NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 22-3046

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In re: 710 LONG RIDGE ROAD OPERATING COMPANY II, LLC, et al.,

 Debtors

NATIONAL LABOR RELATIONS BOARD,

 Appellant

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APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF NEW JERSEY

(D.C. Civ. Action Nos. 2-14-cv-01725, 2-14-cv-01726, 2-14-cv-02057, 

2-14-cv-02058, 2-14-cv-02353, 2-14-cv-02354) 

District Judge: Honorable Julien X. Neals

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Argued

January 24, 2023

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Before: GREENAWAY, JR., BIBAS, and FUENTES, Circuit Judges.

(Opinion Filed: April 27, 2023)

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OPINION*

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* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 

does not constitute binding precedent.
2

Jennifer A. Abruzzo

Peter Sung Ohr

Nancy E. Kessler Platt

Dawn L. Goldstein

Paul A. Thomas

Andrew J. Ziaja [ARGUED]

National Labor Relations Board

1015 Half Street, S.E.

Washington, DC 20570

Julie I. Kaufman

National Labor Relations Board

Region 22

20 Washington Place

5th Floor

Newark, NJ 07102

Attorneys for Appellant

Michael D. Sirota [ARGUED]

Cole Schotz

25 Main Street

Court Plaza North, P.O. Box 800

Hackensack, NJ 07601

Ryan T. Jareck

Cole Schotz

1325 Avenue of the Americas

19th Floor

New York, NY 10019

Attorneys for Appellees

GREENAWAY, JR., Circuit Judge.

This appeal emerges from nearly ten years of litigation surrounding the labor 

practices and bankruptcy of several skilled nursing facilities. Though the procedural 

history and underlying facts are complex, the question before us is simple: did the 

District Court err when it entered a preliminary injunction against the National Labor 
3

Relations Board (“NLRB”).1

The preliminary injunction was entered in a bankruptcy appeal pending before the 

District Court. The appeal arose from the NLRB’s efforts to seek review of several 

orders entered by the Bankruptcy Court, including the order confirming the 

reorganization plan (“the Plan”) of several skilled nursing facilities.2 Basing the

preliminary injunction on its interpretation of various provisions of the Plan, the District 

Court’s order restrained the NLRB from “investigating, pursuing, or otherwise 

prosecuting the Released Claims against the Releasees.”

3

 Dist. Ct. Ord. of October 26, 

1 The National Labor Relations Act (NLRA), as amended, separates the NLRB’s 

prosecutorial and adjudicatory functions. The NLRA establishes the position of General 

Counsel and vests him or her with “final authority, on behalf of the Board, in respect of 

the investigation of [unfair labor practice] charges and issuance of complaints . . . , and in 

respect of the prosecution of such complaints before the Board.” 29 U.S.C. § 153(d). 

Section 153(a) creates a five-member Board, which is empowered by § 160(a), to 

adjudicate unfair labor practice complaints brought by the General Counsel. 

For these reasons, where this opinion refers to “the NLRB,” it means the agency 

acting in its prosecutorial role through the General Counsel. Where it refers to “the 

Board,” it means the five-member adjudicative body established by Congress to decide 

cases under the NLRA.

2 The facilities are 710 Long Ridge Road Operating Company II, LLC, 240 

Church Street Operating Company II, LLC, 1 Burr Road Operating Company II, LLC, 

245 Orange Avenue Operating Company II, LLC and 107 Osborne Street Operating 

Company II, LLC, (collectively “Appellees”).

3

 As identified by Appellees in connection with the application for a preliminary 

injunction, the Releasees include “Care One, LLC, Care Realty, HealthBridge 

Management, LLC, and the affiliated landlords.” DDE 128-18 at 13. Prior to adoption 

of the Plan, Care Realty was the indirect parent company of the Appellees. 
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2022 at 2 (DDE 203). As we explain below, the District Court erred in its interpretation 

of the specific terms of the Plan. We therefore vacate the preliminary injunction.

A. Facts and background

For purposes of this appeal, we will summarize the events of this decade-old 

litigation relevant to the issues at hand. 

In 2012, the NLRB began administrative proceedings against Appellees, alleging 

that Appellees engaged in unfair labor practices. The following year, citing unsustainable 

labor costs arising from collective bargaining agreements (CBAs) with their unionized 

workforce, Appellees filed for bankruptcy protection pursuant to Chapter 11. 

On October 22, 2013, Appellees filed a proposed reorganization plan. The 

proposed plan included several third-party releases and related injunctions. As relevant 

here, the NLRB objected to the third-party releases in the proposed plan, arguing that the 

Bankruptcy Court lacked subject-matter jurisdiction to enjoin the NLRB’s administrative 

proceedings. In response to this objection, and as relevant here, Appellees offered a 

revision – the language now contained in § 9.4 of the Plan. Section 9.4 of the Plan states 

that: 

Subject to all provisions of this Article IX, including the releases, 

neither this Section 9.4 of the Plan nor any Confirmation Order shall 

operate as an injunction with respect to, or otherwise limit or enjoin, 

the NLRB’s rights under the NLRA and any exclusive jurisdiction 

thereunder to fix a claim against any Releasee in the ALJ 

Proceedings.

