Date Filed: 06/04/2024 Page: 21

Court precedent supports a narrow application of Axon’s “here-and-now injury”

language.

The Court’s “here-and-now injury” language in Axon originated from Seila

Law, where the Court considered whether the petitioner, a California law firm, had

standing to challenge the CFPB’s structure. Amicus there argued “that the proper

context for assessing the constitutionality of an officer’s removal restriction is a

contested removal,” which was not the procedural posture of Seila’s case, and

therefore the Court should dismiss the case without reaching the merits. Seila Law,

140 S. Ct. at 2196. The Court disagreed and decided it had jurisdiction to reach the

merits because when a removal provision “violates the separation of powers it inflicts

a ‘here-and-now’ injury on affected third parties that can be remedied by a court.”

Id. However, Seila Law concerned standing, not entitlement to injunctive relief.

That was the key distinction noted by the Supreme Court in Collins when it clarified

its “here-and-now injury” language from Seila Law:

What 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. We 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 [allegedly void] action that was taken by such an officer. . . . But that holding on standing does not mean that actions taken by such an officer are void ab initio and must be undone.

Collins, 141 S. Ct. at 1788 n.24. We will follow the Supreme Court’s words of

caution when interpreting the same “here-and-now injury” language from Axon—we

will not misunderstand what was said about jurisdiction in Axon “as a holding on a

party’s entitlement to relief based on an unconstitutional removal provision.” Id.

21 Appellate Case: 22-7060 Document: 010111060075 Date Filed: 06/04/2024 Page: 22

Otherwise, the Supreme Court’s limited jurisdictional holding in Axon, which only

upheld district court jurisdiction to consider collateral constitutional challenges to

administrative proceedings, would be converted into a broad ruling that creates an

entitlement on the merits to a preliminary injunction in every case where such

constitutional challenges are raised. That cannot be the law under current Supreme

Court or Tenth Circuit precedent, as noted previously. Therefore, as described

above, we follow the Court’s relief framework from Collins. Leachco’s irreparable

harm arguments fail under this framework.

2. In the Context of Considering Whether Leachco Has Established Irreparable Harm (Necessary to Support its Claim for a Preliminary Injunction), We Next Consider its Only Preserved Theory of Harm, Which is its Claim that it was Required to Appear Before an Unconstitutionally Structured Agency Leachco further cannot satisfy the irreparable harm element for a preliminary

injunction because it has not shown that the CPSC is unconstitutionally structured,

which is the premise of its only preserved irreparable harm argument. In other

words, without a constitutional violation, Leachco has no harm, let alone irreparable

harm. Leachco cites a number of cases that it believes support its constitutional

challenges, and the government responds with cases it believes refute those

challenges. As the parties have presented case law and arguments on the merits of

the constitutional issues because Leachco’s irreparable harm argument is predicated

entirely on its ability to prevail on its constitutional arguments, we will address them

here. See Free the Nipple, 916 F.3d at 806 (“[I]n the context of constitutional claims, the

[‘constitutional-violation-as-irreparable-injury’] principle collapses the first and second

22 Appellate Case: 22-7060 Document: 010111060075 Date Filed: 06/04/2024 Page: 23

preliminary-injunction factors, equating likelihood of success on the merits with a

demonstration of irreparable injury.”). Here, there is precedent from the Supreme Court,

this court, and other federal courts casting doubt on Leachco’s constitutional challenge to

the CPSC.

a. Based on History and Precedent, the CPSC Commissioners’ Removal Protections are Constitutional “In separation-of-powers cases th[e Supreme] Court has often ‘put significant

weight upon historical practice.’” Zivotofsky ex rel. Zivotofsky v. Kerry, 576 U.S. 1,

23 (2015) (quoting NLRB v. Noel Canning, 573 U.S. 513, 524 (2014)).

