UPDATE 4/10/25: On April 9, Chief Justice John Roberts of the U.S. Supreme Court ordered an administrative stay of the D.C. Circuit order reinstating Ms. Wilcox and Ms. Harris. Responses from Ms. Wilcox and Ms. Harris to an emergency application for a stay filed by the Trump Administration are due Tuesday, April 15.
The full U.S. Court of Appeals for the District of Columbia Circuit, in a 7-4 decision, has put Gwynne Wilcox (D), the on-again, off-again Member of the National Labor Relations Board, back on the Board.
Member Wilcox, a Biden appointee, was removed from the Board by President Trump shortly after he took office. She sued, and a federal district court judge blocked the termination, effectively reinstating Ms. Wilcox to the Board. Then, as we reported last week, a three-judge panel of the D.C. Circuit ruled 2-1 in favor of the Trump Administration. That resulted in Ms. Wilcox’s removal.
Ms. Wilcox asked to have her case heard by all of the judges on the D.C. Circuit, and yesterday, the full D.C. Circuit vacated the panel decision, putting Ms. Wilcox back on the Board again. The decision also effectively reinstated Member Cathy Harris to her position on the Merit Systems Protection Board. A hearing on the merits of Ms. Wilcox’s and Ms. Harris’s cases is scheduled for May 16.
Monday’s decision was along party lines, with the seven judges appointed by Democrats joining in the majority decision, and the four judges appointed by Republicans in the minority. Two of the Republican appointees were on the panel that had ordered a stay of the District Court decision.
As a key basis for the decision, the majority noted, “The Supreme Court has repeatedly told the courts of appeals to follow extant Supreme Court precedent unless and until that Court itself changes it or overturns it.” Citing that directive, the majority said that it was compelled to follow the Supreme Court’s 1935 decision in Humphrey’s Executor v. United States, and its 1958 decision in Wiener v. United States. In Humphrey’s Executor and Wiener, the Supreme Court had held that Congress could enact removal restrictions for government officials on multimember adjudicatory boards without violating the President’s Article II executive powers.
The Trump Administration had argued that Humphrey’s Executor has been narrowed by more recent Supreme Court decisions involving single heads of agencies and that those recent decisions should control. The majority rejected that argument, but the dissenting judges took the view that recent decisions of the Supreme Court had narrowed Humphrey’s Executor and that it should not control the NLRB and MSPB cases even if it has not been expressly overruled.
The majority did not grant a request by Ms. Wilcox and Ms. Harris for an initial hearing by the full court on the merits of their termination cases. That means their cases will be heard by a three-judge panel.
The Trump Administration had also asked the D.C. Circuit to stay for seven days its decision denying the emergency stay so that the Administration could seek review by the U.S. Supreme Court. That request was denied, 6-5.
The Administration may nonetheless seek emergency review by the Supreme Court, where it has better odds. The Supreme Court has a 6-3 Republican split.
The back and forth continues. All actions by the Board with Member Wilcox again participating post-termination are at risk of ultimately being judged void. Meanwhile, there are no prospective Trump nominations to fill the two empty seats on the five-member Board, which would eliminate the 2-1 Democratic majority that exists with Ms. Wilcox back.
In any event, for now, the return of Member Wilcox temporarily gives the Board at least the appearance of a quorum for decision-making.