Dive Brief:
- A split U.S. Circuit Court of Appeals for the D.C. Circuit on Friday stayed a district court’s decision to reinstate Gwynne Wilcox as a member of the National Labor Relations Board, holding in a 2-1 decision that the Trump administration met its burden to show irreparable harm as a result of the reinstatement order.
- The court consolidated Wilcox’s case with that of Cathy Harris, a member of the Merit Systems Protection Board who, like Wilcox, had been dismissed by President Donald Trump prior to the expiration of her term. Judge Justin Walker said in a concurring opinion that the administration is harmed “each day that the President is deprived of the ability to control the executive branch” via removal of agency leaders and that public interest also supported a stay.
- Wilcox and Harris filed a motion for an administrative stay of the D.C. Circuit’s decision in anticipation of their filing a petition for en banc review by the full circuit, but the court issued a per curiam decision on Sunday denying that motion. Harris filed a petition for rehearing en banc and initial merits hearing en banc on Monday.
Dive Insight:
Wilcox’s return to the NLRB earlier this month restored a quorum at the agency and enabled it to resume issuing decisions on labor disputes. Now, just three weeks later, NLRB is once again without a quorum as Wilcox’s case seems poised to head to the U.S. Supreme Court.
At the center of the dispute between the Trump administration and dismissed Democratic federal agency leaders lies the U.S. Supreme Court’s unanimous 1935 decision in Humphrey’s Executor v. U.S. In that case, the court reaffirmed Congress’ power to create independent commissions whose members are protected from at-will removal by the president.
In February, the U.S. Department of Justice said it would ask the Supreme Court to overrule Humphrey’s Executor on the basis that legal protections for independent agency leaders unconstitutionally prevent the president from adequately supervising executive branch officers. Trump’s firings of Wilcox, Harris and other leaders serve as a test case for reversing the Supreme Court’s precedent.
The district court rejected Trump’s constitutional arguments, characterizing the president’s dismissal of Wilcox as “blatantly illegal.” But Trump found support for those same arguments from Judges Walker and Karen LeCraft Henderson of the D.C. Circuit.
Henderson wrote that while she viewed “the government’s likelihood of success on the merits as a slightly closer call” than did Walker, she nonetheless agreed that the Trump administration had plausibly shown that both the NLRB and MSPB hold “substantial executive power” that would fall outside the exceptions outlined in Humphrey’s Executor and later Supreme Court cases.
Judge Patricia Millett dissented, writing that the majority’s decision “will leave languishing hundreds of unresolved legal claims” as it leaves both NLRB and MSPB without a quorum.
“The two opinions voting to grant a stay rewrite controlling Supreme Court precedent and ignore binding rulings of this court, all in favor of putting this court in direct conflict with at least two other circuits,” Millett said. “The stay decision also marks the first time in history that a court of appeals, or the Supreme Court, has licensed the termination of members of multimember adjudicatory boards statutorily protected by the very type of removal restriction the Supreme Court has twice unanimously upheld.”