Labor & Employment Law Daily Wrap Up, LABOR—BARGAINING—9th Cir.: Trump Administration granted stay of injunction barring implementation of Executive Order 14,251, (Aug 4, 2025)

By Ronald Miller, J.D.

The government sought an emergency stay of the district court’s preliminary injunction against Executive Order 14,251, which excludes certain federal agencies and subdivisions from collective bargaining requirements based on asserted national security concerns.

The Trump Administration was entitled to a stay of an injunction that barred implementation of Executive Order 14,251, which excludes certain federal agencies from collective bargaining based on asserted national security concerns, ruled the Ninth Circuit. The appeals court concluded that the government has shown that it is likely to succeed on the merits of the plaintiffs’ First Amendment retaliation claim. The government also established a likelihood that it will suffer irreparable harm absent a stay, because the injunction “ties the government’s hands... in the national security context.” Whatever harm to collective bargaining rights that the plaintiffs will experience due to a stay is mitigated by the direction to agencies to refrain from terminating collective bargaining agreements until litigation has concluded (American Federation of Government Employees, AFL-CIO v. Trump, No. 25-4014 (9th Cir. Aug. 1, 2025)).

Collective bargaining. The Federal Service Labor-Management Relations Statute (FSLMRS) guarantees federal employees the right to join labor unions, requires unions and federal agencies to negotiate in good faith over matters involving the “conditions of employment,” and requires all collective bargaining agreements to include procedures for filing grievances.

Notwithstanding findings by Congress that “labor organizations and collective bargaining in the civil service are in the public interest,” the FSLMRS exempts several federal agencies from coverage, including the Government Accountability Office, the Federal Bureau of Investigation, the Central Intelligence Agency, the National Security Agency, the Tennessee Valley Authority, and the United States Secret Service. The statute also authorizes the President to exclude additional agencies or subdivisions from coverage “if the President determines that—(A) the agency or subdivision has as a primary function intelligence, counterintelligence, investigative, or national security work, and (B) the provisions of this chapter cannot be applied to that agency or subdivision in a manner consistent with national security requirements and considerations.”

Executive order. On March 27, 2025, President Trump issued Executive Order (EO) 14,251, which invoked 5 U.S.C. § 7103(b)(1) to exclude from the FSLMRS over 40 cabinet departments, agencies, and subdivisions. The excluded entities include the Department of State, the Department of Defense, the Department of Justice, the Environmental Protection Agency, the Federal Communications Commission, and subdivisions of the Departments of Treasury, Energy, Agriculture, Homeland Security, Interior, Health and Human Services, and the Social Security Administration.

Suit by unions. On April 3, 2025, six unions representing over a million federal employees, sued the President, the federal departments and agencies subject to EO 14,251. The plaintiffs’ suit claimed that EO 14,251 constituted First Amendment retaliation and viewpoint discrimination, was ultra vires action, violated Fifth Amendment procedural due process, abrogated contractual property rights in violation of the Fifth Amendment, and violated the Equal Protection component of the Fifth Amendment by engaging in arbitrary and irrational classification.

Preliminary injunction. On April 7, 2025, the plaintiffs filed an ex parte motion for a temporary restraining order asking the district court to enjoin the government from implementing EO 14,251. On April 8, 2025, in response to this suit, the Director of OPM advised agencies and subdivisions subject to the order not to terminate any collective bargaining agreements or to take action to decertify any bargaining units until the conclusion of litigation.

On June 24, 2025, the district court granted the plaintiffs’ request for a preliminary injunction, ruling only on the basis of First Amendment retaliation. The court concluded that the plaintiffs “demonstrated a serious question” as to whether the order retaliated against the plaintiffs for filing lawsuits against, and issuing public statements critical of, the current Administration.

With respect to the preliminary injunction factors, the district court concluded that the plaintiffs had shown a likelihood of irreparable harm based on the threat to union operations posed by reductions in allotted dues, the loss of collective bargaining rights, and weakened support for unions. The district court also found that the balance of hardships and the public interest favored the plaintiffs because the government had deferred implementation of aspects of the order and because of the FSLMRS’s general finding that collective bargaining in the civil service is in the public interest.

Request for stay. The government filed emergency motions to stay the preliminary injunction pending appeal in both the Ninth Circuit and the district court. On July 7, 2025, the Ninth Circuit granted the government’s request for an administrative stay pending its consideration of the emergency motion. On July 8, 2025, the district court denied the government’s motion for a stay pending appeal. The appeals court now grants the government’s emergency motion for a stay of the injunction pending appeal.

The appeals court reviewed the government’s request for a stay pending appeal under the following four factors: “(1) whether the stay applicant has made a strong showing that [it] is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.”

First Amendment retaliation. A plaintiff claiming First Amendment retaliation must show “that (1) [it] was engaged in a constitutionally protected activity, (2) the defendant’s actions would chill a person of ordinary firmness from continuing to engage in the protected activity and (3) the protected activity was a substantial or motivating factor in the defendant’s conduct.”

Here, the appeals court concluded that the government has shown that it is likely to succeed on the merits of the retaliation claim. Even assuming that the plaintiffs have made out a prima facie claim of retaliation, the government has shown that the President would have taken the same action even in the absence of the protected conduct. On its face, the order does not express any retaliatory animus. Instead, it conveys the President’s determination that the excluded agencies have primary functions implicating national security and cannot be subjected to the FSLMRS consistent with national security.

A fact sheet issued in conjunction with the Executive Order conveys that EO 14,251 advances national security by curtailing union activity that undermines the agile functioning of government offices with national security-related missions. Thus, the order itself and the fact sheet fairly indicate that the President would have issued the order, regardless of the plaintiffs’ speech, based on the perceived impact of union activities and collective bargaining on the sound operation of agencies and subdivisions with national security-related missions.

Irreparable harm. The government also established a likelihood that it will suffer irreparable harm absent a stay, because the injunction “ties the government’s hands... in the national security context.” Whatever harm to collective bargaining rights that the plaintiffs will experience due to a stay is mitigated by the direction to agencies to refrain from terminating collective bargaining agreements until litigation has concluded.

The case is No. 25-4014.

Judge: Per curiam.

Attorneys: Lane Martin Shadgett (Bredhoff & Kaiser) for American Federation of Government Employees, AFL-CIO, Service Employees International Union, and National Nurses Organizing Committee - National Nurses United. Melissa N. Patterson, U.S. Department of Justice, for Donald J. Trump.

Companies: American Federation of Government Employees, AFL-CIO

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