Fifth Circuit Tightens “Effective Denial” Doctrine: Concrete Urgency and Diligent, Date-Certain Requests Are Required to Invoke § 1292(a)(1) Jurisdiction

Introduction

This commentary examines the Fifth Circuit’s substituted opinion in Amazon.com Services LLC v. National Labor Relations Board, issued May 6, 2025. The case arises from two National Labor Relations Board (NLRB) proceedings concerning an April 2022 union election at Amazon’s Staten Island fulfillment center: (1) an election challenge (the “Election Case”) and (2) a refusal-to-bargain case (the “Bargaining Case”). After the NLRB denied review in the Election Case and moved toward summary disposition in the Bargaining Case, Amazon filed suit in the Western District of Texas seeking to enjoin what it characterized as unconstitutional administrative proceedings. When the district court did not rule by a date Amazon later asserted was critical, Amazon noticed an appeal, arguing the court had “constructively denied” its motion for injunctive relief.

The Fifth Circuit dismissed the appeal for lack of appellate jurisdiction under 28 U.S.C. § 1292(a)(1), holding that the district court did not “effectively” deny injunctive relief. The majority sharpened the standards for when a failure to rule promptly can be treated as a denial: the appellant must show both a legitimate, non-speculative basis for urgency and diligent, specific (date-certain) requests for a ruling. A dissent by Judge Richman would have found jurisdiction, emphasizing the risk that the NLRB could moot Amazon’s constitutional claims at any time after the show-cause deadline and relying on the Supreme Court’s recognition of “here-and-now” structural injuries in Axon Enterprise v. FTC.

Summary of the Judgment

• The Fifth Circuit withdrew a prior panel opinion and substituted this one.
• Issue: Whether the district court’s failure to rule by September 27, 2024, on Amazon’s motion for a temporary restraining order (TRO) and preliminary injunction amounted to a “constructive” or “effective” denial under § 1292(a)(1), thereby creating appellate jurisdiction.
• Holding: No. The district court did not effectively deny the injunction. Amazon failed to (a) act diligently in seeking a ruling by a specific date and (b) establish a legitimate basis for emergency action beyond theoretical risk that the NLRB might act immediately.
• Rationale: Applying In re Fort Worth Chamber of Commerce (5th Cir. 2024), the court stressed context-dependent urgency, the movant’s diligence (including repeated, date-certain requests), and the district court’s active management. The court distinguished Fort Worth, where a binding compliance deadline created a short, concrete window, and the movant repeatedly sought date-certain relief.
• Result: Appeal dismissed for lack of jurisdiction because there was no order “refusing” an injunction nor the practical equivalent of one. The dissent would have found jurisdiction.

Analysis

Precedents Cited and Their Influence

• 28 U.S.C. § 1292(a)(1): Authorizes interlocutory appeals from orders “granting, continuing, modifying, refusing or dissolving injunctions.” The key question is whether the district court’s inaction had the “practical effect” of refusing an injunction.
• Carson v. American Brands, Inc., 450 U.S. 79 (1981): An order may be appealable if it has the “practical effect” of denying injunctive relief. The Fifth Circuit relies on Carson’s functional approach to determine whether an appeal lies where the district court has not explicitly denied an injunction.
• In re Fort Worth Chamber of Commerce, 100 F.4th 528 (5th Cir. 2024): The Fifth Circuit’s most recent and central guidance. It held that constructive denial depends on context:
  • Preliminary relief must be prompt to be effective.
  • There must be a legitimate basis for urgency (e.g., a looming compliance deadline).
  • The movant must act diligently, including repeated requests for date-certain decisions and expedited schedules.
  • There, the court found constructive denial because a regulatory compliance window was closing and the plaintiff repeatedly sought a ruling by specified dates; the district court shifted focus to another motion instead of ruling.
• General Electric Co. v. Marvel Rare Metals Co., 287 U.S. 430 (1932): Supports appealability when the practical effect of an order is denial of injunctive relief, forming part of the doctrinal lineage that Carson later synthesized.
• United States v. Lynd, 301 F.2d 818 (5th Cir. 1962) and related Fifth Circuit cases (e.g., Overton v. City of Austin, 748 F.2d 941 (5th Cir. 1984)): Early examples on delays amounting to refusal. These inform how long is “too long” and when inaction becomes appealable, though the modern articulation is through Fort Worth’s framework.
• Axon Enterprise, Inc. v. FTC, 598 U.S. 175 (2023) (raised by the dissent): Recognizes “here-and-now” constitutional injuries from being subjected to an allegedly illegitimate administrative process—injuries that are not cured by post-proceeding review. The dissent invokes Axon to argue the urgency here was real and not speculative.

