Decision could accelerate shifts in union elections, ULP remedies, federal discipline
On December 5, 2025, the D.C. Circuit held that presidents may remove NLRB and MSPB members at will, finding the statutory for‑cause limits unconstitutional.
In consolidated appeals involving former NLRB member Gwynne A. Wilcox and former MSPB member and chair Cathy A. Harris, the U.S. Court of Appeals for the D.C. Circuit held that Congress may not restrict the President’s ability to remove members of the National Labor Relations Board and the Merit Systems Protection Board. The court reversed district court rulings that had reinstated Wilcox and Harris under statutory for‑cause removal protections.
The statutes at issue provide five‑year terms for NLRB members, removable by the President only for “neglect of duty or malfeasance in office,” and seven‑year terms for MSPB members, removable only for “inefficiency, neglect of duty, or malfeasance in office.” The government did not argue that Wilcox or Harris engaged in conduct meeting those standards. It argued instead that these limits are unconstitutional because the boards exercise substantial executive power that must remain subject to at‑will presidential removal.
The court described the NLRB’s authorities as extending beyond the narrow, quasi‑legislative or quasi‑judicial functions approved in Humphrey’s Executor in 1935. The NLRB conducts formal adjudications of unfair labor practice complaints; issues cease‑and‑desist orders; and may order affirmative remedies, including reinstatement and back pay, to effectuate the National Labor Relations Act. The Board has also claimed the power to award compensatory‑ and consequential‑type monetary relief in some circumstances, a point on which courts have disagreed. In some instances it may treat speech as an unfair labor practice and, as a remedy, require employer communications. The NLRB litigates in federal court, including seeking interim injunctions in district courts and petitioning courts of appeals to enforce orders, and it acts through its own counsel. It also determines appropriate bargaining units, supervises union elections, and has rulemaking authority to issue regulations necessary to carry out the Act.
For the MSPB, the court emphasized its authority to adjudicate federal employment disputes and “take final action” within its jurisdiction. Federal employees may appeal agency discipline and seek corrective action for “prohibited personnel practices,” which include various forms of discrimination, retaliation, and political coercion. The MSPB may order reinstatement, back pay, compensatory and consequential damages, attorney’s fees, and other relief. It may impose discipline on offending officials, including removal, demotion, suspensions, debarment from federal service for up to five years, and civil penalties, and it may order salary withholding for noncompliance with its orders. Any MSPB member may order a temporary stay of a personnel action reasonably believed to be a prohibited practice, subject to statutory time limits and extensions. The Board can appear in court through its own attorneys and has regulatory authority needed to perform its functions, including for administrative law judge matters.
On that record, the majority concluded that both agencies wield substantial executive power, including rulemaking, administrative adjudication with binding relief, and independent litigation. The court contrasted this with Humphrey’s Executor (1935), where the Supreme Court allowed for‑cause protections for FTC commissioners because the FTC was then understood to perform limited, “quasi‑legislative” and “quasi‑judicial” functions like investigations, reports, assisting courts, and issuing cease‑and‑desist orders. Because today’s NLRB and MSPB exercise broader executive authorities than the FTC did in 1935, the D.C. Circuit held Congress cannot restrict the President’s removal of their members. Following Supreme Court remedial practice, the court declined to narrow the agencies’ powers and instead treated the statutory for‑cause removal limits as unenforceable.
Judge Pan dissented, arguing that the decision conflicts with long‑standing Supreme Court precedent allowing multimember expert agencies with for‑cause protections and warning that, if the MSPB is deemed to wield “substantial executive power,” few independent agencies would remain.
For HR leaders, the implications are practical. The NLRB’s leadership – central to unfair labor practice standards, remedies, and union election rules – can now be changed by the President without cause, increasing the likelihood of faster policy shifts with changes in administration. In the federal sector, the MSPB’s adjudication of discipline, whistleblower claims, and prohibited personnel practices continues, but its members are now removable at will. The decision does not alter the statutory frameworks these bodies administer; it changes who can lead them and how quickly leadership can change.
The opinion turns on the agencies’ current statutory powers. It does not decide whether Congress can protect purely adjudicatory bodies lacking broader policymaking or enforcement authority, and it does not address other agencies such as the Federal Reserve.
