Labor & Employment Law Daily Wrap Up, REMEDIES, DAMAGES—D.D.C.: Executive order targeting Perkins Coie struck down as unconstitutional, (May 5, 2025)

By Todd Harrison, J.D.

“The importance of independent lawyers to ensuring the American judicial system’s fair and impartial administration of justice has been recognized in this country since its founding era.”

Executive Order 14230, targeting the law firm of Perkins Coie LLP, is unconstitutional, ruled a federal court in the District of Columbia, granting permanent injunctive relief against enforcement of the directive. The court found the claims were ripe and that the executive order violated the firm’s First Amendment rights due to, among other things, unlawful retaliation and viewpoint discrimination. The court also determined that the order violated the firm’s clients’ right to counsel under the Fifth and Sixth Amendments (Perkins Coie LLP v. U.S. Department of Justice, No. 25-716 (BAH) (D.D.C. May 2, 2025)).

On March 6, 2025, President Trump issued EO 14230 entitled “Addressing Risks from Perkins Coie LLP.” Five days later, the firm took legal action challenging the EO.

Motion to dismiss. First, the court addressed the government’s motion to dismiss, beginning with its description of the statements set out in Section 1 of the EO—descriptions concerning purported racial discrimination and other “egregious” conduct—as “not seriously contested” and “matters of public record.” The court found the government’s description to be inaccurate, as the firm “vigorously contests” Section 1’s allegations of racial discrimination throughout the complaint. Moreover, continued the court, to the extent that certain factual matters alluded to in Section 1 were not contested, the firm did challenge the use of those statements as a basis for the government actions directed in the EO. As such, the government’s defense in this regard fell short on both procedural and legal grounds, said the court.

President’s protected speech? Next, the government discounted Section 1 as mere “preamble” rather than an “operative section,” and sought dismissal of any of the firm’s claims challenging Section 1. This argument suggested to the extent the Section 1 statements amount merely to President Trump’s protected speech, at least that section, if not the full EO, may not be enjoined. The court was not moved.

“The government’s attempt to reframe this case as about governmental speech is subterfuge,” said the court, noting that the firm had at no point sued over the almost past decade wherein President Trump, both as an elected official and a private citizen, had publicly made derogatory statements about the firm. Rather, it was then-former President Trump who opted to unsuccessfully sue the firm.

Further, the government acknowledged that Section 1’s statements were more than mere governmental speech, formed the basis for the EO’s “Purpose,” and amounted to findings by President Trump that guided implementation of the instructions that followed. The court noted that the firm did not seek, nor would the court grant, an injunction to prevent the President from sharing his views. At the same time, continued the court, a plaintiff may challenge the application of state power against the plaintiff, based on statements qualifying as “findings” used to justify an order with which executive-branch agencies must comply.

Justiciability. Turning to the justiciability of the firm’s challenges to Section 2 of the EO—concerning security clearance review—the government contended that the D.C. Circuit’s decision in Lee v. Garland, 120 F.4th 880 (D.C. Cir. 2024), required dismissal of the firm’s claims challenging Section 2. However, the court found that the government’s argument overread Lee and ignored other precedents reaching an opposite conclusion.

Lee. Lee considered whether courts are barred “from considering constitutional challenges to adverse clearance decisions.” The court’s analysis examined the nature of decisions on individual security clearance applications, noting the necessary weighing of intangible qualities such as loyalty to one’s nation. More importantly, for present purposes, Lee did not disturb prior D.C. Circuit holdings making expressly clear that not all security-clearance decisions are immune from judicial review. Further, the court noted that other Supreme Court and D.C. Circuit opinions confirm that judicial review is available for claims that a general discriminatory policy governing security clearances exists.

Here, the court found that judicial review of Section 2 was available for several reasons, including the fact that the firm was not seeking review of any individual security clearance decision, but of a publicly announced general policy governing security clearances for any member of a class of people.

While the president may have the discretion to make substantive decisions on individual security clearances, he may not apply a discriminatory policy to a group of individuals during the process of making such decisions, said the court.

Standing. Next, the court considered whether the firm had standing to challenge Section 3 of the EO—concerning its representation of government contractors. The government argued any claims related to this section should be dismissed on the ground that the firm failed to allege any injury traceable to this section by not specifically alleging being party to any government contract or currently performing work on any government contract. The court was not persuaded.

Whether the firm is directly a signatory to a federal government contract is immaterial if it sufficiently pleads injury-in-fact traceable to Section 3 and redressable by the requested injunctive relief. The firm amply alleged facts to satisfy these standing prerequisites, explained the court, asserting, among other claims, that several clients have terminated or are considering terminating their legal engagements based on the threat of contract termination faced by clients with government contracts.