Legal Reasoning

The majority’s analysis proceeds in two steps that together tighten the “effective denial” doctrine in the Fifth Circuit.

1) Diligence: Repeated, date-certain requests are critical

• Amazon generally asked for “immediate” relief but did not, until September 26, 2024, request a ruling by a specific date (the morning of September 27). The court emphasizes that “wish” is not the same as “need” and that a litigant’s unilateral timetable does not create jurisdiction.
• At the September 24 hearing, Amazon acknowledged the NLRB “normally” takes weeks to decide but speculated that, here, a decision could issue quickly. Even then, it did not ask the court to rule by a specified date. When the court set noon on September 27 for supplemental letters, Amazon did not object or ask for an earlier, date-certain ruling.
• Only in its September 26 letter did Amazon state it would consider the motion effectively denied absent a ruling by the morning of the next day. The court held this was too late to show the repeated, date-certain diligence Fort Worth requires.

2) Legitimate urgency: Speculation about agency speed is insufficient

• Fort Worth hinged on a firm, externally imposed deadline (a compliance date), creating indisputable urgency. Here, the only “deadline” was the NLRB’s September 27 brief due date; there was no evidence the Board intended to, or likely would, issue a dispositive decision immediately thereafter.
• Both sides acknowledged the NLRB typically takes weeks or months to act. The district court held a timely hearing and said it would rule as soon as possible—and did, on September 29, before the “as-soon-as-Monday” date Amazon posited.
• Because the alleged harm depended on a theoretical and unsubstantiated possibility that the NLRB would act instantaneously, the majority found no “legitimate basis” for emergency relief. Mere possibility does not meet Fort Worth’s standard.

3) District court’s conduct weighed against “effective denial”

• Unlike Fort Worth, where the district court diverted attention to a different issue and failed to engage the injunction request, here the district court promptly held a hearing, invited supplemental letters, and issued an order two days after Amazon noticed its appeal.
• The majority underscores that litigants cannot manufacture interlocutory appellate jurisdiction simply by declaring a self-imposed deadline and appealing when a court does not meet it.

The Dissent

• Judge Richman would find appellate jurisdiction. She contends:
  • Legitimate urgency existed because the NLRB could issue summary judgment any time after September 27, extinguishing the district court’s ability to grant meaningful relief on Amazon’s “here-and-now” constitutional claims (citing Axon).
  • Amazon was sufficiently diligent: it sued days after the Board’s second show-cause notice, sought TRO/PI in the complaint and motion, repeatedly highlighted the show-cause deadline in filings and at the hearing, and even told the court it “wanted the TRO today.”
  • Because the risk of mooting was real and tied to the Board’s unilateral control of its docket, tethering constructive-denial analysis to the show-cause deadline was the only principled way to assess timeliness.
• The dissent also criticizes the majority’s reliance on how fast the district court actually ruled (September 29), because the motions panel had stayed the NLRB proceedings on September 30 and, in any event, the jurisdictional analysis should be frozen as of September 27.

Impact

This decision meaningfully tightens the path to invoking interlocutory appellate jurisdiction based on a district court’s “constructive” denial of injunctive relief in the Fifth Circuit.

