The termination of NLRB Member Gwynne Wilcox is back in place, at least for the time being.
Earlier this month, Judge Beryl A. Howell issued an injunction that blocked President Trump and Marvin Kaplan, Chairman of the National Labor Relations Board, from terminating Ms. Wilcox, a Democrat who was appointed by President Biden to a five-year term ending in 2028.
The Trump Administration promptly filed an emergency request for a stay of Judge Howell’s order and appealed to the U.S. Court of Appeals for the District of Columbia Circuit.
On Friday, a three-judge panel of the D.C. Circuit granted the stay pending appeal. The 2-1 panel decision was the product of concurring opinions and split along party lines. The court reached a similar result in a case involving Cathy Harris, a Member of the Merit Systems Protection Board, and another Biden appointee, which was consolidated with the Wilcox case. The MSPB handles certain disputes involving employees of the federal government.
The stay order in the consolidated cases at least temporarily removes an official needed for a quorum at each agency.
The President’s right to fire
As we previously reported, these cases – as well as other cases that involve President Trump’s removal of officials of the Federal Labor Relations Authority and the Federal Trade Commission – are likely to be headed to the U.S. Supreme Court. They involve important constitutional questions regarding the separation of powers. More specifically, they involve the tension between, on the one hand, the executive power vested in the President in Article II of the U.S. Constitution, and, on the other hand, the legislative power of Congress to encroach on Article II executive power by creating and funding so-called “independent agencies” with heads or high-level officials who are not subject to termination at will by the President.
These cases may give the Court the opportunity to carve away more of the Supreme Court’s 1935 decision in Humphrey’s Executor, which upheld a provision of the Federal Trade Commission Act that protected an FTC Commissioner from removal by then-President Franklin D. Roosevelt. The Supreme Court found that the FTC was serving a quasi-judicial or quasi-legislative role, and was not exercising executive power.
However, since 2010, several Supreme Court decisions have arguably limited the ability of Congress to encroach on Executive Branch powers under the Constitution. (Humphrey’s Executor and these more recent decisions are linked in our March 18 bulletin, linked above.)
Party-line split
In the Wilcox case, the concurring judges on the D.C. Circuit panel, Judges Karen LeCraft Henderson (a George H.W. Bush appointee) and Justin R. Walker (a Trump appointee), relied on these decisions as a basis for the stay of the lower court’s order pending appeal. Both Judge Henderson and Judge Walker found that the NLRB and the MSPB exercise executive powers, which take them out of the Humphrey’s Executor exception for so-called independent quasi-judicial and quasi-legislative bodies. On this basis, they both found that the Trump Administration was likely to prevail on the merits of the appeal.
Judge Walker openly agreed with the Trump Administration arguments that the recent Supreme Court decisions gave the President authority to terminate both Ms. Wilcox and Ms. Harris, and that the statutory removal protections for their offices are invalid. Judge Henderson agreed with Judge Walker’s opinion on the contours of presidential power, but indicated that she “viewed the government’s likelihood of success on the merits as a slightly closer call.”
In dissent, Judge Patricia A. Millett (an Obama appointee) opined that she could not join in “a decision that uses a hurried and preliminary first-look ruling by this court to announce a revolution in the law that the Supreme Court has expressly avoided….” She also argued that the panel’s stay order was disrupting the status quo pending appeal, rather than preserving it, which is ordinarily the purpose of a stay. In this regard, Judge Millett arguably overlooks the fact that the “status quo” before court involvement was removal of the officers and that the lower court was, in effect, requiring an agency to allow an officer to serve.
Stay versus stay
Shortly after the D.C. Circuit panel’s decision issued, Ms. Wilcox and Ms. Harris filed emergency motions to stay the D.C. Circuit panel order pending rehearing en banc (rehearing by all 11 active D.C. Circuit judges) of the case on its merits. Their arguments largely tracked Judge Millett’s dissent. However, Ms. Wilcox and Ms. Harris did not actually request rehearing at that time.
On March 30, the same D.C. Circuit panel, again by a 2-1 decision, denied the emergency motions to stay of Ms. Wilcox and Ms. Harris.
But yesterday, Ms. Harris requested rehearing en banc on the panel’s grant of the stay order and on the merits of the case. Ms. Wilcox did the same today.
If the requests for en banc rehearing are granted, Ms. Wilcox and Ms. Harris are likely to have the majority on their side: seven of the active judges are Democrats, and only four are Republicans.
Arguments before the D.C. Circuit panel in the consolidated cases are currently scheduled for May 16. However, that may change now that Ms. Wilcox and Ms. Harris have requested rehearing en banc.
Practical effect of the stay
As it currently stands, the terminations of Ms. Wilcox and Ms. Harris are still in effect, at least temporarily. The motions for stay filed by Ms. Wilcox and Ms. Harris – which would have at least temporarily resulted in their reinstatement – have been denied.
From a practical point of view, the loss of a quorum at the NLRB gives employers and employees at least a brief respite from the pro-organized-labor tilt that had been put in place by President Biden. Meanwhile, the Regional Office level is proceeding as usual to the extent that Board action from Washington, D.C., is not required. But if the Trump Administration ultimately prevails, the impact on the future of the NLRB and other so-called independent agencies can hardly be overstated.