Arbitration Agreement Was Not Substantively Unconscionable
Vo v. Technology Credit Union, 108 Cal. App. 5th 632 (2025)
Thomas Vo sued his former employer (TCU) for violations of the FEHA; TCU responded with a motion to compel arbitration. The trial court denied TCU’s motion on the ground that that it was unconscionable due to the arbitrator’s inability to compel prehearing third-party discovery. The Court of Appeal held because there was only a “minimal degree of procedural unconscionability” associated with the “standard pre‑employment paperwork,” the arbitration agreement was not invalid on that ground. As for whether the agreement was substantively unconscionable, the Court held that “the JAMS Rules incorporated into the arbitration agreement here provide an arbitrator the authority to permit nonparty discovery to allow fair arbitration of Vo’s statutory claims.” Consequently, the agreement was not substantively unconscionable, and the motion to compel arbitration should have been granted.
When Is a TRO Treatable as a Preliminary Injunction? – SCOTUS Today
While not a decision on the merits, the U.S. Supreme Court’s opinion on April 4, 2025, in Department of Education v. California is worth considering.
The case came to the Court on an application to stay the temporary restraining order (TRO) of the U.S. District Court for the District of Massachusetts enjoining the government from terminating various education-related grants made by the U.S. Department of Education, and requiring that department’s payment of past-due grant obligations and the continuing payment of current and future ones. The district court based its conclusion on its finding that the respondents were likely to succeed on the merits of their claims under the Administrative Procedure Act (APA).
In a per curiam opinion, the Supreme Court viewed the TRO as having “many of the hallmarks of a preliminary injunction” and treated it that way. In granting the stay, the Court held that the government was likely to succeed in showing that the district court lacked jurisdiction under the APA to order the payment of money. While the APA provides a limited waiver of sovereign immunity on the part of the government, that waiver “does not extend to orders [of a district court] to enforce a contractual obligation to pay money” along the lines of what the district court ordered here. Instead, noted the Court, the Tucker Act, 28 U. S. C. §1491(a)(1), gives the Court of Federal Claims jurisdiction over suits based on “any express or implied contract with the United States.”
The Supreme Court also found that, in view of the fact that no grantee had promised to return grant funds if they were paid out but their termination was later reinstated, the government’s claim that it would be unlikely to recover such funds under that scenario is unrefuted. Nor would the respondents suffer irreparable injury, because they conceded that they have sufficient funds to keep their operations going while the underlying case proceeds and would be able to recover any wrongfully withheld funds later in the Court of Federal Claims. Accordingly, the Supreme Court granted the stay pending the disposition of the appeal to the U.S. Court of Appeals for the First Circuit and a possible disposition of a writ of certiorari. The Chief Justice simply stated that he would deny the application, and short dissents were written by Justice Kagan and Justice Jackson, who was joined by Justice Sotomayor.
Given that the underlying dispute will continue until resolved by the appeals court and, potentially, by the Supreme Court, and that the respondents might be made whole if they were to win, this is not exactly a landmark decision. I summarize it now because what I’m already seeing is a host of APA-related and other actions challenging the many executive orders and other policy dictates being issued by the current administration. In the health care space, for example, we are already seeing challenges to grant terminations and denials based upon grounds just like those raised in the instant case. Knowing the criteria that a majority of the Supreme Court would rely upon in applying the APA in such cases should therefore be instructive to counsel for future complainants.
Employee’s Attorney And Expert Witnesses Were Properly Disqualified For Use Of Employer’s Privileged Information
Johnson v. Department of Transp., 2025 WL 829714 (Cal. Ct. App. 2025)
After Christian L. Johnson sued his employer (Caltrans), an attorney for Caltrans sent a confidential email about the litigation to Nicholas Duncan (Johnson’s supervisor). Duncan then sent an image of the email to Johnson who shared it with his attorney and several retained experts and other individuals. The trial court granted Caltrans’s request for a protective order on the ground that the email was covered by the attorney-client privilege. The trial court also ordered Johnson and his attorney to destroy or return all copies of the email and to refrain from any further dissemination of the email. The trial court subsequently granted Caltrans’s motion to disqualify Johnson’s attorney and retained experts with whom the email had been shared based upon various violations of the protective order. The Court of Appeal affirmed the order. See also Cahill v. Insider Inc., 2025 WL 838264 (9th Cir. 2025) (district court had authority to order media organizations to return or destroy confidential documents that had been inadvertently disclosed).
