Labor & Employment Law Daily Wrap Up, REMEDIES, DAMAGES—D.D.C.: Section 2 of EO removing federal employee collective bargaining rights preliminary enjoined, (May 1, 2025)

By Kathleen Kapusta, J.D.

“The effect of the Executive Order was substantial: it removed collective bargaining rights from approximately two-thirds of the federal workforce.”

In a written opinion following its April 25 order granting NTEU’s request for a preliminary injunction, a federal court in the District of Columbia found the union made a substantial showing that President Trump’s Executive Order removing collective bargaining rights from approximately two-thirds of the federal workforce “is of unprecedented scope, deprives federal employees and the federal unions of rights that Congress found to be in the public interest, and poses an existential risk to NTEU.” Enjoining Section 2 of the EO in its entirety, the court found the government failed to provide sufficient argument or factual support warranting specific exemptions from the preliminary injunction order (National Treasury Employees Union v. Trump, No. 25-0935 (PLF) (D.D.C. Apr. 28, 2025)).

Section 2 of President Trump’s March 2025 Executive Order, “Exclusions from Federal Labor-Management Relations Programs,” amends a 1979 executive order that excluded various agencies and subdivisions from the Federal Service Labor-Management Statute (FSLMRS), which, among other things, requires federal agencies to collectively bargain “with respect to the conditions of employment affecting such employees.

FSLMRS Section 7103(b). Although the FSLMRS extended collective bargaining rights to many federal employees, it exempted, in Section 7103(a)(3), several agencies from coverage, including the FBI, CIA, and NSA. In Section 7103(b), it granted the President the authority to either exclude or suspend certain agencies or subdivisions from coverage if the President determined 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.”

Section 2. Section 2 of the President’s EO, which determined that many additional designated agencies have as a primary function intelligence, counterintelligence, investigative, or national security work, eliminated collective bargaining for two-thirds of the federal workforce. An OPM guidance issued that same day states that pursuant to the Executive Order and Section 7103(b), “covered agencies and subdivisions are no longer subject to the collective-bargaining requirements” of the FSLMRS and “are no longer required to collectively bargain with federal unions.”

Arguing that the President exceeded his authority when issuing the EO, NTEU sued the President and other defendants and sought to enjoin the defendants, excluding the President, from implementing Section 2.

Jurisdiction. The government, however, argued that the court lacked jurisdiction over the case because Congress created a “special statutory scheme” in the FSLMRS, which precludes the court’s review. Disagreeing, the court explained that the statute’s administrative review scheme “is not available to challenge the Executive Order’s exclusions of the agencies and subdivisions subject to the Executive Order for the simple reason that those agencies and subdivisions have been excluded from the FSLMRS’s coverage by the very Executive Order at issue here.” Because there was no “special statutory scheme” available to NTEU for reviewing its claim, the court found it was not deprived of jurisdiction.

Preliminary injunction factors. Turning to the preliminary injunction factors, and specifically the likelihood of success on the merits, the court noted that the parties’ dispute centers on whether the President exceeded the authority afforded to him in the FSLMRS when he excluded the agencies and subdivisions under Section 7103(b)(1). Citing the D.C. Circuit’s 1989 decision in Am. Fed’n of Gov’t Emps., AFL-CIO v. Reagan, the court noted that it had to first address the “presumption of regularity,” pursuant to which courts presume, in the absence of clear evidence to the contrary, that public officers have properly discharged their official duties.

Presumption of regularity. Finding NTEU rebutted the presumption, the court pointed to the EO’s scope, which covers two-thirds of the federal workplace, and statements in the accompanying Fact Sheet characterizing unions and collective bargaining rights as “dangerous.” This, said the court, demonstrates that the President was either indifferent to, or acted deliberately in contravention of, the purposes of the FSLMRS as it is directly contrary to Congress’s conclusion that “labor organizations and collective bargaining in the civil service are in the public interest.”

NTEU also rebutted the presumption through evidence the White House Fact Sheet reflects retaliatory motive towards certain unions. Indeed, said the court, the Fact Sheet states that “[c]ertain Federal unions have declared war on President Trump’s agenda,” by filing grievances against him and by stating that they would “‘fight[] back’ against Trump.” Rather than bearing any relation to the criteria established by Congress in Section 7103(b)(1), these statements, the court observed, reflect the President’s frustration with the unions’ representational activity and exercise of their First Amendment rights.

