On April 7, 2025, the U.S. Court of Appeals for the District of Columbia held that President Trump's termination of National Labor Relations Board (“NLRB” or the “Board”) Member Gwynne Wilcox was unlawful. The decision marks the latest round in litigation tug-of-war, reversing a decision reached by a three-judge panel for the D.C. Circuit, and returning to a decision reached by U.S. District Judge Beryl A. Howell on March 6, 2025. For an in-depth summary of the facts and the constitutional issues at stake, please refer to our initial reports on the district court's ruling here, and subsequent reversal by the three-judge panel here.
The matter arises from President Trump's decision to terminate Wilcox without notice or cause, violating the requirements set in the National Labor Relations Act (“NLRA” or the “Act”). In doing so, President Trump claimed that his executive power exceeded the limits enacted by Congress in the NLRA, and challenged 90-year-old Supreme Court precedent Humphrey's Executor v. U.S., 295 U.S. 602 (1935). Humphrey's Executor stands for the principle that Congress may enact limits on the President's authority to remove officers of certain types of independent agencies. The district court's decision cited Humphrey's Executor and found that Wilcox was illegally fired. Trump appealed this decision, and on March 28, 2025, two Republican-appointed judges on the three-judge panel paused the district court's ruling and found that restrictions on the President's power to remove officers of the executive branch are likely unconstitutional.
D.C. Circuit Issues Ruling Reinstating Wilcox
As a result of the three-judge panel's decision, Wilcox filed a petition for rehearing en banc seeking review with the full D.C. Circuit. In a 7-4 vote, the full D.C. Circuit returned a favorable decision for Wilcox, finding that her termination was unlawful. The majority's opinion criticized the previous decision by the three-judge panel to effectively overturn Humphrey's Executor without a decision already reached by the Supreme Court on the issue: “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.” Judge Justin Walker, who authored the March 28, 2025 concurring opinion upholding President Trump's termination of Wilcox as part of the three-judge panel, dissented and objected to the majority's characterization of the opinion: “Each of us recognizes that a lower court cannot overrule Humphrey's Executor. We simply disagree about how broadly to read it.”
Looking Ahead
For now, Board Member Wilcox finds herself reinstated to the NLRB, effectively placing the Board with a statutory quorum of three members to operate under the NLRA. However, this issue seems ripe for Supreme Court review, as indicated by Judge Karen Henderson in her opinion stating “Only the Supreme Court can decide the dispute and, in my opinion, the sooner, the better.”
We will continue to monitor future developments on our blog. Employers with questions about how the decision affects them should consult experienced labor counsel.
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