Employer Did Not Violate FEHA By Denying Employee Disability Retirement Benefits
Lowry v. Port San Luis Harbor Dist., 109 Cal. App. 5th 56 (2025)
John Lowry was employed as a harbor patrol officer before suffering a permanently disabling on-the-job injury. His treating psychiatrist concluded that Lowry suffered from PTSD as a result of the accident and was not fit to return to work and instead should be “medically retired.” Lowry was subsequently terminated because he could not perform the essential job duties of Harbor Patrol Officer III with or without accommodation. Lowry sued for disability discrimination under the FEHA based on the District’s denial of disability retirement benefits. The trial court granted summary judgment to the District on the ground that disability retirement “does not qualify as a term, condition, or privilege of employment.” The Court of Appeal affirmed. See also Mandell-Brown v. Novo Nordisk Inc., 2025 WL 718890 (Cal. Ct. App. 2025) (trial court properly granted employer’s motion for summary after plaintiff failed to file an opposition after receiving two continuances to do so).
Sexual Harassment Lawsuit Cannot Be Compelled To Arbitration
Casey v. Superior Court, 108 Cal. App. 5th 575 (2025)
Kristin Casey, a former employee of D.R. Horton, Inc., sued the company and one of its employees, Kris Hansen, for sexual harassment, sex discrimination, retaliation and failure to prevent discrimination and harassment in September 2023. D.R. Horton attempted to enforce an arbitration agreement in Casey’s employment contract, which included a choice-of-law provision applying California law. Casey opposed arbitration, arguing that the federal Ending Forced Arbitration Act (the EFAA) gave her the right to pursue her claims in court.
The EFAA, enacted in 2022, provides that a “person alleging conduct constituting a sexual harassment dispute” may elect that “no predispute arbitration agreement . . . shall be valid or enforceable with respect to the case filed under federal, tribal or state law and relates to the sexual harassment dispute.” The trial court upheld the arbitration agreement, enforcing the terms to which Casey had agreed. But on a writ petition, the Court of Appeal reversed, holding that the EFAA preempts state law so long as the employment relationship involves interstate commerce (a low hurdle). The court further determined that an employer cannot rely on a choice-of-law clause to avoid the effect of the EFAA.
$2.16 Million Defamation Verdict Is Voided On Appeal
Hearn v. Pacific Gas & Elec. Co., 108 Cal. App. 5th 301 (2025)
In this case, the Court of Appeal reaffirmed the principle that an employee’s tort claim is not separately actionable against an employer when it is premised upon the same conduct that gave rise to the termination of employment and where the damages sought are solely related to the loss of employment. The Court relied upon case law going back as far as Foley v. Interactive Data Corp., 47 Cal. 3d 654 (1988), which delineates the ability of an employee to recover tort damages.
Todd Hearn went to trial on claims for (1) retaliation in violation of section 1102.5 of the California Labor Code and (2) defamation. Hearn’s former employer (PG&E) terminated Hearn based on findings from an investigation into various violations of the employee code of conduct. At trial, the jury found against Hearn on the retaliation claim but found in his favor on the defamation claim, awarding him $2.16 million in compensatory damages. The jury specifically found that the investigative report that resulted in Hearn’s termination was the source of the purportedly defamatory statements. PG&E moved for JNOV on the ground that Hearn had conceded that his damages for the alleged defamation were simply his termination-related damages – i.e., that he had suffered no distinct reputational harm or other damages specifically attributable to the allegedly defamatory conduct. The trial court denied PG&E’s JNOV motion.
