Labor & Employment Law Daily Wrap Up, REMEDIES, DAMAGES—D.D.C.: Trump administration loses bid for stay of order reinstating FLRA member, (Jun 17, 2025)

By Marjorie Johnson, J.D.

The court distinguished a recent Supreme Court order staying preliminary injunctions against the President’s removal of NLRB and MSPB members.

A federal court in the District of Columbia rejected the Trump administration’s belated motion for a stay pending appeal of its prior order mandating that former Federal Labor Relations Authority (FLRA) Member Susan Grundmann, whose removal had been deemed by the court to have violated the Federal Service Labor-Management Relations Statute (FSLMRS), be treated as a de facto member of the agency for the remainder of her term. Relying on the reasoning of its prior opinion granting summary judgment in favor of Grundmann, and distinguishing the Supreme Court’s recent order in Trump v. Wilcox, the court found that the government failed to demonstrate a likelihood of success on the merits, nor did it show that it would suffer irreparable harm without a stay or that a balance of the equities weighed in its favor (Grundmann v. Trump, No. 25-424 (SLS) (D.D.C. Jun. 13, 2025)).

Removal leads to lawsuit. President Trump removed Grundmann from the FLRA on February 10, 2025, when a White House deputy director sent her a two-sentence email informing her of her termination. She challenged her removal by filing this lawsuit on February 13, claiming that the President and the Chairman of the FLRA had violated the removal protections guaranteed by the FSLMRS. She then filed a combined motion for preliminary injunction and summary judgment on February 14. The government responded by arguing that the statutory removal protections ran afoul of Article II of the U.S. Constitution.

Reinstated. The court ruled in Grundmann’s favor on March 12, ordering de facto reinstatement for the remainder of her term. The government appealed the court’s decision on May 8, only a few days before the 60-day deadline. Nearly three weeks after that, on May 27, it filed the instant motion seeking to stay the court’s order pending appeal.

Likelihood of success. Reiterating all of the reasons it previously found supported summary judgment in Grundmann’s favor, the court found that the government failed to show a substantial likelihood of success on the merits. The Supreme Court’s 2020 decision in Seila Law LLC v. CFPB recognized that Congress may constitutionally limit the President’s removal authority when creating “multimember expert agencies that do not wield substantial executive power.” Citing Seila Law and other Supreme Court precedent, the court ruled that the FLRA fit that description.

No ‘substantial executive power.’ First, the FLRA shared “several organizational features” that helped explain the Court’s characterization of the FTC as non-executive in Humphrey’s Executor—it is a small multimember agency balanced along partisan lines with staggered terms and duties ordered toward expertise. Moreover, the FLRA does not wield substantial executive power as it may conduct hearings and resolve complaints, much like the War Claims Commission in Wiener v. United States, but may enforce its orders in court, like the FTC as described in Humphrey’s Executor. And its power to promulgate regulations governing the administration of labor disputes in the federal workforce pales in comparison to the wide-ranging regulatory power chastised in Seila Law.

Trump v. Wilcox. The government argued that that the Supreme Court’s recent order in Trump v. Wilcox staying preliminary injunctions against President Trump’s removal of NLRB member Gwynne Wilcox and MSPB member Cathy Harris demanded the opposite result. There, the Supreme Court granted a stay in part because it thought “the Government [was] likely to show that both the NLRB and MSPB exercise considerable executive power.” However, “this single sentence” did not convince the court to change its prior analysis as to the FLRA and ultimate conclusion that the FLRA does not exercise substantial executive power.

Indeed, because the Wilcox order did not identify which of the purportedly executive powers exercised by the NLRB and the MSPB might be “considerable,” the court could not be certain those powers were present in this case, nor did it believe that the Supreme Court meant to announce a new rule by using the adjective “considerable” instead of “substantial.” The court also rejected the government’s reliance on D.C. Circuit precedent explaining that the “structure, role, and functions of the [FLRA] were closely patterned after those of the NLRB,” explaining that the language about structure was unrelated to the powers exercised by the FLRA and could also be distinguished. In sum, the court found that it was “not obvious that the NLRB and the FLRA are tied at the hip,” particularly because “the Supreme Court did not explain which of the NLRB’s purportedly executive powers were likely to be considerable.”

Irreparable injury. The government also failed to show irreparable injury absent a stay. While it argued that “no basis exists for distinguishing the Supreme Court’s assessment of the equities in the Wilcox Stay Order from those at play here,” the court found two important distinctions. First, any harm to the government would be particularly short-lived since the President would soon be free to nominate Grundmann’s replacement on July 1, 2025, when her five-year term is set to end. Thus, a stay would not be necessary, as the Supreme Court found in the Wilcox order, “to avoid the disruptive effect of the repeated removal and reinstatement of officers during the pendency of this litigation.”

Second, the government’s own actions during litigation reflected a lack of urgency inconsistent with irreparable harm. Indeed, it waited nearly two months after the court’s summary judgment decision to file its notice of appeal, and almost another three weeks to file this motion to stay. “This is not the sort of reaction one expects from a party claiming irreparable injury,” stated the court.

Balancing of equities and public interest. Finally, if the court were to grant the stay motion, the FLRA would retain only two of its three members, running the risk of deadlock at a particularly bad time considering the recent widespread firings across the federal workforce. Congress also had already balanced the equities in a way that counsels against allowing deadlock by providing by statute that “labor organizations and collective bargaining in the civil service are in the public interest” and that “the public interest demands... the efficient accomplishment of the operations of the Government.”

The case is No. 25-425 (SLS).

Judge: Sooknanan, S.

Attorneys: Norman Larry Eisen (State Democracy Defenders Action) for Susan Tsui Grundmann. Alexander William Resar, U.S. Department of Justice, for Donald J. Trump.

Cases: RemediesDamages Discharge PublicEmployees DistrictofColumbiaNews GCNNews