As Agency Firing Power Heads to the Supreme Court, Where Do the Latest Moves Leave Employers?

Daily twists in the legal battles around employment agency firings may land these suits in front of the country’s highest court. The president recently removed Gwynne A. Wilcox as chair of the National Labor Relations Board (NLRB) and Jocelyn Samuels as a commissioner on the Equal Opportunity Employment Commission (EEOC), raising questions about the future of both organizations. These removals – and the scope of presidential power to do so under the Constitution – appear destined for resolution by the Supreme Court, as both Wilcox and Samuels have now sued to be reinstated to their positions.  

Chief Justice John Roberts, in response to an emergency petition for relief by the Department of Justice, stayed the reinstatement of Wilcox to the NLRB on April 9. For background, the president removed Wilcox from the NLRB on Jan. 27. Wilcox then sued the president. Wilcox alleged that her termination was illegal because, by statute, NLRB members can only be removed “upon notice and hearing, for neglect of duty or malfeasance in office.” District Court Judge Beryl Howell agreed. On March 6, she awarded Wilcox permanent injunctive relief by ordering that Wilcox be returned to her position as if she’d never been terminated.

Weeks later, on March 28, an appellate panel stayed Judge Howell’s order for injunctive relief. This kept the termination in effect while the lawsuit continued. On April 7, the full appeals court vacated the panel’s March 28 order. This ruling allowed Wilcox’s reinstatement to take effect. The life of Wilcox’s lawsuit to date is worth noting, as Samuels’ case could take a similar route. All roads, though, point to the Supreme Court. As Circuit Judge Karen LeCraft Henderson wrote in her brief dissent:

We do the parties (especially a functioning executive branch) no favors by unnecessarily delaying Supreme Court review of this significant and surprisingly controversial aspect of Article II authority. Only the Supreme Court can decide the dispute and, in my opinion, the sooner, the better.  

Chief Justice Robers obliged, entering a stay of Judge Howell’s order on April 9. In support of the government’s request for emergency relief, Solicitor General D. John Sauer argued that “[t]he president should not be forced to delegate his executive power to agency heads who are demonstrably at odds with the administration’s policy objectives for a single day – much less for the months that it would likely take for the courts to resolve this litigation.” The executive branch appears poised to argue that any statute limiting the president’s Article II authority on removing members of the executive branch – even at independent agencies -- is unconstitutional.

For those keeping track at home:

• Wilcox was terminated from her NLRB position on Jan. 27.
• She was reinstated March 6.
• Her termination was reinstated March 28.
• She was again reinstated to her position on April 7.
• Her termination was again reinstated on April 9.

With the Supreme Court’s stay, the NLRB continues to lack a quorum, as only two of the five board member spots are occupied. Without a quorum, the NLRB will be unable to render decisions on pending disputes.   

Just two days after Wilcox’s April 7 reinstatement, Samuels sued the president, the EEOC and Acting Chair Andrea Lucas. Like Wilcox, Samuels claims the president exceeded his legal authority when he removed her from her position.

Congress designed the Equal Employment Opportunity Commission to be comprised of five members, “not more than three of whom shall be members of the same political party.” A three-member quorum is necessary for the commission to take certain actions. Samuels was originally installed on the commission by President Trump during his first term. She was then renominated by President Biden in 2021. Her term was set to expire on July 1, 2026.

On Jan. 27, President Trump removed Samuels and Commissioner Charlotte Burrows from their positions. This left the EEOC with just two commissioners and no quorum. Samuels claims that these removals mark “the first time in the EEOC’s almost 61 year history that a president has sought to remove a member of the Commission prior to the expiration of their term.”

Are employers affected if the EEOC lacks a quorum?

Samuels claims her removal “undermined the EEOC’s historic independence,” “interfered with its statutorily mandated duties to protect workers from discrimination …,” and is an effort “to hamstring the EEOC.” Samuels alleges that “[t]he absence of a quorum prevents the Commission from acting on any matter that requires a full Commission vote, such as certain federal sector appellate decisions and the approval of certain lawsuits and amicus briefs that the Office of General Counsel seeks to file.” Samuels also cites the commission’s responsibility to deliver guidance.

The EEOC has a different take. After the removal of Samuels and Burrows, the EEOC posted new FAQs on its website. In this publication, the EEOC acknowledges the lack of a quorum but maintains that it “remains open for business.” The FAQs address a number of issues and contend that the day-to-day operations of the organization will continue largely unhindered.

Interim guidance from the EEOC, while it lacks a quorum, will be a significant issue moving forward, given the policy disagreements at play.

The EEOC published another document recently on diversity, equity and inclusion efforts in the workplace. On April 3, several former EEOC commissioners and counsel, including Samuels and Burrows, responded by claiming the guidance was not settled on through a quorum vote and that some of the guidance ran contrary to existing EEOC policy.

The former officials argued that because the existing policy was approved by a majority vote of the commission, where the two differ, the guidance voted on and approved by a quorum must prevail.

What does this mean for employers?

It appears inevitable that the Supreme Court will decide whether the president has the authority to remove officers such as Wilcox and Samuels. If the Supreme Court concludes that statutes curtailing the president’s ability to remove officials from the NLRB and EEOC are unconstitutional, the shifts in policy could be seismic.

Regardless, events significant to the landscape of labor and employment law are likely to come early and often.  

Contact Jonathan Maples or any member of the Phelps labor and employment team if you have questions or need advice or guidance.