On April 7, 2025, National Labor Relations Board (NLRB) Member Gwynne Wilcox was again reinstated after initially being fired by President Trump in a short email on January 27, 2025, stating that he had lost confidence in Wilcox’s ability to lead the Board.  Trump’s firing of Wilcox left the Board without a three-member quorum.  The April 7^th decision by the U.S. Court of Appeals for the District of Columbia is just the latest development in this saga, which is primed for Supreme Court review.

After Wilcox was fired in January, she immediately challenged her removal as unlawful under the National Labor Relations Act (NLRA), arguing that pursuant to the NLRA she could only be removed “upon notice and hearing” or “for neglect of duty or malfeasance in office, but for no other cause.” 

On March 6, 2025, U.S. District Court Judge Beryll Howell agreed with Wilcox, holding that she had been illegally fired based on a 90-year-old case, Humphrey’s Executor v. United States. In that case, the Court held that Congress could protect commissioners of the Federal Trade Commission from removal, meaning that Congress may enact limits on the President’s authority to remove officers of certain independent agencies if they have “quasi-legislative” or “quasi-judicial” functions.  Judge Howell held that the NLRB, which investigates unfair labor practices and adjudicates them through an administrative process, performs quasi-judicial functions. 

The Trump administration promptly appealed the decision and sought an immediate stay of Wilcox’s reinstatement, which had restored a three-member quorum to the NLRB.  On March 28, 2025, a three-judge panel of the D.C. Circuit granted the administration’s request for an injunction staying Judge Howell’s reinstatement of Wilcox.

In the latest development, the D.C. Circuit issued an en banc decision once again reinstating Wilcox, meaning the NLRB has also again returned to a three-member quorum.  Like Judge Howell, the D.C. Circuit’s en banc panel relied principally on Humphrey’s Executor, indicating that it was bound by Supreme Court precedent. 

What does it mean that the NLRB now has a three-member quorum?  The NLRB does not completely shut down if the Board is without a quorum, as it was when Wilcox was fired and her reinstatement was stayed, because certain tasks are automatically delegated when the Board lacks a quorum.  The functioning of the NLRB’s regional offices also remains unchanged.  However, appeals to the NLRB Board cannot be delegated and come to halt when the Board lacks a quorum.

Additionally, the April 7^th decision reinstating Wilcox is not the final word.  Thus far the Court of Appeals decisions have only related to the injunction; the Court of Appeals must still issue a decision as to the merits of Judge Howell’s ruling.  It is also extremely likely that the Supreme Court will review this matter.  So for now, Wilcox is back at work and the Board has a quorum, but that could change within the next six weeks after the Court of Appeals issues its decision on the merits.