A member of the Merit Systems Protection Board who was removed by President Donald Trump earlier this year has asked for an appellate court to reconsider its opinion allowing her firing to go forward.

On Feb. 10, the 45th and 47th president tried to fire Cathy Harris, a Joe Biden appointee whose term expires in 2028, in an email from an assistant, telling her she was “terminated, effective immediately.”

Harris sued in Washington, D.C., and days later won her job back through a temporary restraining order issued in February — and then a permanent injunction which was issued earlier this month — by U.S. District Judge Rudolph Contreras, a Barack Obama appointee.

On Friday, a three-judge panel on the U.S. Court of Appeals for the District of Columbia Circuit issued a 2-1 ruling in the government’s favor, staying the injunction. The ruling allows Trump to fire both Harris and National Labor Relations Board member Gwynne Wilcox — who had also won reprieve from a politically-motivated firing at the district court level.

A Democratic member of the Federal Labor Relations Authority, an independent administrative agency tasked with administering “labor-management relations” for over 2 million government workers, was “unlawfully removed” by President Donald Trump last month, a federal judge ruled Wednesday.

Susan Tsui Grundmann, who was axed on Feb. 11, has been suing the Trump administration for what she claims was an “unconstitutional” removal from the FLRA, which is a three-member agency charged by Congress with “managing federal labor relations” in an “unbiased” and “fair” way that she says is not supposed to “shift with political whims.” With Grundmann in, the FLRA would have a 2-1 Democratic majority until her term expires in July.

On Wednesday, U.S. District Judge Sparkle Sooknanan handed down her ruling in the case — siding with Grundmann and her argument that Trump’s firing of her was “unlawful” — after the Justice Department argued Article II of the Constitution gave Trump the power to remove executive branch officials without cause, including members of the FLRA.

“The Government vigorously defends Ms. Grundmann’s hasty termination on the basis that the Constitution vests the entirety of the ‘executive Power’ in the President,” Sooknanan said. “The government’s arguments paint with a broad brush and threaten to upend fundamental protections in our Constitution. But ours is not an autocracy; it is a system of checks and balances. Our Founders recognized that the concentration of power in one branch of government would spell disaster.”

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Labor & Employment

Trump’s firing of NLRB member could lead to reconsideration of 1935 Supreme Court precedent

By Debra Cassens Weiss

January 30, 2025, 12:09 pm CST

A challenge to a 1935 U.S. Supreme Court precedent could be brewing, after President Donald Trump fired a Democratic member of the National Labor Relations Board.

Fired board member Gwynne Wilcox has said she is “pursuing all legal avenues,” which could lead the administration to argue that Humphrey’s Executor v. United States should be overruled, report Law.com, the Volokh Conspiracy and Bloomberg Law.

The Supreme Court held in Humphrey’s Executor that Congress can prevent a president from removing without cause members of the Federal Trade Commission, a multimember independent agency.

The statute governing the NLRB says its members can be removed “upon notice and hearing, for neglect of duty or malfeasance in office, but for no other cause.” The Trump administration has said Wilcox and NLRB general counsel Jennifer Abruzzo were fired because they were “far-left appointees with radical records of upending long-standing labor law.”

Daniel Wolff, a partner at Crowell & Moring, told Law.com that he thinks that a lawsuit by Wilcox would be “a great vehicle for reconsideration of Humphrey’s Executor.”

“There’s already several Supreme Court justices that have signaled a desire to get the right case to revisit Humphrey’s Executor,” Wolff told Law.com. “I think the day of reckoning is coming.”

The administration could also argue that Humphrey’s Executor doesn’t protect Wilcox because of structural differences between the NLRB and the FTC, said Steve Swirsky, co-chair of Epstein Becker & Green’s labor management relations practice group, in an interview with Law.com.

Members of the NLRB don’t have to be balanced along partisan lines, while the FTC can’t have more than three commissioners from the same political party on its five-member board, Swirsky said.

In tension with Humphrey’s Executor is the June 2020 decision Seila Law v. Consumer Financial Protection Bureau, wrote Jonathan H. Adler, a professor at the Case Western Reserve University School of Law, at the Volokh Conspiracy.

The Supreme Court held in Seila Law that Congress can’t constitutionally impose a for-cause requirement for the removal of the director of the CFPB.