In a 2-to-1 ruling, the Court of Appeal reversed the trial court’s judgment entered in Hearn’s favor on the defamation cause of action, agreeing with PG&E that Hearn could not pursue a tort claim against PG&E based on the same conduct and seeking no distinct damages from his unsuccessful wrongful termination claim. In so ruling, the Court reaffirmed the long‑standing principle against an employee bringing a duplicative tort claim against an employer which is simply a wrongful termination claim by another name.
USPS Employee’s Hostile Work Environment Claim Can Proceed
Lui v. DeJoy, 129 F.4th 770 (9th Cir. 2025)
Dawn Lui, the former postmaster of the United States Post Office in Shelton, Washington, alleged she was targeted because of her race, sex and national origin. Lui alleged disparate treatment and retaliation in violation of Title VII. The district court granted summary judgment to the Postmaster General, but the Ninth Circuit reversed in part, holding that Lui’s disparate treatment claim should not have been dismissed. The Court concluded that Lui had satisfied the McDonnell Douglas test for establishing a prima facie case by showing she was removed from her position as Postmaster, demoted and replaced by a white man. The Court further held that there is a genuine dispute of material fact about whether the decisionmaker’s decision to demote Lui was independent or influenced by a biased subordinate and that Lui had properly exhausted her administrative remedies. As for Lui’s claim of retaliation, the Court affirmed summary judgment on the ground that Lui failed to establish a causal connection between any protected conduct and the demotion decision.
Another Court Blocks DEI-Related Certification Requirement
On March 27, 2025, U.S. District Judge Matthew Kennelly of the United States District Court for the Northern District of Illinois issued a temporary restraining order (TRO) prohibiting the Department of Labor (DOL) from enforcing certain provisions of Executive Orders 14173 (Ending Illegal Discrimination and Restoring Merit-Based Opportunity) and 14151 (Ending Radical and Wasteful Government DEI Programs and Preferencing) against Chicago Women in Trades (CWIT), a domestic nonprofit that receives federal funding from the DOL. The court found that Executive Order (EO) 14173’s certification provision, which sought to require CWIT to certify that it does not operate any programs “promoting DEI that violate any applicable Federal anti-discrimination laws,” is problematic because the EO does not define what constitutes “illegal” DEI activities, and that the CWIT is likely to succeed on the merits of their claim that the certification provision violates the First Amendment of the U.S. Constitution. The court precluded the federal government from initiating any False Claim Act enforcement action against CWIT pursuant to the certification provision.[1]
Furthermore, the court determined that the federal government’s enforcement of its policy through EO 14151’s “termination provision,” which — as relevant to the court’s TRO — orders the government to “terminate, to the maximum extent allowed by law . . . all ‘equity action plans,’ ‘equity’ actions, initiatives, or programs, ‘equity-related’ grants or contracts” would cause irreparable harm to CWIT.
While the court’s ruling on EO 14151’s termination provision applies only to CWIT, its ruling on EO 14173’s certification provision extended to all grants and contracts controlled by the DOL, stating that the DOL “shall not require any grantee or contractor to make any ‘certification’ or other representation” contemplated by the provision. The TRO does not extend to other federal agencies.
The TRO will remain in effect for 28 days, and a hearing is scheduled for April 10, 2025, to determine whether the TRO should be converted into a preliminary injunction.
Compliance Obligations Under EOs 14151 and 14173
As previously reported, President Trump signed EO 14151 and EO 14173 on January 20 and 21, 2025, revoking various earlier executive orders, including EO 13985 (a Biden administration executive order requiring federal agencies submit “Equity Action Plans”) and EO 11246 (a longstanding executive order that required certain federal contractors to maintain affirmative action plans). As we noted articles published on February 24 and March 17, the courts have been asked to address the EO’s application and implications to various employers and businesses.