This nation’s history indicates that Congress and the President have both long

valued a relatively independent agency as a means of addressing specialized disputes

with specialized expertise and providing at least a temporal degree of some

independence for the agency from short-term political pressures that may not always

have been welcome, even by the President. 10 Independent agencies date back to at

least 1887, when Congress created the Interstate Commerce Commission, a non-

partisan, expert body tasked with monitoring railroads for compliance with federal

law. Interstate Commerce Act of 1887, ch. 104, 24 Stat. 379. Congress created more

10 See Seila Law, 140 S. Ct. at 2236-37 (Kagan, J., concurring in the judgment in part and dissenting in part) (explaining that the Court has generally left the issue of agency structure to the political branches, and those branches sometimes favor independent agencies because “[i]nsulation from political pressure helps ensure impartial adjudications. It places technical issues in the hands of those most capable of addressing them. It promotes continuity, and prevents short-term electoral interests from distorting policy.”); Humphrey's Executor v. United States, 295 U.S. 602, 625-26 (1935) (analyzing the FTC Act and its creation of the FTC). 23 Appellate Case: 22-7060 Document: 010111060075 Date Filed: 06/04/2024 Page: 24

independent agencies in the early twentieth century, and the Supreme Court upheld

the constitutionality of such agencies when challenged. For example, in Humphrey’s

Executor v. United States, a unanimous Supreme Court upheld the structure of the

Federal Trade Commission (FTC), an independent agency created by Congress in

1914 and tasked with policing unfair methods of competition, against a constitutional

challenge similar to the argument advanced by Leachco in this case. 295 U.S. 602,

620 (1935). Since the Supreme Court’s decision in Humphrey’s Executor, the

constitutionality of independent agencies, whose officials possess some degree of

removal protection that insulates them from unlimited and instantaneous political control,

has been uncontroversial. See, e.g., Morrison v. Olson, 487 U.S. 654, 724-25 (1988)

(Scalia, J., dissenting) (stating that since Humphrey’s Executor, “removal restrictions

have been generally regarded as lawful for so-called ‘independent regulatory

agencies,’ such as . . . the Consumer Product Safety Commission”). 11

We just briefly consider Leachco’s constitutional challenges to the CPSC’s

structure and the precedent it asserts to support those constitutional challenges, which

11 In fact, the statutory removal protections with which Leachco takes issue here were accepted and signed into law by a President, the head of the Executive Branch. They were not restrictions imposed upon an unwilling Executive Branch. Rather, the Executive Branch affirmatively chose to accept some insulation for its agencies and commissions from short term political control to ensure the good and faithful execution of its executive duties. See Consumer Product Safety Act, Pub. L. No. 92-573, 86 Stat. 1207 (1972) (creating CPSC and removal protections for CPSC commissioners, signed into law by President Nixon); Civil Service Reform Act of 1978, Pub. L. No. 95-454, 92 Stat. 1111 (creating removal protection for ALJs, signed into law by President Carter). The removal protections at issue in this case originated with the exercise of, rather than limitations on, Presidential discretion. 24 Appellate Case: 22-7060 Document: 010111060075 Date Filed: 06/04/2024 Page: 25

are necessary predicates to its only preserved claim for preliminary injunctive relief

in this interlocutory appeal—that it will be harmed by being forced even to appear

before an unconstitutional agency. Leachco argues the provision restricting the

President’s power to remove CPSC commissioners except “for neglect of duty or

malfeasance in office but for no other cause” violates Article II and the Separation of

Powers. (Aplt. Br. 15); 15 U.S.C. § 2053(a). Precedential decisions by the Supreme

Court and this court have addressed the constitutionality of similar removal

protections.

In Humphrey’s Executor, the Supreme Court upheld a provision restricting the

President’s power to remove FTC commissioners except for “inefficiency, neglect of

duty, or malfeasance in office.” 295 U.S. at 623, 629. As explained recently by the

Supreme Court in Seila Law, the Court’s decision in Humphrey’s Executor was based

on both the structure of the FTC and the functions performed by the FTC: the FTC

was “non-partisan,” as there were five commissioners with no more than three from

the same political party; the FTC was “neither political nor executive,” but was

instead a body of experts; the FTC commissioners’ “staggered, seven-year terms

enabled the agency to accumulate technical expertise and avoid a ‘complete change’

in leadership ‘at any time’”; and the FTC did not wield “substantial executive

power”—its functions were “quasi-legislative” (submitting reports to Congress) and

“quasi-judicial” (serving as a master in equity for antitrust suits). 140 S. Ct.

at 2198-2200 (citing Humphrey’s Executor, 295 U.S. at 624, 628)). Importantly, the

25 Appellate Case: 22-7060 Document: 010111060075 Date Filed: 06/04/2024 Page: 26

Supreme Court in Seila Law clearly stated that Humphrey’s Executor remains

binding today. Seila Law, 140 S. Ct. at 2206.

In a similar case, SEC v. Blinder, Robinson & Co., this court upheld a

restriction on the power of the President to remove SEC commissioners except for

“inefficiency, neglect of duty or malfeasance in office.” 855 F.2d 677, 682 (10th Cir.

