Fired Agency Officials to Defend Reinstatements at D.C. Circuit

The Trump administration will try to persuade a federal appeals court to block rulings that sent two illegally fired independent agency officials back to work.

The US Court of Appeals for the District of Columbia Circuit is set to hear oral argument Tuesday on the administration’s request to freeze orders reinstating Gwynne Wilcox to the National Labor Relations Board and Cathy Harris to the Merit Systems Protection Board.

How the appeals court rules on the stay request could determine whether those two federal boards can keep the minimum number of members needed to issue decisions while litigation on the merits of Wilcox and Harris’ cases continues, or if they’ll again be hobbled by losing their quorums.

Litigation at the appeals court is the next phase of the Trump administration’s effort to win court approval of its claim of broad authority to fire independent agency board members with for-cause dismissal protections. That legal fight appears likely to reach a US Supreme Court that has shown an openness to further expanding presidential removal power.

District court judges appointed by Democratic presidents have found that Trump’s terminations were illegal. They’ve reinstated Wilcox to the NLRB, Harris to the MSPB, Susan Grundmann to the Federal Labor Relations Authority, and Hampton Dellinger to his role heading the Office of Special Counsel.

The same D.C. Circuit motions panel that will consider sidelining Wilcox and Harris granted the administration’s request to stay Dellinger’s reinstatement order, which led to him dropping his case. But Dellinger’s case was legally distinct from Wilcox and Harris’ cases because he was the single head of an independent agency rather than a board member.

Judges Karen Henderson, a George H.W. Bush appointee, Patricia Millett, an Obama appointee, and Justin Walker, a Trump appointee, make up that panel.

Zombie Humphrey’s Executor?

The district court rulings on Wilcox and Harris relied on Humphrey’s Executor v. US, a 1935 Supreme Court decision that upheld Federal Trade Commission members’ for-cause removal protections.

The Trump administration argued that precedent doesn’t apply because NLRB and MSPB members wield executive power, and thus must be accountable to the president by at-will removal under the high court’s 2020 decision in Seila Law v. CFPB.

The administration asserted in a stay petition that “even the 1935 FTC could today be understood as exercising executive power,” a reading of agency functions that Wilcox said could have broad ramifications that contradict Humphrey’s Executor.

“To adopt the government’s sweeping argument in this case would thus mean invalidating for-cause removal protections for every independent agency, with potentially catastrophic consequences to the structure of the federal government,” she said in her brief.

The Supreme Court said in 1988’s Morrison v. Olson that the president can’t fire every official exercising authority within the executive branch, Harris said. Instead, the court recognized a spectrum running from officials classified as purely executive, who can be fired at will, to those who serve quasi-judicial and quasi-legislative roles, she said in her brief.

Public Interest Concerns

The Trump administration raised several other arguments, including that reinstatement isn’t an appropriate remedy, that the terminations didn’t cause the requisite harm to the board members, and that the public interest weighs against Wilcox and Harris’ return.

The district judge who ruled in Wilcox’s favor said the public would benefit because her return to the NLRB would restore the board’s quorum, thus allowing it to carry out its duties.

Her reinstatement is problematic, the administration argued, because any action the agency takes with Wilcox as a member will be called into question if her return is ultimately deemed invalid.

But the opposite is also true, former NLRB chair Lauren McFerran told Bloomberg Law. If another member joins the board during the pendency of a successful Wilcox appeal, the rulings that board make will be vulnerable to challenge because members have the right to join any case, she said.

Although there are potential problems either way, the better default rule is for Wilcox to return because it guarantees that the board functions, including handling routine-but-important matters like adopting uncontested ALJ rulings and certifying elections, said McFerran, a senior fellow at The Century Foundation.

McFerran joined a group of former NLRB members who backed Wilcox in a brief. The case has attracted several amicus briefs filed with the D.C. Circuit, including states and advocacy groups that have lined up for either side of the debate.

Wilcox is represented by Deepak Gupta of Gupta Wessler LLP. Harris is represented by Nathaniel Zelinsky of Milbank LLP. Justice Department attorney Eric McArthur will represent the government.

The cases are Wilcox v. Trump, D.C. Cir., No. 25-05057, oral argument scheduled 3/18/25 and Harris v. Bessent, D.C. Cir., No. 25-05037, oral argument scheduled 3/18/25.