IP Law Daily, PATENT NEWS: Union for patent examiners sues after Trump ends collective bargaining, (Sep 4, 2025)

By Jonathan Anderson

The lawsuit alleges that the President’s actions exceed his authority and were retaliatory.

On September 2, 2025, a labor union representing nearly 9,000 professional employees of the USPTO sued the Trump Administration challenging the validity of an executive order that strips them of collective bargaining rights. The lawsuit alleges that the executive order and actions by President Donald Trump and several subordinates exceed lawful authority and violate the First and Fifth amendments. The complaint seeks a declaratory judgment that the executive order is unlawful and null and void, in addition to injunctive relief (National Weather Service Employees Organization v. Trump, No. 1:25-cv-02947 (D.D.C. filed Sept. 2, 2025)).

Background. The Federal Service Labor Management Relations Statute (FSLMR Statute) provides a statutory framework for collective bargaining in the federal civil service. One provision of the law provides that employees may be excluded from coverage based on their agency’s involvement in national security.

On August 28, 2025, Trump issued an executive order exempting six agencies from FSLMR Statute coverage, including the Office of the Commissioner for Patents and subordinate units, which includes nearly 9,000 patent examiners represented by the Patent Office Professional Association. Two offices in the National Oceanic and Atmospheric Administration, represented by the National Weather Service Employees Organization, were also included in the executive order. These agencies had initially not been included in a March executive order that had terminated the collective bargaining rights of three-quarters of federal employees represented by federal sector unions, according to the complaint.

The two labor unions as co-plaintiffs brought a challenge to the executive order and filed suit in the U.S. District Court for the District of Columbia; the case is No. 25-cv-02947.

Ultra vires. The first cause of action alleges that Trump and subordinates acted beyond the scope of their authority. The complaint asserts that the FSLMR Statute permits the president to exclude from coverage an agency or subdivision only if that agency or subdivision has a primary function of intelligence, counterintelligence, investigative, or national security work, and only if the statute cannot be applied to that subdivision in a manner consistent with national security requirements and considerations. Because “national security work” is not a responsibility of the agencies and subdivisions where the subject employees work, much less their “primary function,” the complaint alleges that Trump “clearly exceeded the authority granted to him by Congress in 5 U.S.C. § 7103(b).”

First Amendment. The second cause of action alleges that the executive order retaliates against plaintiffs and their members for protected First Amendment activity. According to the complaint, prior to the issuance of the August executive order, but after the March executive order covering other agencies, the labor unions had filed grievances on various labor issues against the Trump Administration. The complaint alleges that the White House targeted unions that “widely fil[e] grievances to block Trump policies.” The complaint further alleges that the executive order constitutes viewpoint discrimination because it excludes labor organizations that have supported Trump. In addition, the complaint alleges that subordinate defendants infringed on plaintiffs’ First Amendment rights by carrying out the executive orders, terminating plaintiffs’ collective bargaining rights, and abrogating their collective bargaining agreements.

Fifth Amendment. The third cause of action alleges violation of the Fifth Amendment’s guarantee of equal protection of the laws. The complaint alleges that the Trump Administration’s purpose for the executive orders was to “harm a politically unpopular group” while preserving collective bargaining rights for unions that have supported Trump.

Relief sought. The lawsuit seeks a judgment against the defendants declaring that key provisions of the executive order are unlawful and null and avoid. The suit further seeks to enjoin Trump’s subordinates from implementing provisions of the executive order and from continuing to not recognize the plaintiffs as the exclusive representative of the covered employees.

The Case is No. 1:25-cv-02947.

Judge: Friedman, P.

Attorneys: Keith R. Bolek (O’Donoghue & O’Donoghue LLP) for National Weather Service Employees Organization and Patent Office Professional Association.

Companies: National Weather Service Employees Organization; Patent Office Professional Association

News: Patent USPTO