Labor & Employment Law Daily Wrap Up, LITIGATION NEWS, TRENDS—SCOTUS wades into MSPB, NLRB board member terminations dispute, halts their reinstatements for now, (Apr 10, 2025)

By Brandi O. Brown, J.D.

They were doing their jobs, then they were out, then they were in, then they were out, then they were in, and they are out again, for now.

Yesterday, Chief Justice John Roberts issued an order, the effect of which is that Gwynne Wilcox, formerly a member of the National Labor Relations Board, and Cathy Harris, formerly a member of the Merit Systems Protection Board, who had just won their reinstatement before the D.C. Circuit, now are out of their offices again.

Wilcox’s ouster and lawsuit. Let’s back up. On January 27, 2025, President Trump fired from the NLRB former Chair Gwynne Wilcox. Named to the Board in 2021, Wilcox was the first Black woman to serve on the Board since its inception. In September 2023, she was sworn in for a term that was not set to end until August 27, 2028. She filed suit in a federal district court in D.C. in early February, alleging that her removal was unlawful. She also moved for expedited summary judgment and the government filed a cross-motion. On March 6, 2025, Judge Beryl Howell granted her motion and denied the cross-motion, issuing a declaratory judgment that her termination was unlawful. The defendants appealed the next day. In the meantime, Judge Howell denied a motion to stay. On March 10, the government filed an emergency motion with the D.C. Circuit to stay the district court’s judgment pending appeal.

Harris’s ouster and lawsuit. A similar trajectory applies for Cathy Harris, who was informed of her termination on February 10, 2025, and filed a lawsuit the next day in federal district court in the District of Columbia, likewise alleging that her termination was unlawful. Harris was confirmed as a member of the MSPB in 2022 and became Chairman in 2024. Her term was not set to expire until 2028. Her motion for summary judgment was granted by Judge Rudolph Contreras on March 4, 2025, who granted declaratory and injunctive relief restoring her to her position as a Board member. The government also sought relief from the D.C. Circuit in this case.

En banc appeals court orders reinstatement. Before the appeals court, the cases were consolidated and, initially, the government’s motion for an emergency stay was granted in a two to one decision by a three-member panel on March 31, 2025. However, on April 7, 2025, the en banc D.C. Circuit reinstated the district court’s March 4 and March 6, 2025, orders. Therefore, Wilcox was once again a member of the NLRB and Harris was once again a member of the MSPB.

SCOTUS becomes involved. The Trump administration swiftly sought relief from the U.S. Supreme Court, applying on April 9, 2025, to stay the judgments of the district court and for an administrative stay. In the order issued by Chief Justice John Roberts on Wednesday, the March 4 and March 6 district court orders, it states, “are hereby stayed pending further order of the undersigned or of the Court.” It also orders that a response to the application be filed on or before Tuesday, April 15th, 2025, by 5 p.m. (EDT).

FAQs amended, again. And, as a footnote, the “Frequently Asked Questions about the Lack of Quorum Period and Restoration of the Full Board” has, once again, been amended on the MSPB’s website to once again reflect that the Board no longer has a quorum and only has a single serving Board member.

The emergency docket is No. 24A966; the district court dockets are No. 25-cv-412 and 25 cv-334; and the D.C. Circuit dockets are Nos. 25-5037 and 25-5057.

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