1988). The SEC had five commissioners, no more than three could be from the same

political party, and the commissioners served staggered, five-year terms. Id. at 681.

In Blinder, Robinson, we relied on the Supreme Court’s decisions in Humphrey’s

Executor and Morrison v. Olson. Blinder, Robinson, 855 F.2d at 681-82. In

Morrison, the Court upheld a “good cause” removal protection for an independent

counsel, even though “the functions performed by the independent counsel [were]

‘executive’ in the sense that they [were] law enforcement functions that typically have

been undertaken by officials within the Executive Branch.” 487 U.S. at 691-92. In

doing so, the Court suggested that removal protections for officers in agencies with

civil enforcement powers, including the CPSC, were constitutional. See id. at 691-92

n.31.

The CPSC is structured similarly to the FTC in Humphrey’s Executor and the

SEC in Blinder, Robinson: there are five CPSC commissioners, no more than three

can be from the same political party, and they serve staggered, seven-year terms.

15 U.S.C. § 2053(a), (b)(1), (c). And while the CPSC has investigatory powers, as

well as civil and criminal enforcement powers, the Supreme Court’s statements in

Morrison suggest that the exercise of some arguably “executive” functions does not

26 Appellate Case: 22-7060 Document: 010111060075 Date Filed: 06/04/2024 Page: 27

undermine the constitutionality of tenure protections for officers of an expert,

non-partisan agency. See 15 U.S.C. § 2076(b)(7).

Next is Seila Law. There, the Court held that a provision restricting the

President’s power to remove the director of the Consumer Financial Protection

Bureau (CFPB) except for “inefficiency, neglect of duty, or malfeasance in office”

was unconstitutional. 140 S. Ct. at 2193, 2201. While part of the Court’s reasoning

focused on the executive nature of powers given to the CFPB director, the Court also

emphasized that the CFPB’s single-director structure was unique and perhaps

suggested that the constitutional issue might be resolved if the CFPB was instead

headed by multiple commissioners. Id. at 2200, 2204 (“In addition to lacking the

most direct method of presidential control—removal at will—the agency’s unique

structure also forecloses certain indirect methods of Presidential control. Because the

CFPB is headed by a single Director with a five-year term, some Presidents may not

have any opportunity to shape its leadership and thereby influence its activities.”

(emphasis added)); id. at 2211 (when discussing the possibility of severing the

removal restriction from the rest of the CFPB’s organic statute, “[o]ur severability

analysis does not foreclose Congress from pursuing alternative responses to the

problem—for example, converting the CFPB into a multimember agency.”).

Significantly, as previously noted, the Court in Seila Law did “not revisit [its] prior

decisions [upholding] certain limitations on the President’s removal power,”

including Humphrey’s Executor. Id. at 2192. Therefore, Humphrey’s Executor

remains good law.

27 Appellate Case: 22-7060 Document: 010111060075 Date Filed: 06/04/2024 Page: 28

Additionally, there is very current precedent from both the Court of Appeals

for the Fifth Circuit and a federal district court supporting the position we are taking

in this opinion. The Fifth Circuit recently decided Consumers’ Research v. CPSC,

where the plaintiffs brought an Article II challenge to the CPSC commissioners’

removal protections. 91 F.4th 342 (5th Cir. 2024). The Fifth Circuit explained that,

given the CPSC’s structure—five members who serve staggered, seven-year terms,

with no more than three from the same political party—it is a “mirror image of the

Federal Trade Commission (FTC),” whose structure was upheld in Humphrey’s

Executor. Id. at 346. The Fifth Circuit then proceeded to analyze whether the

Supreme Court’s decision in Seila Law compelled the conclusion that the CPSC

commissioners’ removal protections are unconstitutional under that precedent. The

Fifth Circuit concluded, just as we have above, that the CPSC commissioners are

distinguishable from the CFPB director, whose removal protections were struck down

in Seila Law, because: 1. Unlike the CFPB, the CPSC’s structure is well-grounded in

historical precedent—it is structured similarly to many other independent,

multimember agencies; 2. Unlike the CFPB, the CPSC is not headed by a single

director—there are five CPSC commissioners; and 3. The CPSC commissioners’

staggered terms mean that each President has an opportunity to influence the CPSC’s

leadership, and the President can also influence the CPSC through the budgetary

process. Id. at 354-55. The Fifth Circuit ultimately held, exactly as we have above,

that Humphrey’s Executor remains binding precedent and controls in cases

challenging removal protections for CPSC commissioners. Id. at 352. (“The holding

28 Appellate Case: 22-7060 Document: 010111060075 Date Filed: 06/04/2024 Page: 29

from Humphrey’s controls, the holding authorizes the [CPSC]’s structure, and the

holding requires us to reverse the district court’s judgment” that the CPSC’s structure

is unconstitutional).