BDE 899 at 8. 
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After additional negotiations not relevant here, the Bankruptcy Court confirmed 

the Plan on March 6, 2014. In the opinion confirming the Plan, the Bankruptcy Court 

observed that, “[w]hile the Plan in its original form may have been read to enjoin the 

NLRB’s rights to fix a claim against any Releasee in the ALJ proceedings, the Debtors’ 

second modifications to the Plan clarify that the Third-Party Releases are not meant to 

function in this manner.” BDE 983 at 24. The NLRB filed a timely appeal, seeking 

review of the Plan, as well as various other orders entered by the Bankruptcy Court. 

While the bankruptcy proceeding moved ahead, so did the NLRB administrative 

proceedings before the administrative law judge (ALJ). However, in 2014, those 

administrative proceedings were stayed, pending disposition of an interlocutory appeal to 

the Board. The stay was lifted in 2019 when the Board denied that appeal, thus 

prompting the proceedings before the ALJ to resume.

Before the ALJ, the administrative proceedings were bifurcated. “[T]he parties 

agreed to present the evidence regarding the joint and single employer allegations after 

presenting their evidence regarding the other allegations in the complaint.” DDE 128-13 

at n.1. When the NLRB issued third-party subpoenas seeking information in support of 

the NLRB’s pursuit of the joint/single employer allegations in the complaint, Appellees 

objected. Unable to convince the NLRB to withdraw the subpoenas, Appellees sought a 

preliminary injunction before the District Court, where the bankruptcy appeal was still 

pending. 

Appellees sought to enjoin the NLRB from pursuing Released Claims against Care 
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Realty. Hours after the ALJ ordered compliance with the subpoenas, the District Court 

issued a preliminary injunction. The preliminary injunction provided in relevant part 

“that the NLRB, be and hereby is preliminarily restrained and enjoined pending final 

adjudication of this matter from investigating, pursuing, or otherwise prosecuting the 

Released Claims against the Releasees.” Dist. Ct. Ord. of October 26, 2022 at 2 (DDE 

203). 

B. Jurisdiction and Standard of Review

We have jurisdiction pursuant to 28 U.S.C. § 1292(a). The District Court had 

jurisdiction over the bankruptcy appeal pursuant to 28 U.S.C. § 158(a). The motion 

seeking a preliminary injunction was filed as part of the bankruptcy appeal. In the 

motion seeking the preliminary injunction, Appellees asked the District Court to interpret 

the Plan. The District Court possessed jurisdiction to interpret the plain text of the Plan. 

Had the District Court interpreted the plain text of that Plan correctly, it would have 

found that it could not enjoin the agency.

Before us, the NLRB argues that the District Court lacked jurisdiction to enter the 

preliminary injunction. The NLRB’s argument rests on its assertion that, pursuant to 29 

U.S.C. § 160, the Bankruptcy Court lacked jurisdiction to enjoin the administrative 

proceedings pending before the ALJ. The NLRB’s argument continues by positing that 

the District Court lacked jurisdiction over this case because ordinary bankruptcy 

jurisdiction does not “allow[ ] interference with ongoing unfair labor practice cases.” 

Appellant’s Br. at 34-35. Essentially, the NLRB asserts that no federal court—neither the 
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Bankruptcy Court nor the District Court—has jurisdiction to enjoin administrative 

proceedings pending before an ALJ. 

The NLRB’s argument ignores the underlying facts of this case. As we noted 

above, the NLRB expressed its concerns about the Bankruptcy Court’s jurisdiction when 

the NLRB objected to the proposed reorganization plan. Appellees offered a 

modification to the draft plan to address this concern. The Bankruptcy Court 

acknowledged this response to the NLRB’s jurisdictional objections in the opinion 

confirming the Plan. As we explain below, nothing in the Plan approved by the 

Bankruptcy Court enjoined the NLRB or prevented it from pursuing the administrative 

proceedings. Therefore, the NLRB’s arguments regarding the impact of 29 U.S.C. § 160 

and cases interpreting that statute are misplaced.4

“When reviewing a district court’s grant of a preliminary injunction, we review 

4

Judge Bibas would vacate the preliminary injunction and remand with instructions 

to dismiss the Debtors’ request for injunctive relief for lack of jurisdiction. The National 

Labor Relations Act gives the NLRB “exclusive” jurisdiction over unfair-labor-practice 

proceedings. Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 48 (1938); see 29 

U.S.C. §160(a). And courts sitting in bankruptcy lack jurisdiction over proceedings that 

are committed to the exclusive jurisdiction of an administrative agency. See Bd. of 

Governors of Fed. Rsrv. Sys. v. MCorp Fin., Inc., 502 U.S. 32, 41–42 (1991). So, he 

reasons, the District Court “erred when it held that it had jurisdiction to consider the merits” 

of Care Realty’s challenge to the NLRB’s unfair-labor-practice proceeding. Id. at 44.

