Labor & Employment Law Daily Wrap Up, LABOR—W.D. Wash.: Trump administration must continue to recognize contract between TSA workers, AFGE, (Jun 3, 2025)

By Todd Harrison, J.D.

A preliminary injunction was granted against Homeland Security Secretary Kristi Noem’s determination that had sought to end the CBA.

Granting a request for a preliminary injunction brought by several union plaintiffs against Homeland Security Secretary Kristi Noem’s attempt to nullify a CBA between the AFGE and TSA, a federal district court in Washington found that the plaintiffs were likely to succeed on the merits of their First and Fifth Amendment and APA claims. It further determined that the actions taken by Noem appeared to have been undertaken to punish the AFGE and its members because the AFGE has chosen to push back against the administration’s attacks against federal employment in the courts, and the threadbare justification for terminating the CBA exposed the retaliatory nature of the decision (American Federation of Government Employees, AFL-CIO v. Noem, No. C25-451 MJP (W.D. Wash. June 2, 2025)).

Since 2011, collective bargaining and voluntary union membership have been fixtures of Transportation Security Officer (TSO) employment. Most recently, in 2024, the TSA and the AFGE entered into a new collective bargaining agreement for a term of seven years.

Noem determination. Contrary to the prior findings of the TSA Administrator and the express terms of the 2024 CBA, Secretary of the Department of Homeland Security Kristi Noem issued a determination on February 27, 2025, barring TSOs from engaging in collective bargaining and rescinding the 2024 CBA (the Noem Determination).

According to the Noem Determination, the AFGE solely benefited from the CBA at the expense of TSOs, impeded Congressional intent of a flexible workforce, and failed to serve the TSA’s mission of keeping Americans safe. Unlike prior determinations that had relied on extensive review and robust decision making, Noem supported her decision by citing to various executive orders issued by the Trump administration that disapproved of the unionization of federal employees.

Preliminary injunction. Challenging the Noem Determination, the plaintiffs contend that it violates the APA, constitutes First Amendment retaliation, and violates the Fifth Amendment by failing to accord the AFGE and its members with any due process. Here, they sought a preliminary injunction to stop the enforcement of the Noem Determination and to ensure that the 2024 CBA remains in place.

Jurisdiction. First, the government argued that the court lacked jurisdiction over this matter because Congress has committed this kind of dispute to resolution before the Federal Labor Relations Authority (FLRA).

Thunder Basin preclusion. According to the government, the court lacked jurisdiction based on the preclusion factors set forth in Thunder Basin Coal Co. v. Reich, 510 U.S. 200 (1994). The court did not agree.

The first Thunder Basin consideration—whether precluding jurisdiction would foreclose all meaningful judicial review—weighed in favor of the court’s jurisdiction. Determinations issued in 2011 and 2022, as well as the Noem Determination, expressly barred FLRA review in the first instance, observed the court.

As to the second Thunder Basin consideration—whether the claim is wholly collateral to the statute’s review provisions—the court found that this too weighed in favor of its jurisdiction, noting that the claims are collateral to and far afield of the FLRA’s core agency review. Nothing about the plaintiffs’ challenge implicated negotiability or unfair labor practices. Rather, it challenges the legality of Noem’s decision to rescind a fully-bargained-for CBA before its term has expired, explained the court.

With regard to the final Thunder Basin consideration—whether the claim is outside the agency’s expertise—the court determined that this also favored a finding of no claim preclusion because there is no apparent expertise in the FLRA to determine whether a recission decision violates the APA or the constitution.

APA and jurisdiction. Turning to the government’s argument that the APA barred the plaintiffs’ claims because they are essentially breach of contract claims, the court was again unpersuaded, observing that the plaintiffs had correctly noted that the CBA was not a contract over which the Tucker Act conferred jurisdiction.

“Here, the CBA is not a money-mandating agreement—it merely sets forth various agreements about the terms of employment, bargaining rights, and union representation rights,” said the court.

APA and reviewability. Next, the government argued that the Noem Determination is not reviewable under the APA because it is “committed to agency discretion by law” and therefore exempt under 5 U.S.C. § 701(a)(2). The court was not moved.

Agreeing with the plaintiffs that the 2024 CBA is a “self-imposed restriction on agency discretion,” the court found that the CBA provided a meaningful standard by which the court could review Noem’s exercise of discretion. Further, while the CBA is not a regulation, it has the same force of one, as it is a statement of policy and a practice, which the Ninth Circuit has found sufficient to form a legal standard for review, said the court.

