On March 6, 2025, U.S. District Court Judge Beryl Howell held that Gwynne Wilcox, a former member of the National Labor Relations Board (“NLRB” or the “Board”) was “illegally” fired from her job.[1] The court ordered the Board’s current chair to restore her access to the Board and let her serve out the remainder of her five-year term. The Trump administration promptly appealed the decision and is seeking an immediate stay from a federal appeals court.[2] However, in the meantime, Wilcox’s return will give the Board three active members. Thus, for now, it appears that the Board again has a statutory quorum under the National Labor Relations Act (“NLRA” or the “Act”) and can resume operating as normal.
What Is in Dispute?
Under the NLRA, members of the Board serve fixed five-year terms after being duly nominated and Senate approved. Under the NLRA, they can be removed before their term’s end only for “malfeasance” or “neglect of duty.” They also must be given “notice and a hearing.” None of those terms are defined in the NLRA. However, they have generally been understood to require a president to show “cause” before firing a member. “For cause” protection has become increasingly controversial and some scholars have argued that removal protections interfere with the president’s ability to manage the executive branch and that the president should be able to fire officers at will.
On January 28, 2025, President Trump sent an email to Member Wilcox, who began her term in September 2023, stating that he had lost confidence in Wilcox’s ability to lead the Board and that there were no valid constitutional limits on the President’s ability to remove a Board member with or without cause.[3] After Ms. Wilcox was fired, only two active members remained on the Board. Because the Board lacked the three-member quorum, it was effectively frozen and not operating during Ms. Wilcox’s absence.[4]
Days after her firing, Ms. Wilcox filed her federal lawsuit against President Trump and Marvin Kaplan, in his capacity as the recently appointed Chairman of the Board, a position previously held by Ms. Wilcox since December 2024.[5] Ms. Wilcox’s complaint sought a ruling that her termination was unlawful and void, and injunctive relief against the Board Chairman, Mr. Kaplan, so that she may resume her role as a Board member.
The Court rendered a prompt decision because there were no disputed facts and only a pure legal question that needed to be answered.[6] The facts all parties agreed were true were that after taking office, President Trump designated Mr. Kaplan as Chairman of the Board, replacing Ms. Wilcox. Shortly thereafter, the Deputy Director of the White House Presidential Personnel Office sent Ms. Wilcox an email at 11:00 p.m. terminating her from her Board position, without “notice and hearing” and without citation to any statutory basis for removal (e.g., “neglect of duty” or “malfeasance”).[7] The email also stated the statutory limitations on removal power were “unconstitutional” because they are “inconsistent with the vesting of the executive Power in the President. The current Board Chair, Mr. Kaplan, instructed his direct report to begin Ms. Wilcox’s termination, cut-off her access to her accounts, and told her to clean out her office. The President’s decision to terminate Ms. Wilcox means the Board is unable to function because only 2 members remain and 3 members are required to form a quorum and exercise the Board’s powers.
The Constitution comes into play because President Trump conceded that the email termination violated the statutory requirements for removing a Board Member and instead contends that the President’s “removal power is fundamentally ‘unrestricted.’”[8] The Constitution enunciates both the structure and vested powers for each branch of government: Article I vests all legislative powers in Congress (the Senate and House of Representative); Article II vests the executive power in the President; and Article III vests the judicial power in one Supreme Court and other inferior Courts established by Congress. President Trump’s refusal to obey a congressional statute pits the executive branch (Article II) against the legislative branch (Article I). The role of the courts (Article III) is to interpret the Constitution, past practice, and judicial precedent to resolve the conflict. The President’s role, as wielder of the executive power, is “to be a conscientious custodian of the law, albeit an energetic one, to take care of effectuating his enumerated duties, including the laws enacted by the Congress and as interpreted by the Judiciary.”[9]
What Did the District Court Hold?