The majority says that the NLRB’s jurisdictional challenge misses the mark 

because there was nothing in the Confirmation Plan that would merit an injunction 

anyway. But according to Judge Bibas, that puts the cart before the horse. Courts must 

consider their jurisdiction to entertain a challenge before opining on its merits. See Steel 

Co. v. Citizens for a Better Env’t, 523 U.S. 83, 93–110 (1998).
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the court’s findings of fact for clear error, its conclusions of law de novo, and the ultimate 

decision granting the preliminary injunction for an abuse of discretion.” Mallet and Co. 

Inc. v. Lacayo, 16 F.4th 364, 379 n.17 (3d Cir. 2021) (quoting Bimbo Bakeries USA, Inc. 

v. Botticella, 613 F.3d 102, 109 (3d Cir. 2010)). 

C. Analysis

In reviewing an application for a preliminary injunction, we apply a four-factor 

test. First, the moving party must demonstrate a likelihood of success on the merits of its 

claim. Second, there must be a showing of irreparable harm, should the preliminary 

injunction be denied. “Absent either of those threshold factors, ‘[w]e cannot sustain a 

preliminary injunction ordered by the district court[.]’” Id. at 380 (quoting Hoxworth v. 

Blinder, Robinson & Co., Inc., 903 F.2d 186, 197 (3d Cir. 1990)). If the first two factors 

are established, we turn to the final two factors: “whether granting relief will result in 

even greater harm to the nonmoving party or other interested persons and whether the 

public interest favors such relief.” Id. Notably, the last two “factors merge when the 

Government is the opposing party.” Nken v. Holder, 556 U.S. 418, 435 (2009). After 

evaluating all four factors, we finally determine “whether the balance of all four factors 

warrants granting preliminary relief.” Mallet, 16 F.4th at 380. 

With respect to likelihood of success on the merits, the District Court found “that 

Appellees have demonstrated a likelihood of success on the merits on the basis that: (i) 

the Releasees, including Care Realty, have been released from the Released Claims, 

including claims based on joint employer, single employer, and single integrated 
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enterprise theories, pursuant to the Plan; and (ii) the NLRB lacks the ability to 

unilaterally act to determine that Care Realty is in violation of the Plan given the ongoing 

and well-documented dispute concerning Care Realty's obligations under the Plan.” Dist. 

Ct. Op. of October 26, 2022 at 29 (DDE 202).

We find that the District Court’s reasoning fails at the first factor – likelihood of 

success on the merits. Appellees assert that they are likely to succeed because the 

NLRB’s argument that the Confirmation Plan allows the NLRB to fix claims will fail. 

According to Appellees, this is because “the NLRB’s efforts go well beyond what is 

necessary for the NLRB to fix its Backpay Claim against the Appellees for purposes of 

determining its distribution under the Plan.” Appellees’ Br. at 39. 

In light of the broad language of § 9.4, we conclude that nothing in the Plan 

enjoins the NLRB from moving forward with the administrative proceedings before the 

ALJ. In their argument, Appellees modify the language of the Plan by inserting 

“Backpay” before “claim” to suggest that only certain claims brought by the NLRB are 

protected from the Releases. The plain language of § 9.4 creates no such limitation. 

Instead, § 9.4 states that nothing shall serve to enjoin the NLRB’s efforts “to fix a claim 

against any Releasee in the ALJ Proceedings.” BDE 899 at 8. Lacking any modifier 

regarding the term “claim,” Appellees’ attempt to avoid the broad language of § 9.4 must 

fail. 

Fixing a claim is exactly what the NLRB is attempting to do in the administrative 

proceeding. The subpoenas seek information that the NLRB believes is necessary to 
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support its arguments with respect to the joint/single employer allegations. Section 9.4 

allows the NLRB to proceed in its efforts to resolve that issue. The District Court failed 

to address the impact of § 9.4, and, in doing so, legally erred. 

Since “a court of appeals must reverse if the district court has proceeded on the 

basis of an erroneous view of the applicable law,” Mallet, 16 F.4th at 379 n.17 (quoting

Kos Pharms., Inc. v. Andrx Corp., 369 F.3d 700, 708 (3d Cir. 2004)), we are compelled 

to reverse the District Court’s decision here, and consequently vacate the preliminary 

injunction. 

D. Conclusion

For the foregoing reasons, we will vacate the preliminary injunction.