Of particular concern has been the language in EO 14173 requiring contracts and grants to include a term that “compliance in all respects with all applicable Federal anti-discrimination laws is material to the government’s payment decisions for the purpose of section 3729(b)(4) of title 31, United States Code” (the False Claims Act)” as well as requiring contractors and grant recipients “to certify, that [they do] not operate any programs promoting DEI that violate any applicable Federal anti-discrimination laws.”
Consistent with the requirements of EO 14173, some government agencies have begun to issue DEI self-certification forms to contractors and grant recipients to complete and return.
Compliance Implications
Organizations that contract with or seek to contract with the federal government should take proactive steps to ensure compliance with EO 14173 and EO 14151. This includes conducting risk assessments to identify potentially noncompliant DEI or DEIA policies. Organizations should also review and update internal training programs to reflect current obligations under the civil False Claims Act, ensuring training is tailored to relevant operational roles.
[1] This reporting adds to our previous article published on April 3, 2024.
Jepson Claim Format Does Not Avoid Written Description Scrutiny
Current written description jurisprudence can make it difficult to obtain broad antibody patents, leading practitioners to explore alternative claiming strategies in an effort to bypass the limited scope afforded under the structure-function paradigm. Xencor pursued a so-called Jepson claim and argued that the portion of the claim reciting an antibody did not have to satisfy the written description requirement of 35 U.S.C. § 112. However, both the USPTO and the Federal Circuit blocked this attempt to make an end-run around the statute. Xencor also pursued a means-plus-function claim, but because it was invalidated on a different basis it remains to be seen how the court will treat means-plus-function antibody clauses.
What Is A Jepson Claim?
Jepson claims have a specific format provided for and defined in 37 CFR § 1.75(e):
Where the nature of the case admits, as in the case of an improvement, any independent claim should contain in the following order:
(1) A preamble comprising a general description of all the elements or steps of the claimed combination which are conventional or known,
(2) A phrase such as “wherein the improvement comprises,” and
(3) Those elements, steps and/or relationships which constitute that portion of the claimed combination which the applicant considers as the new or improved portion.
As this language highlights, a Jepson claim has a specific format: (i) a preamble that identifies conventional/known features of the claimed subject matter; (ii) a specific transitional phrase, and (iii) a recitation of the “new or improved” aspects of the claimed subject matter.
Xencor’s Jepson Claim
As summarized in the Federal Circuit decision, the Xencor patent application at issue related to modified antibodies with certain amino acid substitutions that prolong half-life in vivo and “reduce[] the need for more frequent treatment.” The Jepson claim at issue recited specific mutations made in an “anti-C5 antibody”:
8. In a method of treating a patient by administering an anti-C5 antibody with an Fc domain, the improvement comprising
said Fc domain comprising amino acid substitutions M428L/N434S as compared to a human Fc polypeptide,
wherein numbering is according to the EU index of Kabat,
wherein said anti-C5 antibody with said amino acid substitutions has increased in vivo half-life as compared to said antibody without said substitutions.
Does a Jepson Preamble Require Written Description Support?
The written description question surrounding Xencor’s Jepson claim focused on whether the written description requirement even applied to the “anti-C5 antibody” recited in the preamble. In particular, Xencor argued that “because the ‘invention’ in a Jepson claim is the improvement, it needed only to have written description for that improvement—here, everything other than the preamble.” Not surprisingly, the USPTO’s position was that “Jepson claim preambles are part of the invention and, therefore, require written description.”
The Federal Circuit opinion was written by District Judge Schroeder of the United States District Court for the Eastern District of Texas (sitting by designation) and joined by Judges Hughes and Stark. The Federal Circuit agreed with the USPTO that “a Jepson claim preamble requires written description.” After citing case law supporting this interpretation, the opinion explained:
The invention [of a Jepson claim] is not only the claimed improvement, but the claimed improvement as applied to the prior art, so the inventor must provide written description sufficient to show possession of the claimed improvement to what was known in the prior art.
