Introduction
In 1935, Congress passed the National Labor Relations Act (NLRA), a fundamental legislation that provides protection and legal rights for private sector employees, including the rights to- or not to- “self-organization, to form, join, or assist labor organizations to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection”. National Labor Relations Act, 29 U.S.C. § 157.
Under NLRA, a five-member National Labor Relations Board (“Board”), an independent federal agency, was created to enforce NLRA by conducting investigations and hearings to ensure fair labor practice under the law. Id. § 161. Each member of the Board is appointed by the President with the Senate consent to serve on a five-year term, and “may be removed by the President, upon notice and hearing, for neglect of duty or malfeasance in office, but for no other cause”. A quorum of three is required. Id. § 153.
In September 2023, Gwynne Wilcox was nominated by President Biden and confirmed by the Senate for another five-year term. A week after President Trump sworn into the White House, on January 27, 2025, the White House Presidential Personnel Office sent an email before 11:00PM to Wilcox notifying her termination from the Board. Personnel. Wilcox v. Trump, No. CV 25-334 (BAH), 2025 WL 720914, at *4 (D.D.C. Mar. 6, 2025), hearing in banc denied sub nom. Harris v. Bessent, No. 25-5037, 2025 WL 1033740 (D.C. Cir. Apr. 7, 2025). According to court documents, the termination email only cited “political motivations- that [Wilcox] does not share the objectives of the President’s administration”. See id. Because the Board already has two vacancies, removing Wilcox from the Board had caused the Board unable to meet its quorum to conduct business. Wilcox filed instant lawsuit asserting the removal was in violation of NLRA without any due-process and that it was inconsistent with the executive Power of the President prescribed by the Constitution. See id.
On January 28, 2025, soon after Wilcox was terminated, the White House Office of Personnel Management (OPM) sent out an email titled Fork in the Road to the entire federal employees. In the email, the OPM outlined four “pillars” for all federal employees under the new Trump Administration, including 1) requiring majority of federal employees returning to work in the office; 2) evaluation will be based on performance; 3) majority of federal agencies will likely downsize; 4) introducing an “enhanced standards of conduct” to include “reliable, loyal, trustworthy”. In the end of the email, OPM provided two options for all federal workers: 1) remain at current position, but there is no “full assurance regarding the certainty” of the position or agency; or 2) participate in the “Deferred Resignation Program” where employee would voluntarily submit a resignation by February 6, 2025 and retain all pay and benefits without working until September 30, 2025. Office of Personnel Management, Fork in the Road, (June 14, 2025), https://www.opm.gov/fork.
It is obvious that Wilcox’s termination was just a starting point of a massive federal workforce restructure. However, public servants including federal workers, both political nominees and career workers, have enjoyed special protections under Loudermill. Trump’s Fork in the Road email has shaken the entire federal employment environment. Through the Wilcox case, this article will explore the risks of reshaping federal employment system by replacing due process with “deferred resignation” or executive order.
Overview of Wilcox v. Trump
On March 6, 2025, the United States District Court of the District of Columbia held that the termination of Wilcox without cause nor due process was illegal, and it issued an injunction to restore Wilcox’s position as the member of the Board. In the opinion, Judge Howell pointed out the Article II of the Constitution only granted several appointment powers with consent of the Senate but does not express any power to remove officers of the United States. Judge Howell then turned to a 1935 Supreme Court precedent, Humphrey’s Ex’r v. United States, 295 U.S. 602, 55 S. Ct. 869, 79 L. Ed. 1611 (1935), where the Court ruled that the President has restricted power to remove a member of Federal Trade Commission (FTC) except upon enumerated causes under the applicable statute.
William Humphrey was appointed by President Hoover and confirmed by the Senate to serve as a commissioner of the FTC in 1931 for a seven-year term. In 1933, President Roosevelt sent a letter to Humphrey notifying that he had been removed as FTC commissioner. After Humphrey passed away, his executors filed a lawsuit to recover the full salary for Humphrey for his service as FTC commissioner from 1933 the time when he was removed by President Roosevelt, to 1934, the time he died during his seven-year term. Under the Federal Trade Commission Act of 1914, “No commissioner shall engage in any other business, vocation, or employment. Any commissioner may be removed by the President for inefficiency. neglect of duty, or malfeasance in office.” Federal Trade Commission Act, 38 Stat. 717 (Pub. Law 63-203). In the Humphrey’s Ex’r opinion, Justice Sutherland stated that the legislative language, Congressional report and records of debate all revealed that the FTC was created by Congress with an intent to “create a body of experts who shall gain experience by length of service; a body which shall be independent of executive authority, except in its selection, and free to exercise its judgment without the leave or hindrance of any other official”. The FTC Act of 1914 granted some specialized authorities to the FTC, making it a quasi-legislative and quasi-judicial agency. For example, FTC must make investigations and report to the Congress, in aid of legislative branch; FTC must also act as a “master in chancery” for the courts. So even though it carries out some executive function, the FTC is in fact acting as a quasi-legislative or judicial power. Id. at 628. If a member of FTC serves “at the mere will of the President”, it would contradict with the Congressional intent of the law. id. at 625–26.