As to whether the firm had standing to challenge Section 4—concerning DEI initiatives—the government argued that the firm could not trace any alleged injury from the EEOC’s review of the firm to Section 4 because the EEOC is merely doing the job that it has always performed. The court was again unmoved.

“Even assuming the President has the authority the government claims to direct the EEOC to ‘review’ certain industries, no authority is identified by the government—and the Court is aware of none—empowering the President to direct the EEOC to target specific businesses or individuals for an investigation,” said the court.

Ripeness. Turning to the ripeness of the firm’s challenges to Section 5 of the EO—limiting the firm’s access to government officials and buildings—the court was not persuaded by the government’s arguments that any challenges to this section were too speculative, given that the firm could point to clear, tangible allegations of harm already resulting from this section. Accordingly, court rejected the government’s motion to dismiss.

First Amendment retaliation. Moving on to the firm’s motion for summary judgment, the court first found that the EO retaliates against the firm for activities protected by the First Amendment, including political viewpoints and statements favoring diversity and inclusion.

The EO openly acknowledges that the firm engaged in speech and other protected activities protected by the First Amendment, citing the firm’s representation of Hillary Clinton, its involvement in election law proceedings, and its alleged discrimination in hiring and promotion efforts. An associated fact sheet also references the firm’s previous lawsuits against the Trump administration. Each of these four rationales, on their face, implicates First Amendment protected activities, explained the court.

Chilling effect. As to whether the EO takes retaliatory actions sufficient to chill speech, the court found that it had, noting that other law firms targeted by the administration have opted to settle with the administration rather than face the fallout of other EOs.

Causal link. Regarding the final element of a First Amendment retaliation claim, the court found the retaliation was causally linked to the firm’s First Amendment protected activity, noting that the firm’s protected activities were the only reasons provided by the EO itself to justify the actions directed as strong evidence that the EO retaliated against the firm for engaging in those protected activities. As such, the firm was entitled to summary judgment on its First Amendment retaliation claims.

First Amendment associational rights. Next, the court considered whether Section 3 of the EO violated the First Amendment associational rights of the firm and its clients. Answering in the affirmative, the court reiterated that Section 3 amounted to unconstitutional retaliation for engaging in protected activity. Consequently, the government has no legitimate interests in the disclosures compelled by government contractors under Section 3, much less a sufficiently important one to satisfy exacting scrutiny, said the court.

Equal protection. With regard to whether the EO violated the firm’s right to equal protection of the law, the court found that it did. The court was unpersuaded by the government’s argument that the firm was not similarly situated to other potential government contractors that do not engage in “unlawful” DEI practices.

As an initial matter, the court noted that putting the firm in a class of “potential government contractors” was a stretch given that the firm had not pleaded facts to establish that it was a current or prospective government contractor. Further, the government failed to present evidence that the firm had engaged in any practices amounting to unlawful discrimination. The court noted that the record had firmly established that the EO serves no legitimate government interest and was only designed with retaliation in mind.

“Under the Fifth Amendment’s guarantee of equal protection under the law, however, settling personal vendettas by targeting a disliked business or individual for punitive government action is not a legitimate use of the powers of the U.S. government or an American President,” said the court, granting summary judgment on this claim in favor of the firm.

Rights to counsel. Turning to whether the EO violated the Fifth and Sixth Amendment rights to counsel of the firm’s clients, the court found that it did. The EO’s instruction to limit government employees acting in their official capacity from engaging with the firm’s employees undermined the firm’s ability to provide effective assistance of counsel in criminal cases. Similarly, the EO impinges on the right of defendants to choose their representation by requiring any client with a government contract to terminate their relationship with the firm or face the loss of all government contracts. Accordingly, the firm was entitled to summary judgment on these claims.

Due process. Next, the court addressed the firm’s claim that the EO violated, without proper process, the firm’s right to petition the government. The court found that deciding what process was due to the firm was unnecessary, because no process was provided. As such, the firm was entitled to summary judgment on its due process claim.

Vagueness. The court also agreed with the firm that the EO was impermissibly vague in violation of the Fifth Amendment Due Process clause, noting that the EO provided no definition or guidance as to what DEI program described by such terms was considered unlawful by the Trump administration, leaving the firm to guess as to what or is not permissible in the administration’s view.

Permanent injunction. Finally, the court found that the firm had demonstrated that it met all necessary factors for the issuance of permanent injunction against the EO.

The case is No. 25-716 (BAH).

Judge: Howell, B.

Attorneys: Benjamin Hans Diessel (Wiggin and Dana) for Perkins Coie LLP. Douglas C. Dreier, U.S. Attorney's Office, for the U.S. Department of Justice.

Companies: Perkins Coie LLP

MainStory: TopStory RemediesDamages GovernmentContracts Procedure Retaliation IndividualRights AgencyNews WhiteHouseNews DistrictofColumbiaNews GCNNews