Labor & Employment Law Daily Wrap Up, PROCEDURE—D.D.C.: Unions denied injunctive relief in challenge to federal employee terminations, (Feb 21, 2025)

By Kathleen Kapusta, J.D.

“Federal district judges are duty-bound to decide legal issues based on even-handed application of law and precedent—no matter the identity of the litigants or, regrettably at times, the consequences of their rulings for the average people.”

Denying preliminary injunctive relief to the National Treasury Employees Union (NTEU), and four other unions that represent federal employees in their challenge to executive actions by President Trump that are intended to drastically reduce the federal workforce, a federal court in the District of Columbia found it lacked subject matter jurisdiction to hear their claims. Holding that their claims must instead be brought before the Federal Labor Relations Authority under the Federal Service Labor-Management Relations Statute (FSLMRS), the court explained that the “claims here are brought by a union representing federal employees against their federal employers—thus, they are ‘federal labor-management relations claims.’” And the statute’s scheme is ‘exclusive’ with respect to such claims” (National Treasury Employees Union v. Trump, No. 25-cv-420 (CRC) (D.D.C. Feb. 20, 2025)).

Probationary employees. Shortly after President Trump’s inauguration on January 20, the Office of Personnel Management (OPM) told federal agencies they had four days to identify all probationary employees. The federal government employs around 220,000 probationary employees, which includes those who have served less than a year in a competitive service appointment or less than two years in an excepted service appointment and NTEU alleged that a mass firing of probationary employees was underway.

Fork in the Road. On January 28, OPM sent an email to all federal employees, known as the “Fork in the Road” directive, which presented them with a deferred resignation offer and stated that it could not give “full assurance regarding the certainty of your position or agency” to those employees who chose to stay. According to the White House, when the program closed on February 12, approximately 75,000 employees had resigned.

Executive Order. On February 11, the President issued Executive Order No. 14210, titled “Implementing the President’s ‘Department of Government Efficiency’ Workforce Optimization Initiative,” which, in Section 3(c), directs agency heads to among other things “promptly undertake preparations to initiate large-scale reductions in force (RIFs), consistent with applicable law, and to separate from Federal service temporary employees and reemployed annuitants working in areas that will likely be subject to the RIFs.” According to NTEU, pursuant to this EO, the Consumer Financial Protection Bureau has “fired over 70 term employees” including dues paying NTEU members.

On February 12, the NTEU, along with the National Federation of Federal Employees, the International Association of Machinists and Aerospace Workers, the International Federation of Professional and Technical Engineers, and the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, brought constitutional and statutory challenges to these three executive actions. They argue that these actions violate constitutional separation-of-powers principles “because they undermine Congress’s authority to set and fund the missions of federal agencies” and violate the statute and regulations governing reductions-in-force, including statutorily mandated notice requirements. Each union has dues paying members affected or likely to be affected by the President’s actions. The unions also sought a TRO and preliminary injunction.

Statutory scheme. In finding that it lacked subject matter jurisdiction over the unions’ claim, the court explained that the FSLMRS, which is set forth in the Civil Service Reform Act, governs labor relations between the executive branch and its employees and establishes a scheme of administrative and judicial review. Pursuant to that scheme, the FLRA, the agency charged with adjudicating federal labor disputes, reviews matters including “negotiability” and “unfair labor practice” disputes. Direct review of the FLRA’s decisions is available in the federal appellate courts.

Thunder Basin preclusion. Turning to the government’s argument that the court’s jurisdiction over the unions’ claims was precluded by the FSLMRS, the court noted that pursuant to the U.S. Supreme Court’s 1994 decision in Thunder Basin Coal Co. v. Reich, a claim will be found to fall outside of the scope of a special statutory administrative review scheme only when a finding of preclusion might foreclose all meaningful judicial review; the claim is wholly collateral to the statutory review provisions; and the claim is beyond the expertise of the agency.

Meaningful judicial review. Rather than argue that their claims are not the type generally covered by the FSLMRS scheme, the unions argued that no meaningful judicial review is available to them because they will suffer irremediable financial harm and loss of bargaining power in the interim. This “here-and-now injury,” they contend, prevents the preclusion of their claims under the Supreme Court’s Axon Enterprise, Inc. v. Federal Trade Comm’n decision.

