Board Member Gwynne Wilcox Reinstated Once Again
The NLRB has a quorum again.
The legal saga involving the Trump Administration’s firing of Gwynne Wilcox continued today as the DC Circuit vacated a previous order from a DC Circuit panel that had removed Wilcox from her Board Member position at the NLRB.
The entire history of this battle is summarized and linked on my Timeline of Notable NLRB Events During Trump's Second Term. The short of it is as follows:
January 28, 2025: Trump fired Board Member Wilcox in violation of the removal protections in Section 3(a) of the NLRA, setting up for a constitutional challenge to those removal protections.
March 6, 2025: The DC District Court ruled that Trump’s termination was illegal and reinstated Wilcox.
March 28, 2025: A three-member panel of the DC Circuit Court granted an emergency motion for a stay of the March 6 decision and removed Wilcox again.
April 7, 2025: The entire DC Circuit Court vacated the March 28 order and reinstated Wilcox again.
Because Wilcox is one of three current members of the NLRB, and the agency needs three members to have a quorum, the NLRB has had a quorum off and on during this period.
Below is a copy of the April 7 DC Circuit Court decision reinstating Wilcox followed by a summary.
This April 7, 2025 order from the D.C. Circuit Court of Appeals involves consolidated cases concerning Presidential removal powers over members of independent federal agencies. The en banc court vacated a previous panel order that had granted the government's motions for a stay pending appeal and instead denied those motions.
The cases involve two officials: Cathy Harris of the Merit Systems Protection Board (MSPB) and Gwynne Wilcox of the National Labor Relations Board (NLRB), who were removed from their positions by President Trump. Both officials challenged their removals in district court, which ruled in their favor and issued permanent injunctions ordering executive officials to treat them as if they had never been removed. A panel of the D.C. Circuit previously stayed these injunctions pending appeal, but the full en banc court has now reversed that decision.
The majority opinion emphasizes that Supreme Court precedent in Humphrey's Executor and Wiener upheld removal restrictions for officials on multimember adjudicatory boards. While the Supreme Court has invalidated removal restrictions for single heads of agencies in Seila Law and Collins, it explicitly stated it was not overturning Humphrey's Executor and Wiener for multimember adjudicatory bodies. The majority emphasizes that lower courts must follow binding Supreme Court precedent unless the Supreme Court itself overturns it.
The majority concluded that the government failed to demonstrate a strong likelihood of success on the merits or irreparable injury, as required for a stay pending appeal. The court denied the government's request for a 7-day stay to seek Supreme Court relief.
Several judges dissented. Judge Henderson's brief dissent urged faster Supreme Court review. Judge Rao, joined by Judges Henderson, Katsas, and Walker, wrote a more extensive dissent arguing two grounds for granting a stay: (1) the President's constitutional removal authority, and (2) the unprecedented nature of the district court's remedial injunctions. Judge Rao focuses particularly on the remedial question, arguing that the injunctions exceed the court's equitable authority by effectively reappointing officers removed by the President and directing executive officials to treat them as still in office. She argues these remedies have no historical basis in Anglo-American law and risk a constitutional clash between the judiciary and executive branches.
Judge Rao notes that historically, officers challenging removals typically sought backpay rather than reinstatement. She also addresses and rejects the suggestion that mandamus could be an appropriate remedy, finding it extremely unlikely that such a writ could issue against the President or other executive officials in this context.
Judge Walker's brief dissent emphasizes that Humphrey's Executor has been narrowed by subsequent Supreme Court decisions like Seila Law, and that the disagreement on the court is about how to interpret this precedent, not whether to follow it.
Significant Cases Cited
Humphrey's Executor v. United States, 295 U.S. 602 (1935): Upheld removal restrictions for government officials on multimember adjudicatory boards.
Wiener v. United States, 357 U.S. 349 (1958): Unanimously upheld removal restrictions for officials on multimember adjudicatory boards.
Seila Law v. CFPB, 591 U.S. 197 (2020): Held unconstitutional removal restrictions for the single head of the Consumer Financial Protection Bureau.
Collins v. Yellen, 594 U.S. 220 (2021): Held unconstitutional removal restrictions for the single head of the Federal Housing Finance Agency.
Free Enterprise Fund v. Public Acct. Oversight Bd., 561 U.S. 477 (2010): Held unconstitutional "dual for-cause" removal restrictions, while declining to reexamine Humphrey's Executor.