A federal appeals court appeared to split while considering whether to sideline two independent agency officials as the Trump administration continues to fight for the legal right to fire them.
The US Court of Appeals for the District of Columbia Circuit showed its lack of unanimity during oral argument Tuesday over the Trump administration’s request to halt federal judges’ orders that reinstated Gwynne Wilcox to the National Labor Relations Board and Cathy Harris to the Merit Systems Protection Board.
Judge Patricia Millett, an Obama appointee, appeared to lean against staying the lower courts’ decisions, while Judge Justin Walker, a Trump appointee, seemed more aligned with the Trump administration’s position. But Judge Karen Henderson, a George H.W. Bush appointee, gave few clues about her views on the administration’s request.
The NLRB and MSPB would drop below the minimum number of members necessary to issue decisions if the D.C. Circuit freezes the orders that put Wilcox and Harris back to work at their respective agencies.
President
Not a ‘Rorschach Test’
The debate over Trump’s sacking of independent agency officials involves a line of evolving Supreme Court jurisprudence going back a century. But the central precedent at issue is 1935’s Humphrey’s Executor v. US, which upheld Federal Trade Commission members’ firing shields.
Justice Department attorney Eric McArthur told the D.C. Circuit that Humphrey’s Executor doesn’t apply to Wilcox or Harris, so the court should stay the reinstatment orders because the administration will win when the merits of the termination cases are considered in future proceedings.
The Supreme Court left the D.C. Circuit in “something of a tough spot” in light of its ruling in Seila Law v. CFPB that repudiated the central rationale of Humphrey’s Executor without overruling it, according to McArthur. That 2020 decision modified the standard for constitutional restrictions on the president’s firing authority such that it only covers agency board members who don’t exercise substantial executive power, which NLRB and MSPB members do, he said.
But the Supreme Court has repeatedly refused to overturn Humphrey’s Executor, and hasn’t dealt with predominantly adjudicatory boards since it upheld the removal protections at issue in 1958’s Wiener v. US, said Judge Millett.
“Our test for whether the Supreme Court has gotten rid of something is pretty strict,” she said. “We don’t get to treat it as some sort of Rorschach test and we see in it whatever we wish.”
The Trump administration wants the D.C. Circuit to “follow Supreme Court precedent but not take them at their word and instead psychoanalyze whether somehow they were subconsciously overruling what they said they were keeping in place,” Millett said.
It would be difficult to write an opinion “with any intellectual integrity” that embraces the Trump administration’s view of precedent on removal protections, she said.
Squeeze on Humphrey’s
The D.C. Circuit is bound by Humphrey’s Executor and Weiner, Judge Walker said, but it’s also bound by Supreme Court decisions that took a more skeptical view of restrictions on the president’s removal power.
Humphrey’s Executor is getting squeezed between the Constitution’s text and early American traditions on one side, and high court decisions from the last 15 years on the other side, Walker said. He likened the situation to the trash compactor that nearly crushed the heroes in the movie “Star Wars.”
Although courts should apply Humphrey’s Executor, they should treat it like they treat like 1971’s Bivens v. Six Unknown Named Agents, Walker said. The high court in 2022 narrowed when plaintiffs can sue under Bivens to a set of facts highly similar to the original case and two other cases.
But to make that analogy work with Humphrey’s Executor, it would mean that you could only sue under Bivens if your name was Bivens, said Harris’ lawyer, Nathaniel Zelinsky of Milbank LLP. The Supreme Court didn’t say removal protections are only valid for FTC members, instead leaving the Humphrey’s Executor rule in place for other independent agency boards, he said.
Ruling in favor of Wilcox and Trump would mean disagreeing with Justice Brett Kavanaugh, who said as a D.C. Circuit judge that the NLRB and MSPB members exercise substantial executive power, Walker said.
Wilcox’s lawyer, Deepak Gupta of Gupta Wessler LLP, disagreed.
“That anticipates the merits and probably anticipates the question that ultimately reaches the Supreme Court,” Gupta said.
The cases are Wilcox v. Trump, D.C. Cir., No. 25-5057, oral argument held 3/18/25 and Harris v. Bessent, D.C. Cir., No. 25-5037, oral argument held 3/18/25.
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