Merit Systems Protection Board member Cathy Harris and National Labor Relations Board member Gwynne Wilcox were fired by President Trump early this year. A panel of judges at the D.C. Circuit Court of Appeals says the firings were lawful.
A three-judge panel of the D.C. Circuit ruled 2-1 that President Trump lawfully removed two members of independent agencies who are normally protected from removal except for cause, concluding the officials wielded significant executive power. The decision arrives as the Supreme Court prepares to hear a related case.
The appeal was brought by Cathy Harris, a Democratic MSPB member, and Gwynne Wilcox, a Democratic NLRB member. Both were dismissed within weeks of Mr. Trump taking office without the administration citing statutorily permissible reasons such as neglect of duty or malfeasance.
The MSPB handles federal employees’ appeals of personnel actions; the NLRB adjudicates unfair labor practices, oversees union elections and issues remedies including reinstatement and back pay. Both agencies have multiple presidentially appointed, Senate-confirmed members serving staggered terms.
Lower courts had ordered Harris and Wilcox reinstated, relying on the 1935 Supreme Court precedent Humphrey’s Executor, which limits the president’s removal power over agencies whose functions are “quasi-judicial and quasi-legislative.” The Trump administration appealed, and in May the Supreme Court issued an emergency order allowing the firings to stand pending review, saying the government was likely to show the agencies exercise considerable executive power.
In the D.C. Circuit majority opinion, Judge Gregory Katsas, a Trump appointee, pointed to the MSPB’s and NLRB’s substantive rulemaking authority and broad remedial powers. He declined to decide whether truly “purely adjudicatory” agencies or bodies like the Federal Reserve remain insulated from presidential removal.
Judge Florence Pan, the lone dissenter and a Biden appointee, argued the MSPB and NLRB do not exercise substantial executive power and warned that the ruling risks politicizing agency decisions, undermining expertise, merit-based hiring and the public interest.