The high court distinguished Humphrey’s Executor, however, noting that the CFPB was headed by a single director, rather than a multimember board, and the single director had significant administrative and enforcement authority.

The administration nonetheless cited Seila Law in its letter justifying Wilcox’s firing, according to Bloomberg Law. The letter argued that NLRB members can be removed because they exercise executive power, and the board isn’t balanced along partisan lines.

Would the Supreme Court overrule Humphrey’s Executor? Administrative law professors interviewed by Bloomberg Law were divided on the likely outcome.

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Law Firms

Online ‘gangsta rap’ discussion wasn’t real reason for McCarter associate’s firing, suit alleges

By Debra Cassens Weiss

January 7, 2025, 12:30 pm CST

A former McCarter & English staff associate alleges that the law firm subjected him to a hostile workplace based on his status as a military combat veteran and fired him on the pretext of violating the firm’s social media policy.

Lawyer William D. Brown Jr., a former Navy SEAL who served in the Iraq War, said he was actually fired for complaints about unequal pay and his push to include veterans in the firm’s diversity, equity and inclusion efforts.

Law.com has coverage of the Dec. 24 lawsuit (previewed here), filed in Essex County, New Jersey, superior court.

Brown said he made $100,000 per year in 2023 after six years at the firm as a career bankruptcy associate, compared to $170,000 in base pay for newly hired regular associates. His bankruptcy work was trimmed after a new chairman took over, and he was assigned to child sexual-abuse defense work despite his distaste for the matters, the suit says.

The LinkedIn post that purportedly led to his firing discussed the glorification of violence and drugs in “gangsta rap” lyrics and “radical culture within the Islamic world” that glorifies violence, Law.com previously reported. The firm said the post promoted negative stereotypes of Muslim and Black Americans.

Brown claimed that there were separate standards of conduct at McCarter & English in its interaction with employees “who adhered to political left orthodoxy” and those “who happened to not endorse the same leftist worldview.”

Brown cited an incident in which a tax partner asked him how many people he had killed. The partner later apologized. But the question led Brown to think that rather being perceived as an honorable person who served his nation, he was “feared, loathed and discounted as a mere ‘killer,’” the suit says.

Brown also said a partner asked him “if he was mentally sound” after he asserted on LinkedIn that veterans are paid less than others for substantially the same work and denied opportunities when they speak up for themselves.

A McCarter & English spokesperson provided a statement to Law.com.

“As always with an initial complaint, it tells one side of the story,” the statement said. “Once the full history is brought to light, we are confident we will be fully vindicated. We intend to defend this case against the firm and clear the names of those individuals referenced within the complaint.”

A French teacher has settled with the Virginia school board that fired him for refusing to use a transgender boy’s pronouns.

Peter Vlaming will receive $575,000 in damages and attorneys’ fees, said his legal team at the Alliance Defending Freedom, a far-right advocacy organization known for filing lawsuits aimed at rolling back the rights of gay, lesbian, and transgender people.

“I was wrongfully fired from my teaching job because my religious beliefs put me on a collision course with school administrators who mandated that teachers ascribe to only one perspective on gender identity — their preferred view,” he said in a statement. “I loved teaching French and gracefully tried to accommodate every student in my class, but I couldn’t say something that directly violated my conscience. I’m very grateful for the work of my attorneys at Alliance Defending Freedom to bring my case to victory, and hope it helps protect every other teacher and professor’s fundamental First Amendment rights.”

More Law&Crime coverage: Pair of Trump-appointed federal judges blocks Biden efforts to protect transgender students

West Point Public Schools Superintendent Larry Frazier told Newport News outlet The Daily Press that “we are pleased to be able to reach a resolution that will not have a negative impact on the students, staff or school community of West Point.”

The Virginia Supreme Court last December reinstated Vlaming’s lawsuit, which the Circuit Court of King William County had previously dismissed.

“[N]o government committed to these principles can lawfully coerce its citizens into pledging verbal allegiance to ideological views that violate their sincerely held religious beliefs,” the decision also said. The judges found that the lower court “erred dismissing this claim on demurrer on the ground that Vlaming’s factual allegations, even if assumed to be true, were insufficient as a matter of law to state a free-exercise claim” under Virginia law.