Because the Constitution does not contain any removal provisions for multi-member boards or commissions, the District Court’s analysis was distilled down to one 1935 U.S. Supreme Court case, Humphrey’s Executor v. U.S., 295 U.S. 602. Humphrey’s Executor addressed removal of commissioners of the Federal Trade Commission (the “FTC”) and in doing so discussed and upheld past practice since 1887 that Congress could establish independent, multimember commissions whose members are appointed by the President but can be removed only for cause.[10] Two months after the Humphrey’s Executor decision, Congress enacted the National Labor Relations Act and created a two part leadership structure for the agency similar to the FTC: a five member Board was designed to adjudicate cases impartially by staggering the members’ five-year terms and a General Counsel who determines which cases to prosecute, provides guidance on legal interpretation, and has a four-year term.[11]
To avoid the application of Humphrey’s Executor as binding precedent, President Trump contends: the FTC in 1935 did not exercise “executive power” and asserts that the Board does; the NLRB removal grounds are stricter because unlike the FTC they include efficiency; and Humphrey’s Executor was wrongly decided or repudiated (relying on preceding cases and interpretation of later opinions in different removal contexts).[12]
However, the district court agreed with Board Member Wilcox. The district court held that Humphrey’s Executor is still good law and applies to the NLRB. It still allows Congress to insulate the heads of multi-member expert agencies. The district court applied that description to the Board and held that, like the FTC in Humphrey’s Executor, the Board performs quasi-legislative and quasi-judicial functions. It investigates unfair labor practices and adjudicates them through an administrative process. That process ends with a decision by a three-member panel, which acts like a quasi-court. This structure, the court reasoned, was indistinguishable from the FTC’s structure. Thus, the district court concluded, Humphrey’s Executor still controlled, and Ms. Wilcox had been validly insulated from removal, meaning her termination was “illegal.”
On the other hand, the district court did not order the President to “reinstate” her. Instead, the court ordered the Board’s current chair, Kaplan, not to prevent her from doing her job – i.e., Kaplan cannot deny her access to the building, block her from accessing the Board’s systems, or otherwise interfere with her ability to serve as a Board member. Sidestepping a debate around whether any court has authority over presidential appointments, the court did not order Ms. Wilcox’s appointment to the Board; the district court’s order merely ensures that Board Member Wilcox serve out her original term.
In response to the district court’s order, on March 6, 2025, President Trump immediately filed a notice of appeal and sought to stay the district court’s order until the appeal is resolved. The district court rejected the stay request.
President Trump’s stay request is now in the hands of the U.S. Court of Appeals for the District of Columbia. A motions panel of this same court recently granted the government’s stay request, to prevent terminated Special Counsel Hampton Dellinger from resuming his role in the Office of Special Counsel (an independent agency under the Whistleblower Protection Act) while the appeal proceeds. After the stay request was granted, Mr. Dellinger dropped his appeal.
What Is Next?
For now, the Board appears to have a quorum since Ms. Wilcox has resumed her Board duties, and the Board has begun to issue decisions again.
However, that situation may not last. The appeal and the request for a stay will go to a federal appeals court in Washington and then likely to the U.S. Supreme Court. Either of those courts could reverse the district court’s decision and drop the Board back to two members.
We will continue to monitor future developments, and cover noteworthy updates on our blog. Employers with questions about how the decision affects them should consult experienced labor counsel.
FOOTNOTES
[1] Wilcox v. Trump, Case 1:25-cv-00334-BAH (Mar. 6, 2025) (dkt #34).
[2] See Emergency Motion for Stay Pending Appeal, Wilcox v. Trump, No. 25-5057 (D.C. Cir. filed Mar. 10, 2025).
[3] Opinion, p. 8.
[4] See New Process Steel, L.P. v. NLRB, 560 U.S. 674 (2010).
[5] Opinion, pp. 8-9.
[6] Opinion, p. 9.
[7] Opinion, p. 8.
[8] Opinion, pp. 5, 8, 15; 29 U.S.C. § 153(a).
[9] Opinion, p. 4 (“U.S. Const. art. II, § 3 (“[H]e shall take Care that the Laws be faithfully executed . . . .”)).
[10] Opinion, pp. 10-12.
[11] Opinion, pp. 7-8, 13-14; see also 29 U.S.C. §§ 151-169.
[12] Opinion, pp. 15-28.
