Labor & Employment Law Daily Wrap Up, LITIGATION NEWS, TRENDS—Former NLRB member seeks en banc review by D.C. Circuit, (Jan 8, 2026)

By Brandi O. Brown, J.D.

Following a divided panel decision favoring the Trump administration in the ongoing dispute over Gwynne Wilcox’s removal, the former NLRB member has asked for reconsideration by the full appeals court.

A month ago, a divided panel of the D.C. Circuit held that Congress could not prohibit President Trump from removing members of the NLRB and MSPB without cause, reversing district court rulings upholding the constitutionality of the statutory removal protections and reinstating former NLRB member Gwynne Wilcox and MSPB member Cathy Harris. The U.S. Supreme Court had stayed those reinstatements pending the appeal process.

The D.C. Circuit held that the agencies “wield substantial powers that are both executive in nature and different from the powers that Humphrey’s Executor deemed to be merely quasi-legislative or quasi-judicial,” and under Seila Law LLC v. Consumer Financial Protection Bureau, “Congress may not restrict the President’s ability to remove principal officers who wield substantial executive power.” Dissenting, Judge Pan opined that “[m]y colleagues’ substantial acceptance of the government’s maximalist theory of executive power brings us closer to autocracy, harms our nation, and violates the separation of powers.”

Before the December panel decision. Shortly after taking office, Trump removed Wilcox from the NLRB and Harris from the MSPB, despite explicit legislative restrictions on the President’s power to remove them from their respective positions prior to the expiration of their terms. Wilcox was confirmed by the Senate to a second five-year-term in September 2023 and Harris’s seven-year term was scheduled to run until 2028. The Trump administration did not claim that either board member had engaged in any conduct that would support for-cause removal under the relevant statutory restrictions and instead argued that those restrictions were unconstitutional.

Wilcox and Harris filed separate lawsuits to challenge their removals, and both were reinstated by the D.C. federal court. Judge Rudolph Contreras found that Trump lacked the power to remove Harris from her office at the MSPB at will, and Judge Beryl Howell came to the same conclusion with respect to Wilcox, concluding that the statutory removal protections are constitutional under Humphrey’s Executor. The government appealed and sought interim stays pending appeal. A panel of the D.C. Circuit granted the stays, but the full court vacated that decision.

Latest petition. Now, Wilcox is seeking a second en banc review, asking the full court to weigh in on the decision of the “sharply divided panel” that upheld her removal “in violation of a for-cause removal provision that had stood unchallenged for 90 years.” She argued that the decision “directly conflicts with” U.S. Supreme Court precedent in Humphrey’s Executor v. United States and Wiener v. United States. She argues that the court should “hold that the NLRB, as an adjudicatory tribunal akin to an Article I court, falls squarely within the established exception for adjudicatory agencies.” She adds, “Like the War Claims Commission in Wiener, the NLRB’s five-member Board is an independent ‘adjudicatory body’ performing ‘intrinsic judicial’ functions.”

The case is No. 25-5057.

News: LitigationNewsTrends PublicEmployees Discharge LaborNews AgencyNews WhiteHouseNews