Labor & Employment Law Daily Wrap Up, PUBLIC EMPLOYEES—D.C. Cir.: Emergency stay against reinstatement of fired NLRB, MSPB members vacated on rehearing, (Apr 7, 2025)

By Jason Albright, J.D.

A divided three-member panel of the D.C. Circuit had granted the stay at the request of the Trump administration on March 28.

An en banc D.C. Circuit today vacated an emergency stay, previously granted by a divided three-member panel of the appeals court, 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. In light of U.S. Supreme Court precedent enunciated in Humphrey’s Executor v. United States, 295 U.S. 602 (1935), and Wiener v. United States, 357 U.S. 349 (1958), concerning removal restrictions for government officials on multimember adjudicatory bodies, the government’s motions for a stay pending appeal were denied. Judges Henderson, Rao, and Walker dissented (Harris v. Bessent, Nos. 25-5037 and 25-5057 (D.C. Cir. Apr. 7, 2025, unpublished)).

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.

Panel’s 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 on March 28.

Judge Millett, the lone dissenter on the panel, observed that the stay it imposed stripped 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.”

Rehearing en banc. The former members petitioned for rehearing en banc, which the D.C. Circuit granted, reversing the panel’s decision and denying the government’s motions for a stay pending appeal.

Humphrey’s Executor and Wiener. The en banc court observed that, in Humphrey’s Executor and Wiener, the Supreme Court unanimously upheld removal restrictions for government officials on multimember adjudicatory boards. And though “two laws governing removal restrictions for single heads of agencies exercising executive policymaking and enforcement powers have been held unconstitutional, see Seila Law v. CFPB, 591 U.S. 197 (2020); Collins v. Yellen, 594 U.S. 220 (2021), the Supreme Court has repeatedly stated that it was not overturning the precedent established in Humphrey’s Executor and Wiener for multimember adjudicatory bodies. Instead, the Supreme Court has, in its own words, left that precedent ‘in place[.]’”

In short, said the full appeals court, “The Supreme Court’s repeated and recent statements that Humphrey’s Executor and Wiener remain precedential require denying the government’s emergency motions for a stay pending appeal.”

Henderson’s dissent. Judge Henderson, who concurred in the prior panel decision imposing the stay, wrote in her dissent that “[w]e do the parties (especially a functioning executive branch) no favors by unnecessarily delaying Supreme Court review of this significant and surprisingly controversial aspect of Article II authority. Only the Supreme Court can decide the dispute and, in my opinion, the sooner, the better.”

Walker’s dissent. Judge Walker, who had similarly concurred in the prior panel decision, argued that Humphrey’s Executor cannot be read as broadly as it once could in light of intervening D.C. Circuit precedent, on one hand, and Seila Law on another.

Rao’s dissent. Judge Rao, also dissenting, argued that, even accounting for disagreement as to the continuing validity of Humphrey’s Executor, the district court’s “remedial overreach” independently justifies a stay.

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

Judge: Per curiam.

Attorneys: Linda Marie Correia (Correia & Puth) for Cathy A. Harris. Jennifer Bennett (Gupta Wessler) for Gwynne A. Wilcox. DOJ Appellate Counsel, U.S. Department of Justice, for Scott Bessent and Trent Morse.

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