*****
While a Jepson claim is directed to the improvement it makes to the prior art, the claim is a singular thing and cannot be separated; its totality is what must have written description support, which necessarily includes support sufficient to lead an ordinary artisan to understand that the inventor did, indeed, possess what the patent contends was in the prior art.
*****
A patentee cannot be permitted to use a Jepson claim to avoid the requirement that she be in possession of the claimed invention simply by asserting something is well-known in the art.
The Federal Circuit also agreed with the USPTO determination that the written description requirement was not satisfied:
The specification only disclosed one anti-C5 antibody, 5G1.1, which the [USPTO] found was insufficient given the “various specificities and epitopes” of the genus. [Additionally,] Xencor had not demonstrated that anti-C5 antibodies were well-known and did not require further support in the specification.
According to the opinion, Xencor’s appeal did not challenge these determinations on the merits, choosing instead to rest on its legal arguments.
What About Means-Plus-Function Claiming?
Another alternative claim format is means-plus-function claiming, which is provided for and defined in 35 USC § 112(f).
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
Xencor’s application included a claim that recited the antibody using means-plus-function language:
9. A method of treating a patient by administering an anti-C5 antibody comprising:
a) means for binding human C5 protein; and
b) an Fc domain comprising amino acid substitutions M428L/N434S as compared to a human Fc polypeptide,
wherein numbering is according to the EU index of Kabat,
wherein said anti-C5 antibody with said amino acid substitutions has increased in vivo half-life as compared to said antibody without said substitutions.
As explained in MPEP § 2181, during examination a means-plus-function clause is interpreted as reciting “the structure, material or act described in the specification as performing the entire claimed function and equivalents to the disclosed structure, material or act.” The structure described in Xencor’s specification as performing the claimed function of “binding human C5 protein” was the 5G1.1 monoclonal antibody.
The USPTO had invalidated this claim for lack of written description for the “method of treating” clause of the preamble, but it is not clear the means-plus-function clause would have fared any better. MPEP § 2181 cites the en banc Federal Circuit decision in Ariad Pharmaceuticals Inc. v. Eli & Lilly Co. for the proposition that when claims “use functional language to define the boundaries of a claimed genus” the specification must show that “the applicant [inventor] has invented species sufficient to support a claim to the functionally-defined genus.” While Xencor may have wanted the Federal Circuit to specifically decide whether and how Ariad applies to means-plus-function clauses, the court instead affirmed the USPTO’s finding that the specification did not demonstrate possession of “a method of treating a patient with 5G1.1 and its equivalents.”
Is This “Too Clever” Claim Drafting?
Judges have criticized “clever claim drafting” to avoid statutory requirements (or current interpretations thereof), but when patentability can turn on precise word choices, practitioners should not be blamed for trying different approaches. As the Honorable Judge Rich stated, “the name of the game is the claims.” When the rules of the game make it difficult to secure broad protection for antibody-related inventions, clever claim drafting may be a winning strategy.
Weekly Bankruptcy Alert April 7, 2025 (For the Week Ending April 6, 2025)
Covering reported business bankruptcy filings in Massachusetts, Maine, New Hampshire, and Rhode Island, and Chapter 11 bankruptcy filings in New York and Delaware listing assets of more than $1 million.
