Dive Brief:
- Gwynne Wilcox, the Democratic member of the National Labor Relations Board dismissed by President Donald Trump prior to the expiration of her term, may return to the agency following a Monday decision by an en banc panel of the U.S. Circuit Court of Appeals for the D.C. Circuit.
- The decision represents yet another reversal in a months-long dispute between Wilcox, her co-appellee Cathy Harris — a member of the Merit Systems Protection Board — and the Trump administration. A split three-judge panel of the D.C. Circuit blocked a district judge’s order permitting Wilcox and Harris to return to their posts on March 28, but the pair quickly filed petitions for en banc reconsideration and vacatur of that decision.
- A majority of the D.C. Circuit held that the petitioners’ motions be granted and said that U.S. Supreme Court precedent "unanimously upheld” removal restrictions for governmental officials like Wilcox and Harris. The majority also denied the Trump administration’s request to place a week-long stay on proceedings in the event that the petitioners’ motions were granted.
Dive Insight:
The D.C. Circuit’s decision reinstates, if only temporarily, a quorum at NLRB and MSPB while the case makes its way to the U.S. Supreme Court. Only one of the seven D.C. Circuit judges who joined the majority granting the petitions for en banc reconsideration and vacatur of the March 28 decision would have granted the Trump administration’s stay request.
The majority denied the stay motion because it held that the government had not shown that it would be likely to succeed on the merits, nor did it show that it faced irreparable injury via intrusion on presidential powers.
A four-member dissent included two of the judges who made up the split three-judge panel that blocked Wilcox’s reinstatement: Judges Karen LeCraft Henderson and Justin Walker. Henderson wrote that the court did the parties “no favors” by delaying Supreme Court review of the case, adding that only the high court “can decide the dispute and, in my opinion, the sooner, the better.”
The administration has argued — and the three-judge panel largely agreed — that Trump retains the ability to dismiss members of the NLRB and MSPB at will because the two agencies hold “substantial executive power,” placing them outside of the exceptions to the for-cause removal protections outlined by decades-old Supreme Court precedent.
However, the majority of the D.C. Circuit held that, while the Supreme Court had since held that removal protections for single heads of agencies exercising executive policymaking and enforcement powers were unconstitutional, the high court did not overturn its precedent on broader protections for multimember adjudicatory bodies.
“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,” the D.C. Circuit said.
Wilcox filed an appellee brief with the D.C. Circuit on Monday. The court is set to reconsider the district court’s decision on en banc, but it did not announce a schedule for rehearing at press time.
“We're pleased that the full D.C. Circuit has stepped in to allow Ms. Wilcox to rightfully return to her role and allow the National Labor Relations Board to continue its vital mission of protecting the rights of working people,” Deepak Gupta, founding principal at Gupta Wessler LLP and counsel for Wilcox, said in an email to HR Dive. “The Court's decision today reaffirms 90 years of Supreme Court precedent that protects the independence of agencies like the NLRB and the Federal Reserve Board."
