Court of Appeals for the D.C. Circuit Stays Reinstatement of NLRB Member Gwynne Wilcox
Court of Appeals for the D.C. Circuit Stays Reinstatement of NLRB Member Gwynne Wilcox
Bayan Biazar, Associate
The Rocky Mountain Employer previously discussed the District Court for the District of Columbia’s decision in Wilcox v. Trump, in which Judge Beryl Howell ruled that President Trump’s termination of National Labor Relations Board (NLRB) member Gwynne Wilcox was illegal, and ordered that Ms. Wilcox be reinstated.[1] However, on March 28, 2025, the U.S. Court of Appeals for the District of Columbia Circuit granted a stay of Judge Howell’s order, while opining that President Donald Trump will likely succeed on his claim that he has the constitutional authority to remove appointees to federal agency boards, like Member Wilcox.
Member Wilcox’s Initial Victory was Short-Lived
President Trump removed NLRB Member Gwynne Wilcox as one of his first moves as acting President. Members of the NLRB Board are appointed by the President and serve five-year terms. No previous Member has ever been removed prior to the termination of their five-year term. Moreover, the Supreme Court has previously stated that the power to remove officials from independent regulatory agencies like the NLRB was a power vested in Congress.[2]
Judge Howell ruled that President Trump’s termination and removal of Member Wilcox from the NLRB violated the NLRB’s express statutory requirements for the removal of Board members, and rejected the President’s arguments that the National Labor Relations Act’s limitations on the President’s authority to remove Board members was an unconstitutional infringement on the Executive branch’s power. As such, Judge Howell ordered Member Wilcox’s reinstatement. President Trump immediately appealed Judge Howell’s decision and, as relevant here, sought an emergency stay of Judge Howell’s decision and Member Wilcox’s reinstatement.
The Court of Appeals’ Split Decision and Grant of the President’s Requested Stay
On March 28, 2025, a three-judge panel, consisting of two Republican-appointed judges, Justin Walker and Karen Henderson, and one Democratic-appointed Judge, Patricia Millet, issued a split-decision which granted the President’s requested stay and strongly implied that the Court of Appeals would agree with the President on the merits of his constitutional arguments. Judge Walker in particular found that the President was likely to succeed on the merits based on the historical role of the Executive branch and his opinion that the Supreme Court’s opinion in Humphrey’s Executor was narrow, that Congressional limitations on the President’s power to appoint or remove members of federal agencies under Humphrey’s Executor were limited to partisan-balanced, multimember executive agencies that do not wield substantial executive power, and that the NLRB did not fit into that exception because of its exercise of substantial executive power. Judge Henderson was less strident in her opinion that President Trump would succeed on the merits, but nonetheless found that the irreparable harm that would be caused to the Executive branch absent a stay warranted the imposition of the same.
In a lengthy dissent, Judge Millet disagreed with Judges Walker’s and Henderson’s decision as deviating from binding and applicable Supreme Court precedent approving of Congress’s ability to limit the President’s ability to remove members of independent agencies like the NLRB, and that the other Judges’ attempts to cast the NLRB as an agency with substantial executive power were simply wrong based on the Board’s enumerated powers (and lack thereof). Judge Millet likewise criticized the scope of the court’s decision, stating that they were rewriting controlling Supreme Court precedent which would end up “disabling agencies that Congress created.” However, this dispute is far from over, as Member Wilcox has already requested an en banc review of the Court of Appeals’ decision by the full D.C. Circuit panel as of April 1, 2025.
Key Takeaways
Member Wilcox’s case appears primed for an eventual Supreme Court decision. Should the Supreme Court side with President Trump, then the Executive branch’s power to remove members of ostensibly-independent federal agencies will be virtually unchecked, which could lead to further partisanship (either Republican or Democratic) among agencies like the NLRB, given that the President could simply remove, without cause, those members who disagree with the President’s politics. As always, Campbell Litigation will continue to stay abreast of the rapidly changing developments in federal labor law and is available to assist employers with the same.
[1]See https://www.rockymountainemployersblog.com/blog/2025/3/13/national-labor-relations-board-back-to-quorum-strength-as-member-wilcox-is-reinstated.
[2] See Humphrey’s Executor v. United States, 295 U.S. 602 (1935)