Chapter 11
Debtor Name
BusinessType1
BankruptcyCourt
Assets
Liabilities
FilingDate
Leisure Investments Holdings LLC2(Cancun, Quintana Roo Mexico)
Amusement Parks and Arcades
Wilmington(DE)
$100,000,001to$500 Million
$100,000,001to$500 Million
3/31/25
Boston Harbor Distillery, LLC(Dorchester, MA)
Not Disclosed
Boston(MA)
$500,001to$1 Million
$1,000,001to$10 Million
3/31/25
Terra Laguna Beach, Inc.(Newport, CA)
Restaurants and Other Eating Places
Wilmington(DE)
$1000,000,001to$500 Million
$100,000,001to$500 Million
3/31/25
Majestic Motors, Inc.(Revere, MA)
Not Disclosed
Boston(MA)
$50,001to$100,000
$500,001to$1 Million
4/1/25
Kognitiv US LLC(Minneapolis, MN)
Computer Systems Design and Related Services
Wilmington(DE)
$10,000,001to$50 Million
$10,000,001to$50 Million
4/2/25
Boothe Investments LLC(Worcester, MA)
Not Disclosed
Worcester(MA)
$100,001to$500,000
$100,001to$500,000
4/4/25
House Spirits Distillery LLC(Portland, OR)
Beer, Wine and Distilled Alcoholic Beverage Merchant Wholesalers
Wilmington(DE)
$1,000,001to$10 Million
$1,000,001to$10 Million
4/4/25
Chapter 7
Debtor Name
BusinessType1
BankruptcyCourt
Assets
Liabilities
FilingDate
Artisan & Archive, Inc.(Concord, MA)
Not Disclosed
Worcester(MA)
$50,001to$100,000
$500,001to$1 Million
3/31/25
Global Rugby Ventures, LLC(Hanover, MA)
Not Disclosed
Concord(NH)
$0to$50,000
$1,000,001to$10 Million
3/31/25
Alves HVAC Services, Inc. (Bellingham, MA)
Not Disclosed
Worcester(MA)
$0to$50,000
$500,001to$1 Million
4/1/25
St. Peter’s Country Store, LLC(Cross Lake TWP, ME)
Not Disclosed
Bangor(ME)
$0to$50,000
$100,001to$500,000
4/1/25
Wilde Properties LLC(Cross Lake TWP, ME)
Activities Related to Real Estate
Bangor(ME)
$500,001to$1 Million
$1,000,001to$10 Million
4/1/25
Wilde Recreation, LLC(Cross Lake TWP, ME)
Consumer Goods Rental
Bangor(ME)
$0to$50,000
$50,001to$100,000
4/1/25
Roar Social, Inc.(West Hollywood, CA)
Not Disclosed
Wilmington(DE)
$1,000,001to$10 Million
$1,000,001to$10 Million
4/4/25
1Business Type information is taken from Bankruptcy Court filings, which may include incorrect categorization by the debtor or others.
2Additional affiliate filings include: Aqua Tours, S.A. de C.V., Dolphin Austral Holdings, S.A. de C.V., Dolphin Capital Company, S. de R.L. de C.V., Dolphin Leisure, Inc., Ejecutivos de Turismo Sustentable, S.A. de C.V., Gulf World Marine Park, Inc., GWMP, LLC, Icarus Investments Holdings LLC, Marineland Leisure Inc., MS Leisure Company, Promotora Garrafon, S.A. de C.V., The Dolphin Connection, Inc., Triton Investments Holdings LLC, Viajero Cibernetico S.A. de C.V.
Appeals Court Says Disability Not Required in Order to Recover Back Pay for Violation of ADA’s Medical Inquiry and Examination Provisions
Most employers are aware that, under the Americans with Disabilities Act (ADA), disability-related inquiries and medical examinations of employees may only be required when such inquiries and examinations are “job-related and consistent with business necessity.” However, employers may be less familiar with the fact that the ADA’s limitations on medical inquiries and examinations apply to both employees with a disability and employees without a disability. Indeed, a recent appeals court decision highlights the fact that employers may be liable for monetary damages and other relief for violating the ADA’s medical inquiry and examination limitations, even if the employee subjected to the medical inquiry or examination does not have a disability or perceived disability.
In Nawara v. Cook County, John Nawara, a correctional officer for the Cook County Sheriff’s Office, was involved in multiple heated interactions with his supervisor, Human Resources, and an occupational nurse. Based on these incidents, the Sheriff’s Office placed Nawara on paid leave and required him to provide signed medical authorization forms and undergo a fitness-for-duty examination before returning to work. Nawara refused to submit the requested medical authorization forms and, as a result, was eventually transitioned to unpaid leave.
