In Latest Twist, Nlrb Member Reinstated As Judges Call For Supreme Court Guidance

Gwynne Wilcox, a Biden appointee to the National Labor Relations Board, has resumed her seat there a second time since being fired by the Trump Administration in late January.

Wilcox was initially fired from the NLRB on January 28. While the National Labor Relations Act stipulates that members can only be removed from the Board for gross misconduct or dereliction of duty, the Trump administration claims that Article II of the Constitution gives the President broad authority to remove executive officers, and that the restriction on removals is therefore unconstitutional.

On March 6, the D.C. Circuit Court ruled the removal was illegal and restored Wilcox by issuing a stay, but a 3-judge panel of the D.C. Court of Appeals reversed the stay and removed Wilcox from the Board on March 28. The latest decision, by the full 11-judge Appeals Court, reverses that decision and restores the NLRB to a three-member quorum.

The majority of justices agreed with a dissenting judge from that earlier panel that the government failed to show it would suffer irreparable harm from the initial decision to reinstate Wilcox or a strong likelihood to succeed on the merits of the case.

“The Supreme Court’s repeated and recent statements that Humphrey’s Executor and Weiner remain precedential require denying the government’s emergency motions for a stay pending appeal,” the unsigned majority decision read, citing two Supreme Court decisions on the President’s authority to remove members of executive agencies. “The government, in fact, has acknowledged a lack of clarity in the law.”

While the D.C. Court of Appeals is still scheduled to hear the case in full and make a ruling on the merits of the case, several justices argued that the Supreme Court should be involved. Chief Justice Srinivasan, although voting for the majority, noted that he was inclined to allow the Trump administration’s request to for a 7-day stay in the trial to let the Supreme Court weigh in. Judge Karen Henderson, writing for the dissent, argued that the Court should have accepted the request/

“We 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,” Henderson wrote. “Only the Supreme Court can decide the dispute and, in my opinion, the sooner, the better.”

The D.C. Court of Appeals is still scheduled to hear the merits of the case May 16.

This is an update to the story, “D.C. Appeals Court Issues Ruling in Trump’s Favor; NLRB to Lack Quorum Again,” published April 1, 2025. The original story continues below.