In comparison of the FTC in the Humphrey’s Ex’r, Judge Howell concluded that NLRB served similar function as FTC in that case, and determined Wilcox cannot be terminated under §153(a) of the NLRA. See Wilcox v. Trump, 2025 WL 720914, at 9 (“the substantive nature of authority granted to these two independent government entities does not significantly differ.”) The court subsequently issued an injunction to restore Wilcox’s position as the member of NLRB as part of the ruling.
The President appealed the decision to the Supreme Court of the United States. On May 22, 2025, the Supreme Court issued a stay of the district court order pending the ruling from the Court of Appeals for the District of Columbia. In the decision, the Court believes the President is likely to show NLRB exercises more “considerable executive power” compared to FTC in the Humphrey’s Ex’r case; also, the Court wants to avoid “repeated removal and reinstatement” of the individual during the litigation process. Trump v. Wilcox, 145 S. Ct. 1415 (2025).
In the dissent, Justice Kagan emphasized the importance of Humphrey by highlighting the fact that Congress created these independent agencies including FTC, NLRB and Merit Systems Protection Board (MSPB) to function “in certain spheres of government, [by] a group of knowledgeable people from both parties—none of whom a President could remove without cause—would make decisions likely to advance the long-term public good”. Id. at 1417. Justice Kagan further pointed out that in more than a hundred years since Humphrey, no one has doubted NLRB or MSPB does not fall under the removal protection in Humphrey case. But the granting of the stay by majority allowed the President to overrule Humphrey, a Supreme Court precedent, without full review or even mentioning Humphrey. In conclusion, Justice Kagan criticized the Court for favoring President over precedent without rules of briefing or argument.
Avoidance of Loudermill Process
As high-level Presidential appointee being terminated without cause, regardless being required by the law, regular federal employees’ Loudermill rights are also being avoided by the Trump Administration. In 1985, the Supreme Court ruled in Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538 (1985) that if public employees have obtained their property right in continued employment, that right cannot be deprived without due process under the Constitution. In Loudermill case, “property interest” were defined as entitlement to retain positions during good behaviors and efficient service without committing any “misfeasance, malfeasance or nonfeasance in office or conviction of a felony while employed in the civil service”. Id at 539. Ohio Rev. Code Ann. § 124.34 (West). Once the property interest is conferred, it cannot constitutionally deprive such interest without due process. The Court further outlined the required elements for this due process, including the right to an oral or written notice or hearing prior to termination, and afford the employee an opportunity to present their side of story. Id. at 542.
However, the Fork in the Road email effectively ignored the precedent set by the Loudermill case. Yes, it did provide a written notice informing the federal employees that there was no “assurance” that the positions they hold would be available. But in lieu of a hearing, the OPM offered the DRP, attempting to “buy-out” federal employees without due process, regardless of employee’s time of federal service.
Reflection
Title 5 of the U.S.C. §3331 requires all federal employees in civil or uniform service to take an oath to “support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same”. However, upon reviewing both Wilcox case and the Fork in the Road email, one can see the employment protection is going away for all levels of federal employees; and loyalty is being redefined from Constitution to the President. Wilcox was fired because she did not “share the objectives of President’s administration”; OPM sets the new “enhanced standards of conduct” explicitly require employees to be “loyal, reliable, trustworthy”; and the Fork in the Road email to eliminate federal employees without due process. These practices are bluntly ignoring any statutory requirement set by the Congress and the Supreme Court rulings from the past decades. The stability of federal or even any public service employment is being challenged.
This new trend of development signals a broader shift in trends. Public service is shifting away from serving the public but embracing the President’s ideology and the loyalty to higher-ups. It is concerning that this transformation not only violates the established precedents and processes, but also diminishing the foundation of public service that no political interest should be involved when serving the public. The public service is indeed at the fork in the road- should the public servants continue serving as nonpartisan and professional, or political and loyal to the bureaucracy? Where is American civil servants heading in the future? As Wilcox case moving forward at the District of Columbia Court of Appeals, the judges are determining not only one single position, but the future of America’s public service employment.