Even more recently, the United States District Court for the District of

Massachusetts adopted the Fifth Circuit’s reasoning from Consumers’ Research and

rejected a constitutional challenge to the CPSC commissioner’ removal protections.

United States v. SunSetter Prods. LP, No. 23-cv-10744-ADB, 2024 WL 1116062

(D. Mass. Mar. 14, 2024). In SunSetter, the court explained that Humphrey’s

Executor remains binding and “continues to apply to any traditional independent

agency headed by a multimember board, . . . like the CPSC.” Id. at *4 (internal

quotations and citations omitted).

Ultimately, the position asserted by Leachco would require us to revisit our

own binding precedent as well as generate a split with the Fifth Circuit and depart

from the general weight of authority, as described above. Given the clear

precedential support for the CPSC commissioners’ removal protections, we conclude

that Leachco has failed to establish at this preliminary stage of the proceedings that

such protections are unconstitutional and therefore Leachco has failed to demonstrate

that such protections will cause it the narrow structural harm upon which it relies in

this preliminary injunction appeal.

b. The Removal Protections of CPSC ALJs are also Constitutional Leachco also challenges the removal protections for ALJ Young—the

presiding officer in the CPSC proceedings against Leachco. (Aplt. Br. 21). As an

29 Appellate Case: 22-7060 Document: 010111060075 Date Filed: 06/04/2024 Page: 30

ALJ, Young may only be removed “for good cause established and determined by the

Merit Systems Protection Board [‘MSPB’] on the record after opportunity for hearing

before the Board.” 5 U.S.C. § 7521(a). This means that for ALJ Young to be

removed, the MSPB would have to find “good cause,” and the CPSC commissioners

would have to choose to act on this finding. MSPB members and CPSC

commissioners are also protected by similar removal restrictions. 5 U.S.C. § 1202(d)

(MSPB members can only be removed for “inefficiency, neglect of duty, or

malfeasance in office”); 15 U.S.C. § 2053(a) (removal protection for CPSC

commissioners). Leachco argues that this double-layered removal protection for ALJ

Young—where he can only be removed for “good cause,” and the MSPB members

and CPSC commissioners responsible for his removal also have removal

protections—is unconstitutional.

Generally speaking, it is constitutional for Congress to protect inferior officers

with “good cause” removal restrictions. Morrison, 487 U.S. at 692-93; Free Enter.

Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477, 495 (2010); see Lucia v. SEC,

585 U.S. 237, 244 n.3 (2018) (ALJs are “inferior officers”). However, in Free

Enterprise Fund, the Supreme Court concluded, without overruling that general rule

from Morrison, that Congress violated Article II when it gave inferior officers who

exercised significant regulatory powers two layers of tenure protections. Free

Enterprise Fund, 561 U.S. at 498. That case involved the Public Company

Accounting Oversight Board (“PCAOB”), which had the power to regulate the

public-company accounting industry, both through rulemaking and enforcement

30 Appellate Case: 22-7060 Document: 010111060075 Date Filed: 06/04/2024 Page: 31

actions. Id. at 485. Members of the PCAOB could only be removed by a vote of the

SEC, after notice and a hearing, and only if the SEC found that the member either

(1) willfully violated the Sarbanes-Oxley Act, Board rules, or other securities laws,

(2) willfully abused their authority, or (3) “without reasonable justification or excuse,

has failed to enforce compliance with” securities laws, Board rules, or professional

accounting standards. Id. at 486. And the SEC commissioners can only be removed

by the President for good cause. Id. at 487.

The Court in Free Enterprise Fund explicitly stated that its holding, which

struck down double-layered tenure protections for PCAOB members, did not address

the constitutionality of similar tenure protections for inferior officers who perform

adjudicative functions, including ALJs. Free Enterprise Fund, 561 U.S. at 507 n.10

(“[O]ur holding also does not address that subset of independent agency employees who

serve as administrative law judges. . . [U]nlike members of the Board, many

administrative law judges of course perform adjudicative rather than enforcement or

policymaking functions, . . . or possess purely recommendatory powers.” (citations

omitted)); Lucia, 585 U.S. at 244 n.1 (acknowledging that constitutionality of ALJs’

removal protections remains an open question). This court similarly has not decided

whether Free Enterprise Fund’s analysis applies to ALJs.