• Higher bar for constructive denial: Litigants must show both (a) a non-speculative, concrete reason why relief must issue by a specific date, and (b) diligent, repeated, date-certain requests for a ruling. Mere apprehension that an agency “could” act is insufficient.
• Practical litigation guidance:
  • Move early and request expedited briefing and hearing in writing.
  • Identify a concrete, external deadline (e.g., a statutory or regulatory compliance date, a scheduled agency action) that creates genuine urgency.
  • Make repeated, date-certain requests for a ruling and explain why that date is outcome-determinative for preserving meaningful relief.
  • Build a clear record—at hearings and in filings—connecting the imminent date to irreversible consequences absent preliminary relief.
• Administrative law implications: Even after Axon recognized “here-and-now” structural injuries, parties seeking to halt agency proceedings must still meet Fort Worth’s urgency-and-diligence prerequisites to secure appellate review of any “effective denial.” Axon does not relax the procedural predicates for interlocutory jurisdiction.
• District court case management affirmed: The opinion underscores district courts’ broad discretion to control dockets and rejects litigant-imposed “effective denial” deadlines unless grounded in concrete, imminent harm.
• NLRB-related litigation: Parties seeking to enjoin NLRB proceedings must marshal specific facts showing imminent agency action—not just theoretical possibilities—and must repeatedly seek date-certain rulings to preserve potential § 1292(a)(1) appeals.

Complex Concepts Simplified

• “Constructive” or “Effective” Denial: Even if a court does not expressly deny an injunction, its inaction can function as a denial when delay means the requested relief would be too late to matter. The Fifth Circuit now requires (1) a legitimate, concrete urgency and (2) diligent, repeated, date-certain requests to treat inaction as a denial.
• Interlocutory Appeal under § 1292(a)(1): Most appeals must await a final judgment. Section 1292(a)(1) is a limited exception for orders about injunctions, including orders with the “practical effect” of denial. The Fifth Circuit construes this narrowly to avoid piecemeal appeals.
• Axon’s “Here-and-Now” Injury: The Supreme Court recognized that being subjected to an allegedly unconstitutional administrative process can be an immediate injury. But asserting such an injury does not independently establish interlocutory appellate jurisdiction; Fort Worth’s standards still govern if one claims a district court “effectively” denied an injunction.
• NLRB Election and Bargaining Cases: After a union wins an election, the NLRB may certify the union, and an employer must bargain. If the employer refuses, the General Counsel can prosecute a refusal-to-bargain complaint. Amazon challenged both the election’s integrity and the Board’s attempt to secure summary judgment in the bargaining case, alleging constitutional defects in the Board’s structure and process. The Fifth Circuit did not reach those merits.
• Make-Whole Remedies: The General Counsel sought make-whole relief tied to alleged lost bargaining opportunities. The district court called this prospect speculative and unripe at the TRO stage—another reason it did not find imminent irreparable harm.

Notable Procedural and Editorial Points

• Substituted opinion: The court expressly withdrew an earlier panel opinion and substituted this one. Practitioners should rely on the substituted opinion as the controlling text.
• Apparent scrivener’s errors: The opinion’s closing line references dismissal under “28 U.S.C. § 1291(a)(1)” (final decisions) rather than § 1292(a)(1) (interlocutory injunctions). The body of the opinion correctly relies on § 1292(a)(1). There is also a date incongruity regarding when the NLRB denied review in the Election Case versus the date it issued an updated show-cause notice. These do not affect the holding.

Conclusion

Amazon.com v. NLRB clarifies and tightens the Fifth Circuit’s “effective denial” pathway to interlocutory appellate jurisdiction under § 1292(a)(1). It establishes that a party cannot create appellate jurisdiction through generalized assertions of urgency or unilateral, last-minute “effective denial” declarations. Instead, the party must demonstrate a legitimate, concrete basis for emergency relief—typically anchored to an external, imminent event—and must show diligence through repeated, date-certain requests for a ruling and, ideally, an expedited schedule. The court’s approach preserves district court docket discretion and curbs piecemeal appeals, even in high-stakes administrative disputes where Axon recognizes “here-and-now” structural injuries.

The dissent’s focus on the risk of mooting and Axon’s recognition of structural harms highlights a tension practitioners should anticipate: while substantive constitutional injuries may be immediate, the gateway to interlocutory appellate review for constructive denial remains procedural, exacting, and context-driven. Going forward, litigants seeking to enjoin agency proceedings within the Fifth Circuit must carefully build a record of concrete imminence and sustained diligence if they hope to secure interlocutory review on an “effective denial” theory.