D.C. Circuit Panel Rules Trump Can Remove Wilcox from NLRB

Background

In January, President Trump removed Gwynne Wilcox from the NLRB, leaving the Board without enough members to hear cases or quorum. Wilcox challenged her removal, filing a lawsuit that alleged Trump had violated the NLRA by unlawfully terminating her.

U.S. District Judge Beryl A. Howell sided with Wilcox, ruling that her dismissal was illegal. Judge Howell ordered that Wilcox should be allowed to continue with her duties and complete her five-year term, which is set to expire on August 27, 2028.

In response, President Trump immediately appealed the decision to the U.S. Court of Appeals for the District of Columbia.



For more background information, check out our previous blog post.

Current Situation

On March 28, a three-judge panel of the D.C. Circuit granted the stay pending appeal in a 2-1 decision. This stay order has temporarily removed an official necessary for the quorum of the NLRB.

Shortly after the D.C. Circuit's decision, Wilcox filed emergency motions to stay the court's order, seeking to prevent their terminations from taking effect while their cases were reheard en banc (by the full 11-judge D.C. Circuit). However, she did not request an immediate rehearing at that point.

On April 1, Wilcox filed a petition for initial hearing en banc and for rehearing en banc with the full D.C. Circuit.

If the en banc rehearing request is granted, there may be a shift in the case’s outcome. Seven of the D.C. Circuit's active judges are Democrats, while only four are Republicans, which could tip the balance in favor of Wilcox.

The argument before the D.C. Circuit panel is currently scheduled for May 16, though this may change due to the request for an en banc rehearing.

Looking Ahead

As of now, the termination of Wilcox is still in effect, at least temporarily. The motion for stay filed by Wilcox, which would have at least temporarily resulted in their reinstatement, has been denied.