The Ninth Circuit addressed the constitutionality of double-layered “good cause”

removal protections for Department of Labor ALJs in Decker Coal Co. v. Pehringer. 8

F.4th 1123 (9th Cir. 2021). The court concluded that Free Enterprise Fund’s analysis

did not apply, and that the removal protections were constitutional, for four reasons:

31 Appellate Case: 22-7060 Document: 010111060075 Date Filed: 06/04/2024 Page: 32

1. The ALJ at issue was “performing a purely adjudicatory function,” as opposed to

the “policymaking and enforcement functions” performed by PCAOB members; 2.

The statutory scheme at issue did not require the use of an ALJ in adjudications, so

the President could order the Secretary of Labor to have the DOL adjudicate such

claims using a different “qualified individual” who did not have the tenure

protections; 3. The “good cause” standard for ALJ removal “suggests a lesser

impingement on presidential authority” than the complex standard for PCAOB

member removal in Free Enterprise Fund; and 4. ALJ decisions were subject to

review by the Benefits Review Board (BRB), whose members could be removed by

the Secretary of Labor at will. Decker Coal, 8 F.4th at 1133-35.

We find the Ninth Circuit’s analysis in Decker Coal persuasive here because

ALJ Young performed “a purely adjudicatory function,” Congress did not statutorily

require that the CPSC use ALJs for administrative adjudications, and the “good

cause” standard in the provision restricting—but not precluding—ALJs’ removal is a

“lesser impingement” than the standard at issue in Free Enterprise Fund. See 5

U.S.C. § 556(b). And while the Fifth Circuit found double-layered removal

protections for ALJs unconstitutional in Jarkesy v. Securities and Exchange

Commission, that court seemed to disregard the distinction between the PCAOB

members in Free Enterprise Fund, who exercised executive functions, and ALJs, who

perform adjudicatory functions. 34 F.4th 446, 465 (5th Cir. 2022), cert. granted,

143 S. Ct. 2688 (2023), and cert. denied, 143 S. Ct. 2690 (2023). Supreme Court

precedent establishes that this distinction matters. See Free Enterprise Fund, 561

32 Appellate Case: 22-7060 Document: 010111060075 Date Filed: 06/04/2024 Page: 33

U.S. at 507 n.10; Seila Law, 140 S. Ct. at 2199 (recognizing Humphrey’s Executor’s

distinction between officers with “quasi-judicial” or “quasi-legislative” functions and

“purely executive officers” (citation omitted)).

The foregoing analysis convinces us that Leachco has not, at this stage of the

proceedings, established that it will suffer the irreparable harm that it relies on here if

the preliminary injunction does not issue. The precedential support for the

constitutionality of the CPSC’s structure necessarily helps inform our determination

that Leachco has failed to establish irreparable harm, as required to obtain a

preliminary injunction.

IV. CONCLUSION

We conclude that the district court correctly decided that Leachco has failed

sufficiently to demonstrate that it will suffer irreparable harm if not granted a

preliminary injunction. Under this court’s precedent as described in Aposhian, the

separation of powers violations alleged by Leachco, alone, are insufficient to

establish irreparable harm for the purposes of supporting a preliminary injunction.

Aposhian, 958 F.3d at 990. Instead, under Collins, to be entitled to relief, Leachco

needed to demonstrate how the allegedly unconstitutional removal protections for CPSC

commissioners and ALJs actually affected, or will affect, the CPSC’s actions against it.

Collins, 141 S. Ct. at 1788-89. The Supreme Court’s jurisdictional analysis in Axon

did not change the relief analysis required under Collins. Leachco failed to

demonstrate how the challenged removal provisions have made, or will make, any

difference in the CPSC’s actions against it. Under Collins, this means Leachco has

33 Appellate Case: 22-7060 Document: 010111060075 Date Filed: 06/04/2024 Page: 34

failed to establish that the challenged provisions will cause it irreparable harm.

Further, current Supreme Court and Tenth Circuit precedent, as well as recent case

law from other federal courts, casts doubt on the merit of Leachco’s constitutional

challenges to the CPSC’s structure, which are necessary predicates of its only

preserved irreparable harm argument. Therefore, we AFFIRM the district court’s

denial of Leachco’s motion for a preliminary injunction.