The court also found that NTEU rebutted the presumption through evidence the invocation of Section 7103(b)(1) was in furtherance of unrelated policy goals rather than based on the statutory criteria. “On examination,” said the court, “the OPM Guidance and the Executive Order appear to be more about accomplishing the Administration’s goal of substantially changing the nature of the federal workforce.” The guidance lists numerous examples of earlier policy directives by the President and OPM, identifies the difficulties collective bargaining agreements posed to accomplishing those directives, and states that those obstacles are now gone as a result of the EO. Framing the EO is this way, said the court, “is strong evidence that the President’s invocation of Section 7103(b)(1) was to remove the barriers created by the FSLMRS to his unrelated policy objectives.”

Ultra vires. The court next found that NTEU would likely be successful in showing that the EO was ultra vires. To the court, the evidence rebutting the presumption of regularity was a significant reason to believe NTEU would prevail on this claim. The government, for its part, argued that any agency or subdivision that “has a significant, critical national security mission” necessarily will satisfy the criteria in Section 7103(b)(1)(B). As examples, it asserted that the Department of the Treasury is primarily engaged in “national security work” because it “exists to promote economic and productive strength of the United State – a core national security mission”; the IRS, within the Treasury Department, primarily performs “national security work” because it “collect[s] almost all Federal revenues,” of which “America’s military, economic, and productive capacity directly depend...”; and the Department of Energy’s “primary role is setting national energy policy, with obvious national security objectives and implications.”

But even if an agency performs some work implicating national security, that does not mean the entire agency has a primary function of national security, the court stated, finding that the President applied an overly broad interpretation of the term “primary function” or wrote the term entirely out of the statute.

National security and national security work. In addition, the court found the government interpreted “national security” and “national security work” too broadly. It interprets “national security work” as work “directly related to protection and preservation of the military, economic, and productive strength of the United States.” This definition, the government contends, encompasses everything from the collection of taxes to the management of the country’s food supply and distribution. But in support, it cited an FLRA decision that cautioned against applying an overly broad interpretation of “national security.”

Moreover, in Cole v. Young, the U.S. Supreme Court concluded that while the term “national security” was not defined in the law, it was “clear from the statute as a whole that that term was intended to comprehend only those activities of the Government that are directly concerned with the protection of the Nation from internal subversion or foreign aggression, and not those which contribute to the strength of the Nation only through their impact on the general welfare.”

Applying the reasoning of Cole here, the court found the President’s interpretation of “national security” exceeds the scope of the meaning intended by Congress. Accordingly, the court found NTEU is likely to prevail in showing the President applied an overly broad interpretation of “national security” when invoking Section 7103(b)(1), making his Executive Order ultra vires.

Irreparable harm. As to irreparable harm, the court agreed with NTEU that the EO significantly reduces its bargaining power by cutting the number of represented employees by over 65 percent, a harm that is both significant and irreparable. It also agreed that the union would face financial harm from the loss of dues revenue, a harm that threatens its very existence. “In sum” said the court, “NTEU’s loss of bargaining power and the significant financial harm to the union that is both ongoing and can be expected to continue represent irreparable harm warranting preliminary relief.”

Equities and public interest. Regarding the balance of equities and the public interest, the court noted that Congress unequivocally identified collective bargaining rights and federal unions as being “in the public interest” and determined that large portions of the federal workforce should have the right to collectively bargain and be represented by federal unions. By excluding two-thirds of the federal workforce from the FSLMRS, the President’s EO dramatically changes this and the government’s defense of the EO “raises serious concerns about whether the President has exceeded his power,” the court stated.

Nor was the court persuaded by the government’s argument it is in the public interest to ensure that the President can effectively operate “agencies relevant to national security without the constraints of collective bargaining,” and that a preliminary injunction would “displace and frustrate the President’s decision about how to best address issues of national security.” These arguments, the court explained, presuppose that the President’s decisions are in fact “national security” determinations and are not a recasting of decisions related to “the general welfare” as “national security” determinations. Thus, the court found that the balance of the equities and assessment of the public interest also weighed in favor of granting a preliminary injunction.

Scope. Because all of the factors weighed in favor of issuing a preliminary injunction, the court turned to the injunction’s scope. It noted that its conclusions regarding the EO “all speak to the fact that Section 2 of the Executive Order is entirely ultra vires.” Coupled with a preliminary injunction’s purpose of “preserv[ing] the status quo while the district court assesses the merits of a case,” the court found it appropriate to enjoin Section 2 in its entirety.

The case is No. 25-0935 (PLF).

Judge: Friedman, P.

Attorneys: Paras N. Shah, National Treasury Employees Union, for National Treasury Employees Union. Emily Margaret Hall, U.S. Department of Justice, for Donald J. Trump.

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