While on leave, Nawara filed suit alleging that the Sheriff’s Office had violated the ADA’s restrictions on medical inquiries and examinations for employees. After a trial, the jury concluded that the Sheriff’s Office’s requests for Nawara’s medical records and fitness-for-duty examination requirement violated the ADA, but it chose not to award any damages to Nawara. Nawara then asked the trial court to order the Sheriff’s Office to pay him back pay and restore his seniority. The trial court granted Nawara’s request to restore his seniority but denied his request for back pay, concluding that Nawara was required to have a disability or perceived disability in order to obtain back pay for a violation of the ADA’s medical inquiry and examination provisions. Both parties appealed the trial court’s decision.
On appeal, the U.S. Court of Appeals for the Seventh Circuit (which covers Illinois, Indiana, and Wisconsin) noted that, during trial, Nawara had never claimed that he was disabled or that the Sheriff’s Office perceived him to be disabled. Nevertheless, the Seventh Circuit concluded that an employer’s violation of the ADA’s medical inquiry and examination provisions is discrimination on the basis of disability regardless of whether the employee has a disability or perceived disability. Consequently, the Seventh Circuit found that the ADA’s remedies applied to Nawara, and Nawara was authorized to recover back pay and have his seniority restored.
The Nawara case serves as a reminder that situations involving mandatory medical inquiries or examinations for employees are complex and are often difficult for employers to navigate. Employers with questions regarding the permissibility of medical inquiries or examinations should consult with experienced employment counsel before requiring an employee to provide medical information or submit to a medical examination to ensure that such actions do not violate the ADA.
BREAKING: Full D.C. Circuit Restores Status Quo Ante, for a Second Time, at the NLRB
As the firing carousel continues, on April 7, 2025, the full United States District Court of Appeals for the D.C. Circuit vacated the panel’s stay and ordered the reinstatement of National Labor Relations Board (“NLRB” or “Board”) Member Gwynne A. Wilcox. The Board has now regained a quorum for the second time and can resume ruling on pending appeals from ALJ decisions and address requests for review.
As reported here and here, this reinstatement follows (i) a D.C. federal judge’s March 6, 2025, reinstatement of Member Wilcox, after President Trump’s unprecedented firing; and (ii) a D.C. Circuit panel’s March 28, 2025, stay of Member Wilcox’s reinstatement, pending appeal.
The full D.C. Circuit split along appointed-party lines, with seven (7) Democrat-appointed judges making up the majority and four (4) Republican-appointed judges dissenting. The majority again relied upon Humphrey’s Executor v. United States, 295 U.S. 602 (1935), as well as Wiener v. United States, 357 U.S. 349 (1958), which the Court said “unanimously upheld removal restrictions for government officials on multimember adjudicatory boards.” While the Seila Law LLC v. Consumer Financial Protection Bureau, 591 U.S. 197 (2020), and Collins v. Yellen, 594 U.S. 220 (2021), decisions held removal certain restrictions to be unconstitutional as applied to two (2) specific agencies, the majority indicated that the Court was still required to follow “extant Supreme Court precedent unless and until that Court itself changes it or overturns it.” As neither Selia nor Collins expressly overturned Humphrey’s Executor or Wiener, the Court concluded that it was required to follow that extant precedent.
The Court further noted that it set a “highly expedited” schedule for resolution of the merits of the government’s appeals, which seemed intended to mitigate any potential harm from Member Wilcox’s reinstatement. That also might have advised the Court’s decision to deny a 7-day stay of Member Wilcox’s reinstatement for the government to seek relief from the Supreme Court. This issue nevertheless seems to be headed for the Supreme Court, which would be faced with the decision of whether to (i) prohibit Presidents from firing NLRB members; (ii) narrowly permit Presidents to fire NLRB Members; or (iii) overturn Humphrey’s Executor and Wiener to allow Presidents to fire any agency head(s), at will.
We will continue to monitor the Wilcox appeal and its continued impact upon the NLRB.