By Daniel Wiessner
(Reuters) – Donald Trump can – for now – remove Democratic members from two federal labor boards, a U.S. appeals court ruled on Friday, handing the Republican president a victory in his efforts to bring independent federal agencies under his control.
A panel of the U.S. Court of Appeals for the District of Columbia Circuit in a 2-1 decision paused rulings by two judges who had found that Trump’s removal of Cathy Harris from the Merit Systems Protection Board and Gwynne Wilcox from the National Labor Relations Board was unlawful, pending the outcome of the Justice Department’s appeals.
Without Wilcox and Harris, the five-member NLRB and three-member Merit Systems Protection Board will not have enough members to decide cases, bringing the work of the agencies to a standstill.
The White House, the agencies, and lawyers for Harris and Wilcox did not immediately respond to requests for comment.
Like several other agencies, the labor boards were set up by Congress to be independent from the president in order to maintain impartiality when they decide individual cases. Congress passed laws giving job protections to members of these boards, allowing them to be fired by a president only for “neglect of duty or malfeasance in office” and, in the case of the merit board, also for inefficiency.
The Trump administration acknowledged violating these laws, but said the protections from removal for members of the two boards ran afoul of the powers given to the president under the U.S. Constitution.
The NLRB hears cases in which private-sector employers and labor unions are accused of illegal labor practices. The Merit Systems Protection Board hears appeals by federal employees when they are fired or face other discipline, and could play a key role in determining whether Trump’s ongoing purge of the federal workforce is legal.
Trump fired Wilcox and Harris soon after he took office in January, the first time a president had acted to remove members of either board.
Harris and Wilcox filed lawsuits separately accusing Trump of violating the statutory job protections in firing them.
Numerous lawsuits have been filed challenging the statutory job protections for NLRB members, including by Amazon.com and Trump adviser Elon Musk’s SpaceX. Some judges have agreed with the challenges and blocked administrative cases from proceeding, but others have upheld the legality of the protections.
Two judges ruled in March that Trump could not fire the head of the Office of Special Counsel, an agency watchdog that protects the rights of whistleblowers, or a member of a board that hears disputes between federal agencies and unions for agency employees.
The D.C. Circuit subsequently cleared the way for Trump to remove the special counsel, and the official withdrew his legal challenge.
(Reporting by Daniel Wiessner in Albany, New York; Editing by Alexia Garamfalvi and Will Dunham)