In that case, the plaintiffs challenged enforcement actions by the FTC and SEC on the ground that the ALJs in each proceeding could not “constitutionally exercise governmental authority because of their dual-layer protection from removal.” The core of each plaintiff’s claims, said the court here, was that it was “an illegitimate proceeding, led by an illegitimate decisionmaker.” “Such a harm,” observed the court, “qualified as a ‘here-and-now injury’ that could not be remedied after the fact by a court of appeals, because ‘[a] proceeding that has already happened cannot be undone.’”

But the unions, the court observed, do not argue that the FLRA is unconstitutionally structured or that, in resolving these claims, it would subject them to an illegitimate proceeding. Rather, they claim, as irreparable injuries, that they have suffered the loss of union dues that cannot be recovered for periods during which employees were not represented by them and reputational harm stemming from a loss of bargaining power. But Axon, the court reasoned, “does not stand for the proposition that any irreparable injury suffices to defeat preclusion.”

The unions, however, argued that the relief they seek would be harder to get if they proceed first before the FLRA and thus their injuries fall outside the narrow class of structural constitutional claims that Axon carved out from the Thunder Basin framework. Unpersuaded, the court pointed out that the unions will be able to seek meaningful review through the statutory scheme. As an example, the court explained that if the FLRA finds an unfair labor practice, it can require reinstatement of an employee with backpay. Moreover, even though the unions might not be able to obtain their “preferred form of relief” through the statutory scheme, that does not mean their claims avoid preclusion.

Constitutional challenges. As to the unions’ suggestion their constitutional challenges are not of the type appropriately resolved under the statutory scheme, “absent any challenge to the very FLRA procedures” they wish to circumvent, their constitutional claims do not defeat preclusion, the court stated. Even if the FLRA cannot decide their constitutional claims, “it is of no dispositive significance whether the agency has the authority to rule on constitutional claims so long as the claims ‘can eventually reach ‘an Article III court fully competent to adjudicate’ them.”

Regarding the unions’ contention that the firings at issue are so numerous they will overwhelm the FLRA and foreclose, or at least forestall, any meaningful review, the court acknowledged that district court review of these executive actions might be more expedient. It pointed out, however, that the unions provided no reason why they could not seek relief from the FLRA on behalf of a class of plaintiffs. Moreover, said the court, “a constitutional or statutory holding by a reviewing court of appeals would likely be broadly applicable to other plaintiffs challenging the same set of actions.” Though court review might appear more efficient or convenient, the unions’ preference for that, the court stated, does not insulate their claims from the FSLMRS review scheme.

Collateral claims and agency expertise. Turning to the final two Thunder Basin considerations, the court noted that the unions merely reprised their claim of irremediable harm to argue that their claims are “wholly collateral” to the statutory review scheme. Thus, for the reasons already explained, the court rejected this argument.

As to agency expertise, the court disagreed with the unions’ contention that it is no longer a relevant consideration following the Supreme Court’s 2024 Loper Bright Enterprises v. Raimondo decision. Loper Bright, it explained, did not foreclose all reliance on agency expertise and the Supreme Court did not suggest that this factor was no longer part of the Thunder Basin analysis.

Though the court acknowledged that the unions’ constitutional claims might not lie at the core of the FLRA’s ‘‘specialized expertise in the field of federal labor relations,” it noted that their statutory claims, such as whether the firing of probationary employees qualifies as a RIF, did not appear that far afield from the agency’s usual review. “And although the FLRA may lack expertise on the constitutional claims, the agency could ‘moot the need to resolve the unions’ constitutional claims’ by finding that the President’s actions violated the RIF statute,” the court observed. Thus, finding it lacked subject matter jurisdiction over the claims, the court denied the unions’ motion for a TRO and a preliminary injunction.

The case is No. 25-cv-420 (CRC).

Judge: Cooper, C.

Attorneys: Allison Conrey Giles (Law Offices of Allison Conrey Giles) for National Treasury Employees Union. Carla Markim Siegel, International Association of Machinists and Aerospace Workers, for International Association of Machinists & Aerospace Workers, AFL-CIO. Joshua Barnett Shiffrin (Bredhoff & Kaiser) International Union, United Automobile, Aerospace and Agricultural Implement Workers of America. Abhishek Kambli, U.S. Department of Justice, for Donald J. Trump.

Companies: National Treasury Employees Union; International Association of Machinists & Aerospace Workers, AFL-CIO; International Union, United Automobile, Aerospace and Agricultural Implement Workers of America; National Federation of Federal Employees; International Federation of Professional and Technical Employees, AFL-CIO

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