Appellee v. Scott Bessent, in his official capacity as Secretary of the Treasury, et al.,

Appellants ------------------------------ Consolidated with 25-5055 ------------------------------ No. 25-5057 1:25-cv-00334-BAH Gwynne A. Wilcox,

Appellee v. Donald J. Trump, in his official capacity as President of the United States and Marvin E. Kaplan, in his official capacity as Chairman of the National Labor Relations Board,

Appellants

BEFORE: Srinivasan*, Chief Judge, and Henderson**, Millett, Pillard, Wilkins, Katsas**, Rao**, Walker**, Childs, Pan, and Garcia, Circuit Judges

ORDER

Upon consideration of the petitions for hearing en banc, which include motions for en banc reconsideration and vacatur of the court’s March 28, 2025 order granting United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT ____________ No. 25-5037 September Term, 2024 the government’s motions for a stay pending appeal, and the combined opposition thereto, which includes a request for a 7-day stay if the motions are granted, it is

ORDERED that the motions for en banc reconsideration and vacatur be granted and the government’s motions for a stay pending appeal be denied.

In Humphrey’s Executor v. United States, 295 U.S. 602 (1935), and Wiener v. United States, 357 U.S. 349 (1958), the Supreme Court unanimously upheld removal restrictions for government officials on multimember adjudicatory boards. While two laws governing removal restrictions for single heads of agencies exercising executive policymaking and enforcement powers have been held unconstitutional, see Seila Law v. CFPB, 591 U.S. 197 (2020); Collins v. Yellen, 594 U.S. 220 (2021), the Supreme Court has repeatedly stated that it was not overturning the precedent established in Humphrey’s Executor and Wiener for multimember adjudicatory bodies. Instead, the Supreme Court has, in its own words, left that precedent “in place[.]” Seila Law, 591 U.S. at 215 (2020); see id. at 228 (“not revisit[ing] Humphrey’s Executor”); Collins, 594 U.S. at 250–251 (2021) (recognizing that Seila Law did “not revisit [] prior decisions”) (quoting Seila Law, 591 U.S. at 204); see also Morrison v. Olson, 487 U.S. 654, 687 (1988) (in case involving restrictions on removal of an inferior officer, recognizing that Humphrey’s Executor remains good law); see generally Free Enter. Fund v. Public Acct. Oversight Bd., 561 U.S. 477, 483 (2010) (in case involving multimember board, declining to “reexamine” Humphrey’s Executor); id. at 501 (“[W]e do not * * * take issue with for-cause limitations in general[.]”).

The Supreme Court has repeatedly told the courts of appeals to follow extant Supreme Court precedent unless and until that Court itself changes it or overturns it. If a precedent of the Supreme Court “has direct application in a case,” lower courts “‘should follow the case which directly controls,’” leaving to the Supreme Court “‘the prerogative of overruling its own decisions.’” Mallory v. Norfolk S. Ry. Co., 600 U.S. 122, 136 (2023) (quoting Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484 (1989)). That rule governs “even if the lower court thinks the precedent is in tension with ‘some other line of decisions.’” Mallory, 600 U.S. at 136 (quoting Rodriguez de Quijas, 490 U.S. at 484); see also Agostini v. Felton, 521 U.S. 203, 237 (1997) (“We do not acknowledge, and we do not hold, that other courts should conclude our more recent cases have, by implication, overruled an earlier precedent.”).

Circuit precedent compels the same result. See, e.g., National Security Archive v