En Banc Panel of the Court of Appeals for the D.C. Circuit Reinstates NLRB Member Gwynne Wilcox and Reestablishes Quorum – For Now
En Banc Panel of the Court of Appeals for the D.C. Circuit Reinstates NLRB Member Gwynne Wilcox and Reestablishes Quorum – For Now
Rob Thomas, Of Counsel
The Rocky Mountain Employer has closely followed President Trump’s ousting of National Labor Relations Board (“NLRB” or the “Board”) member Gwynne Wilcox and the ensuing developments in her lawsuit against the President. Just last week, the Rocky Mountain Employer reported that the Court of Appeals for the District of Columbia Circuit granted a stay of District Judge Beryl Howell’s order to reinstate Member Wilcox, and Circuit Judge Walker opined that he believed the President was likely to prevail on the merits based on the scope of his authority under the Constitution.[1] The tide has turned yet again, however, as the full panel of D.C. Circuit judges (the “Panel”) have reversed, en banc, the original stay granted by the D.C. Circuit, thereby reinstating Judge Howell’s original order to reinstate Member Wilcox to the NLRB.
Harris v. Bessent - The En Banc Panel’s Opinion[2]
As previously reported, after the Court of Appeals stayed the District Court’s order to reinstate Member Wilcox, she immediately petitioned the court for an en banc hearing to reconsider its stay and to vacate the same. President Trump opposed and, alternatively, requested a seven-day stay of Member Wilcox’s reinstatement in the event the Panel sided with Member Wilcox in order to give the President time to petition the Supreme Court for review.
The Panel, consisting of eleven Circuit Judges, ruled in favor of vacating the court’s prior grant of a stay, with seven judges in favor and four judges dissenting. Notably, the judges ruled upon appointed party lines, with all seven Democrat-appointed judges siding with Member Wilcox, and the four Republican-appointed judges (including Judge Walker and Judge Henderson, who originally granted President Trump’s requested stay) dissenting. The Panel also denied President Trump’s request for a limited seven-day stay in order to appeal the Panel’s decision to vacate the stay to the Supreme Court.
Rather than opine on the merits of the President’s Constitutional arguments, the Panel succinctly stated that because the Supreme Court has not yet overturned Humphrey’s Executor v. United States and its line of cases, and because Humphrey’s Executor still directly stands for the proposition that Congress may impose limitations on the President’s authority to remove members of multimember independent federal agencies, the Panel was compelled to deny the President’s emergency motion for a stay of Judge Howell’s underlying order to reinstate Member Wilcox. The Panel likewise noted that the President could not show irreparable injury absent a stay because, until the Supreme Court overrules Humphrey’s Executor and its line of cases, there could be no intrusion upon the President’s executive authority under the Constitution.
Judge Rao of the Panel wrote the primary dissent, joined by the other three dissenting Judges. In her dissent, Judge Rao briefly echoed Judge Walker’s prior underlying opinion that President Trump was free to remove Member Wilcox from the Board, and that Congressional restrictions on his ability to do so were unconstitutional notwithstanding Humphrey’s Executor, which she agreed had been “substantially eroded” by subsequent Supreme Court decisions. The bulk of Judge Rao’s dissent focused on the fault of the equitable remedies imposed by Judge Howell in her underlying District Court opinion—namely Member Wilcox’s reinstatement and the order for all federal officers to treat Member Wilcox as if she had never been removed. In Judge Rao’s view, assuming that Member Wilcox’s removal was unlawful, the proper remedy should be one for damages (such as backpay), since federal courts do not have the equitable authority to enjoin the removal of or mandate the reinstatement of executive officers.
Key Takeaways
In her own two-sentence dissent, Judge Henderson lamented that the resolution of the legality of Member Wilcox’s removal was further delayed unnecessarily and that, in her opinion, the sooner the Supreme Court could decide the dispute, “the better.” Given the already-tumultuous history of Member Wilcox’s case, it is highly likely that the Supreme Court will indeed be called upon to provide finality to the dispute. In the meantime, oral argument on the merits of President Trump’s appeal of Member Wilcox’s reinstatement has been placed on an expedited schedule, with oral argument set to take place before the Court of Appeals on May 16. Campbell Litigation will continue to monitor this case and others like it in the coming weeks and months.
[1] See https://www.rockymountainemployersblog.com/blog/2025/4/3/court-of-appeals-for-the-dc-circuit-stays-reinstatement-of-nlrb-member-gwynne-wilcox.
[2]Harris v. Bessent, 2025 WL 1021435 (D.C. Cir. Apr. 7, 2025). Note that as part of its review of Judge Howell’s decision to reinstate Member Wilcox, as set forth in Wilcox v. Trump, the Court of Appeals consolidated President Trump’s request to stay Judge Howell’s order with his request to stay a similar order from District Judge Contreras of the D.C. Circuit, which reinstated Ms. Cathy Harris of the Merit Systems Protection Board to her position after being removed from it by President Trump. See Harris v. Bessent, --- F. Supp. 3d ----, 2025 WL 679303 (D.D.C. Mar. 4, 2025).