Update: The NLRB Has Lost Its Quorum – DC Circuit Stays District Court’s Reinstatement of Board Member Gwynne Wilcox – and a New General Counsel Has Been Nominated

On March 28, 2025, a divided three-judge panel of the United States Court of Appeals for the District of Columbia Circuit ruled that President Donald Trump likely has the authority to remove National Labor Relations Board (NLRB) member Gwynne Wilcox, as well as Merit Systems Protections Board (MSPB) member Cathy Harris, without cause.

In granting the Government’s motion for an emergency stay of the reinstatement orders of the United States District Court for the District of Columbia, the appeals court has once again left the NLRB without a quorum.

The Future of Humphrey’s Executor Remains Unresolved

In a two-to-one decision, the panel held that the President likely had the legal authority to remove Wilcox and Harris from their positions, notwithstanding that the Executive did not show that the removals were for cause, as required under the statutes that created the agencies. In so ruling, the Court has added to the list of cases that appear to further narrow the application of the Supreme Court’s holding in Humphrey's Executor v. United States, 295 U.S. 602 (1935). There, the Court unanimously held that the President lacked the power to remove executive officials of a quasi-legislative or quasi-judicial administrative body for reasons other than what is allowed by Congress.

In the instant case, the Trump administration argued that Humphrey’s Executor was not good law and should no longer be followed. However, the D.C. Circuit did not go so far, but rather concluded that Humphrey’s Executor did not apply because of the differences between the NLRB and the MSPB on the one hand, and the Federal Trade Commission, the agency at issue in Humphrey’s Executor, on the other.

In her dissent, Judge Patricia Millett disagreed with the majority about the applicability of Humphrey’s Executor to the NLRB and the MSPB, noting that the decision “marks the first time in history that a court of appeals, or the Supreme Court, has licensed the termination of members of multimember adjudicatory boards statutorily protected by the very type of removal restriction the Supreme Court has twice unanimously upheld.” She called the majority’s decision “a hurried and preliminary first-look ruling by this court to announce a revolution in the law that the Supreme Court has expressly avoided,” and one which would “trap in legal limbo millions of employees and employers whom the law says must go to these boards for the resolution of their employment disputes.”  

What Happens Now While the NLRB Again Lacks a Quorum?

As we previously reported, while without a quorum, i.e., at least three Board members, the NLRB is not able to issue decisions or engage in rulemaking. Nevertheless, the Board has indicated it will continue to perform other functions, citing the NLRB’s 2011 “Order Contingently Delegating Authority to the General Counsel” contained at 76 FR 69768, which includes the ability to initiate and prosecute proceedings under Section 10(j) or Section 10(e) or (f), and contempt proceedings pertaining to the enforcement of or compliance with any order of the Board, even though this delegation has been challenged in the past.

Of course, the President retains the ability to submit nominations for the other two vacant seats on the five-member NLRB to the Senate. Confirmation of one new member would reestablish a quorum. When and whether that will happen remains to be seen. And, as to the question of the continued viability of Humphrey’s Executor, it is virtually certain that the Supreme Court will opine during its current term, either with regard to Ms. Wilcox or in other pending cases that raise the issue.

The President Has Nominated a New General Counsel for the NLRB

On March 25th, the White House announced the nomination of Crystal Carey, a management side labor lawyer, for the role of NLRB General Counsel (GC). The nomination is subject to confirmation by the Senate and it is not known when the nomination will be considered and acted upon. In the meantime, the role of the GC remains covered by William Cowen, who was named Acting General Counsel on March 3rd, following the President’s termination of Jennifer Abruzzo, a longtime NLRB attorney who served as GC under President Biden.

Epstein Becker Green Staff Attorney Elizabeth A. Ledkovsky assisted with this publication.