Chief Justice Roberts Halts En Banc Panel of the Court of Appeals for the D.C. Circuit’s Reinstatement of NLRB Member Gwynne Wilcox
Chief Justice Roberts Halts En Banc Panel of the Court of Appeals for the D.C. Circuit’s Reinstatement of NLRB Member Gwynne Wilcox
Brett Whitley, Associate
The Rocky Mountain Employer has closely followed President Trump’s ousting of National Labor Relations Board (“NLRB” or the “Board”) member Gwynne Wilcox and the ensuing developments in her lawsuit against the President. Last week, the Rocky Mountain Employer reported that Member Wilcox successfully petitioned the full panel of D.C. Circuit judges (the “Panel”) to reverse, en banc, the U.S. Court of Appeals for the District of Columbia Circuit’s (the “Court of Appeals”) stay of U.S. District Court Judge Beryl Howell’s order reinstating Member Wilcox to her Board seat.[1] However, Member Wilcox’s victory was once again short-lived, as Chief Justice Roberts of the Supreme Court of the United States (“SCOTUS”) reversed the Panel’s decision on April 9, 2025, and ruled that Member Wilcox’s termination is to stay in place pending a further order from himself or SCOTUS.
Trump v. Wilcox – Chief Justice Roberts’ Order
As previously reported by the Rocky Mountain Employer, President Trump opposed Member Wilcox’s petition to the Court of Appeals for an en banc hearing to reconsider its stay and to vacate the same. After the Panel held against him, President Trump made an emergency application to Chief Justice Roberts, requesting that (1) SCOTUS take the underlying case that originally resulted in Judge Howell’s order reinstating Member Wilcox to her Board seat away from the Court of Appeals and instead, immediately decide it on its own and (2) the Panel’s decision to uphold Judge Howell’s order reinstating Member Wilcox to her Board seat be stayed until President Trump’s appeal of Judge Howell’s order is complete. In response to President Trump’s emergency application, Chief Justice Roberts, in a one paragraph-long order (the “Order”), stayed Judge Howell’s order “pending further order [from Chief Justice Roberts] or of [SCOTUS,]” thereby upholding the Court of Appeals’ ruling that Member Wilcox’s termination is to be kept in place pending a full appeal of the underlying case until Chief Justice Roberts or SCOTUS say otherwise.
In the Order, Chief Justice Roberts also ordered that Member Wilcox respond to President Trump’s emergency application by April 15. In her response to the emergency application (the “Response”), Member Wilcox argued that SCOTUS should deny a stay of Judge Howell’s order because President Trump cannot show that any of the required elements for such a stay[2] are present. Member Wilcox also argued in her Response that, in addition to rejecting his request to stay Judge Howell’s order, SCOTUS should also deny President Trump’s request for certiorari (i.e., a request for SCOTUS to take up the Trump v. Wilcox case before a full appeal on the merits of that case takes place), explaining that certiorari before judgment is only appropriate if “the case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination of [SCOTUS]” and that demanding standard is not met here.[3] Last, Member Wilcox argued in her Response that SCOTUS should reject President Trump’s suggestion to schedule oral argument and briefing prior thereto of Trump v. Wilcox in May of 2025, as the same would prevent a full briefing and argument of this complex case due to being on such a tight schedule.
Key Takeaways
In light Member Wilcox’s Response to the Order, two issues are now teed up for SCOTUS or Chief Justice Roberts. First, SCOTUS or Chief Justice Roberts can now decide whether SCOTUS will cut the appellate process in Trump v. Wilcox short and immediately take up the case and decide it within the next few months or whether SCOTUS will allow the appellate process in the case to proceed. Second, SCOTUS or Chief Justice Roberts will also be deciding whether to stay Judge Howell’s order reinstating Member Wilcox during the appellate process (the length of which is dependent on SCOTUS or Chief Justice Roberts’ decision on the first issue) of Trump v. Wilcox or whether Judge Howell’s order is effective until the appellate process is complete. If SCOTUS or Chief Justice Roberts agrees with President Trump and decides that Judge Howell’s order is stayed pending a final judgment on Trump v. Wilcox, then the NLRB will continue to lack the quorum needed to issue its rules, decide appeals of Administrative Law Judge labor-related decisions, and govern issues surrounding contested Board elections. Campbell Litigation will continue to monitor the appellate process of Trump v. Wilcox and the effect of same on federal labor law in the coming weeks and months.
[1] See https://www.rockymountainemployersblog.com/blog/2025/4/10/en-banc-panel-of-the-court-of-appeals-for-the-dc-circuit-reinstates-nlrb-member-gwynne-wilcox-and-reestablishes-quorum-for-now.
[2] Ohio v. EPA, 603 U.S. 279, 291 (2024) (“(1) whether the applicant is likely to succeed on the merits, (2) whether it will suffer irreparable injury without a stay, (3) whether the stay will substantially injure the other parties interested in the proceedings, and (4) where the public interest lies.”).
[3] See Response of Gwynne A. Wilcox in Opposition to the Application for Stay at p. 29. https://www.supremecourt.gov/DocketPDF/24/24A966/355652/20250415160232624_Wilcox.Stay%20Response.pdf.