District Court Rules NLRB Member Gwynne Wilcox Was Illegally Fired
Trump will appeal to the D.C. Circuit and then the Supreme Court.
On January 28, President Trump fired NLRB Board member Gwynne Wilcox (see my prior coverage of this: I, II, III). This termination violated Section 3(a) of the National Labor Relations Act (NLRA), which states that Board members may not be fired except “upon notice and hearing, for neglect of duty or malfeasance.” In the letter accompanying the termination, the Trump administration made it clear that they believe the removal protections of Section 3(a) are unconstitutional and that they intended to use the termination to challenge the protections in the courts.
Wilcox sued the Trump administration over the termination. Today, the district court presiding over that lawsuit ruled in Wilcox’s favor and ordered that Wilcox continue to serve as an NLRB member. See the order and opinion below.
This was the expected outcome of the district court proceeding. Outside of the Fifth Circuit, the theory that removal protections are unconstitutional under current Supreme Court precedent (Humphrey’s Executor) has no purchase.
The Trump administration will appeal this decision to the D.C. Circuit, which will almost certainly affirm the district court decision. At that point, the Trump administration will appeal the D.C. Circuit decision to the Supreme Court, giving it a chance to overrule or clarify existing precedent in a way that invalidates the removal protections in Section 3(a) of the NLRA and also, by extension, the removal protections of many other appointed officials in independent agencies.