WASHINGTON, D.C. (Law360) — National Labor Relations Board member Gwynne Wilcox’s reinstatement Thursday via district court order restores a quorum allowing the agency to operate, but an appeal looms as President Donald Trump tests his control over the executive branch. Here, Law360 looks at this and other takeaways from Wilcox’s win.
Next Stop: D.C. Circuit
Judge Beryl Howell of the U.S. District Court for the District of Columbia granted Wilcox summary judgment and an injunction Thursday, saying her Jan. 27 firing violated National Labor Relations Act language blocking the president from removing NLRB members without cause. The White House appealed her decision to the D.C. Circuit hours later, advancing its attack on 90-year-old U.S. Supreme Court precedent.
The case is seen as a test of the high court’s 1935 ruling in Humphrey’s Executor v. U.S., which held that President Franklin D. Roosevelt illegally fired a member of the Federal Trade Commission. In doing so, the court held that Congress could protect from firing members of independent agency panels that wield not executive but “quasi-legislative” and “quasi-judicial” powers.
Alexander MacDonald, a shareholder at management-side Littler Mendelson PC and the co-chair of the firm’s Workplace Policy Institute, said observers expected the trial court to side with Wilcox despite the administration’s efforts to distinguish the NLRB of 2025 from the FTC of 1935.
And while that remains the expectation for this next phase, a recent panel decision staying an order returning another fired official to work gives the administration some hope of booting Wilcox while its appeal plays out, MacDonald said.
“It’s entirely possible the D.C. Circuit does the same thing here and says ‘Actually, we’re not going to force the president to work with someone who he believes he can remove from office and he no longer has confidence in,'” he said.
But there’s good reason to think Wilcox may stave off a stay, said Adam Shah, the director of national policy at labor rights group Jobs With Justice.
The panel that stayed special counsel Hampton Dellinger’s reinstatement did not provide its reasoning. But it may have had in mind more recent Supreme Court precedent permitting the president to override job protections for officials who solely lead agencies rather than as a member of a panel, Shah said.
“It’s much more open for a lower court to say [a case like Dellinger’s] falls more on the Seila Law [v. Consumer Financial Protection Bureau] side and less on the Humphrey’s Executor side, while firing a member of the NLRB is different,” Shah said.
To the extent the D.C. Circuit sees Humphrey’s Executor as the more applicable case for Wilcox, it could still reverse the district court on the basis that the courts don’t have the authority to order the government to reinstate fired federal officials, MacDonald said. Judge Howell appears to have styled her decision as an order making NLRB chairman Marvin Kaplan let Wilcox carry out her term — which expires in 2028 — for this reason, but the appeals court could see it as an overstep, he said.
Either way, the case appears Supreme Court-bound, said Michael Fallings, the managing partner at worker-side firm Tully Rinckey PLLC.
“I would think the appellate court is going to agree with this decision, and then we’ll see what the Supreme Court says,” Fallings said.