Likelihood of success. Turning to the likelihood of success of the plaintiffs’ claims, the court began with the two APA claims. The first asserted that the Noem Determination was arbitrary and capricious, and the second asserted that it was contrary to law.

Arbitrary and capricious. As to the claim that the Noem Determination was arbitrary and capricious, the court agreed that the determination failed to set forth a reasoned explanation for the 180-degree departure from prior DHS/TSA policy embracing collective bargaining for TSOs. Further, the 2024 CBA itself buttresses the 2011 and 2022 determinations that unionized TSOs further the security mission of the TSA.

In contrast, the Noem Determination rejected the prior determinations with little explanation, save for assertions that “[t]hese misplaced directives have solely benefited the American Federation of Government Employees (AFGE) at TSOs’ expense, impeded Congressional intent of a flexible workforce, and failed to serve TSA's critical mission to protect the transportation system and keep Americans safe.”

At no point does the Noem Determination explain why collective bargaining has threatened the safety of the transportation system, observed the court. Further, it does not explain how the CBA has benefited the AFGE at the TSOs’ expense. In addition, it fails to explain why prior determinations’ conclusions about the merits of the CBA were no longer valid or that circumstances have changed. As such, the court found that the Noem Determination appeared to be arbitrary and capricious, and thus was likely violative of the APA.

Contrary to law. With regard to the plaintiffs’ argument that the Noem Determination is contrary to law because it refuses to comply with self-imposed limitations in violation of 5 U.S.C § 706((2)(A), (C), the plaintiffs asserted that the CBA was to remain in full force and effect for seven years and could only be changed upon mutual written consent of the parties. The court found a likelihood of success on the merits, as it would appear clear that the Noem Determination runs contrary to the express terms of the CBA.

First Amendment retaliation. Directing its attention to the plaintiffs’ First Amendment retaliation claim, the court noted that the government only challenged the question of animus. Here, the court found strong evidence that the Noem Determination came from the Trump administration’s dislike for the AFGE as a union pushing back against its federal employment policies, noting that the Noem Determination attacks the AFGE by name and asserts that it was the sole beneficiary of the CBA, at the expense of its members.

In addition, Noem invoked the Trump administration’s anti-union executive orders as motivating her own determination, including a “fact sheet” identifying the AFGE as having “declared war on President Trump’s agenda.” Further, the Trump administration has treated other unions who have not challenged his actions more favorably, a fact that showed further animus toward the AFGE, said the court. As such, a jury could likely find this sufficient to support this claim, and the court found that it was likely to succeed.

Due process. Finally, the plaintiffs argued that they were denied Fifth Amendment Due Process when Noem rescinded the CBA and all outstanding grievances without notice or process. On this point, the court found that the plaintiffs had reasonably argued that the CBA provides a legitimate entitlement to certain rights in “their continued employment at TSA” and that this conferred a constitutionally protected right. Further, the plaintiffs also identified a right to file grievances, which confers an entitlement to benefits that are more than a unilateral expectation, and that they were not afforded any process before deprivation. Accordingly, they were likely to succeed on the merits of this claim.

Irreparable harm. As to whether the plaintiffs would suffer irreparable harm in the absence of the preliminary injunction, the court answered this question in the affirmative. Without the CBA, AFGE members would lose the protections and benefits afforded by the CBA, while the AFGE would lose union dues and the ability to retain and attract new members. These total harms are more than monetary, said the court, and the loss of pending grievances and arbitrations commenced under the CBA would be irreparable.

Balance of equities, public interest. With regard to the balance of equities and the public interest, the court found that they weighed in favor of an injunction, noting that the Noem Determination affects tens of thousands of TSOs and the union itself, and it implicated core constitutionally-protected rights. “The hardship here clearly falls on AFGE and its TSOs members,” said the court. As such, the court granted the plaintiffs’ motion for a preliminary injunction.

The case is No. C25-451 MJP.

Judge: Pechman, M.

Attorneys: Abigail V. Carter (Bredhoff & Kaiser) for American Federation of Government Employees AFL-CIO. Brian C. Kipnis, U.S. Attorney's Office, for Kristi Noem.

Companies: American Federation of Government Employees AFL-CIO

Cases: Labor UnionsMembers Procedure PublicEmployees RemediesDamages Retaliation WashingtonNews GCNNews