Labor & Employment Law Daily Wrap Up, PUBLIC EMPLOYEES—D.C. Cir.: Administration granted emergency stay against reinstatement of fired members of NLRB, MSPB, (Mar 31, 2025)

By Jason Albright, J.D.

The stay, observed dissenting Judge Millett, strips the NLRB and MSPB of their restored quora, “disabling agencies that Congress created and funded from acting for as long as the President wants them out of commission.”

A divided three-member panel of the D.C. Circuit Friday granted an emergency stay against two federal district court injunctions that had ordered the immediate reinstatement of NLRB member Gwynne Wilcox and MSPB member Cathy Harris, both fired by President Trump without cause and in violation of the respective federal agencies’ organic statutes. Judges Walker and Henderson wrote separate concurrences, the former describing the statutory removal protections of the NLRA—enacted in 1935—and the CSRA—enacted in 1978 in the wake of the Watergate scandal—as “likely… unconstitutional.” Judge Millett, dissenting, noted that the decision “marks the first time in history that a court of appeals, or the Supreme Court, has licensed the termination of members of multimember adjudicatory boards statutorily protected by the very type of removal restriction the Supreme Court has twice unanimously upheld.” Wilcox petitioned for rehearing en banc the same day (Harris v. Bessent, Nos. 25-5037 and 25-5057 (D.C. Cir. Mar. 28, 2025)).

Reinstatements below. Following their dismissals without cause by the President, both Harris and Wilcox were reinstated by the U.S. District Court for the District of Columbia in early March. 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 and the 90-year-old statutory structure of the NLRA, notably observing that “[a]n American President is not a king….”

Motions for emergency stay. The administration filed motions with the D.C. Circuit in both cases seeking an emergency stay, and the appeals court granted its request in a per curiam order.

Judge Walker’s concurrence. Judge Walker, appointed to the D.C. Circuit during Trump’s first term, argued that the Constitution “lodged full responsibility for the executive power in a President of the United States, who is elected by and accountable to the people.” PHH Corp. v. CFPB, 881 F.3d 75, 164 (D.C. Cir. 2018) (en banc) (Kavanaugh, J., dissenting).

Under U.S. Supreme Court precedent, Walker urged, the Trump administration is likely to succeed in showing that the statutory removal protections for NLRB “commissioners” and MSPB members are unconstitutional. And the administration also showed that it will suffer irreparable harm “each day the President is deprived of the ability to control the executive branch.”

Qualification of Humphrey’s Executor. According to Walker, the Supreme Court’s removal power jurisprudence has not “always been consistent.” Though the Court in Myers v. United States, 272 U.S. 52 (1926) “reaffirmed the President’s unilateral removal power,” Humphrey’s Executor v. United States, 295 U.S. 602 (1935), he argued, “created an exception to the rule. It left future courts to decide when that exception might apply.”

And subsequently, argued Walker, “[t]he Court has consistently declined to extend Humphrey’s beyond its facts and has instead reaffirmed Myers as the default rule that occupies the ‘field of doubt’ for any agency that wields the substantial executive power that Humphrey’s understood the 1935 FTC not to exercise.”

Concurrence by Judge Henderson. Judge Henderson, a longtime D.C. Circuit judge and appointee of the first President Bush, wrote in her concurrence that she agreed with many of Judge Walker’s points about “the contours of presidential power under Article II of the Constitution” but said she views the government’s likelihood of success on the merits in the cases “as a slightly closer call.”

“Whatever the continuing vitality of Humphrey’s,” Henderson observed, “I agree that we should not extend it in this preliminary posture during the pendency of these highly expedited appeals.” As the same panel of the appeals court had recently explained in Dellinger v. Bessent, No. 1:25-cv-00385-ABJ (D.C. Cir. Mar. 10, 2025, unpublished), she noted, “‘[a]t worst’ Harris and Wilcox ‘would remain out of office for a short period of time,’” compared to the “substantial” injury to the government of “having to try and unravel [Harris’s and Wilcox’s] actions….”

Judge Millett’s dissent. In her dissent, Judge Millett, an Obama appointee, wrote that the two concurring opinions in the case “rewrite controlling Supreme Court precedent and ignore binding rulings of this court, all in favor of putting this court in direct conflict with at least two other circuits.” The stay, she observed, “also marks the first time in history that a court of appeals, or the Supreme Court, has licensed the termination of members of multimember adjudicatory boards statutorily protected by the very type of removal restriction the Supreme Court has twice unanimously upheld.”

Practical implications. The stay order, Millett noted, also “strips the National Labor Relations Board and the Merit Systems Protection Board of the quora that the district courts’ injunctions preserved, disabling agencies that Congress created and funded from acting for as long as the President wants them out of commission.” As a practical outcome, the stay thus “will leave languishing hundreds of unresolved legal claims that the Political Branches jointly and deliberately channeled to these expert adjudicatory entities.”

And in addition, “the majority decisions’ rationale openly calls into question the constitutionality of dozens of federal statutes conditioning the removal of officials on multimember decision-making bodies—everything from the Federal Reserve Board and the Nuclear Regulatory Commission to the National Transportation Safety Board and the Court of Appeals for Veterans Claims.”

Repeated application of Humphrey’s Executor. Taking issue with both Walker and Henderson, Millett observed that “[t]his court has repeatedly applied Humphrey’s Executor as precedent, including as recently as the last two years.” “Other circuits too have faithfully hewed to the Supreme Court’s admonition not to get out over their jurisprudential skis and have continued to apply Humphrey’s Executor.” The duty of the court of appeals, “especially at this early stay stage—is to follow binding and dispositive Supreme Court and circuit precedent in evaluating the government’s likelihood of success.”

Civil service protections and labor peace. Millett concluded that the administration is, in fact, “not likely to succeed on the merits of its argument that the removal provisions are unconstitutional even if binding Supreme Court and circuit precedent did not already resolve the likelihood of success question in favor of Harris and Wilcox.” The United States “historical practice of removal restrictions on multimember boards combined with the acute need for impartial adjudicatory bodies to give effect to civil service protections and to provide labor peace and stability together demonstrate the constitutional permissibility of the removal limitations for members of these two adjudicatory bodies.”

Quoting the late Justice Frankfurter, Millett noted that such a “systematic, unbroken, executive practice, long pursued to the knowledge of the Congress and never before questioned, engaged in by Presidents who have also sworn to uphold the Constitution, making as it were such exercise of power part of the structure of our government, may be treated as a gloss on ‘executive Power’ vested in the President by § 1 of Art. II.” Youngstown Sheet & Tube Co., 343 U.S. 579, 610-611 (1952) (Frankfurter, J., concurring).

Avoidance of instability. Finally, Judge Millett noted that, though “[t]he whole purpose of a stay is to avoid instability and turmoil,” the panel’s decision “creates them.”

The case is Nos. 25-5037 and 25-5057.

Judge: Per curiam.

Attorneys: Jennifer Bennett (Gupta Wessler) for Gwynne A. Wilcox. Laura Myron, U.S. Department of Justice, for Donald J. Trump.

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