Reported / Citable
Background
President Trump signed Executive Order 14,251 in early 2025, invoking 5 U.S.C. § 7103(b)(1) — a provision of the Federal Service Labor-Management Relations Statute (FSLMRS) that allows the President to exclude agencies from collective bargaining coverage when their work involves “intelligence, counterintelligence, investigative, or national security” functions. The order designated for exclusion a sweeping list of agencies and subdivisions including most of the Departments of Defense, Energy, and Treasury; the Departments of State, Justice, Veterans Affairs, Education, and Transportation; the EPA; and subdivisions of the Departments of Agriculture, Homeland Security, and Health and Human Services. In total, the order affected approximately 800,000 federal civilian employees.
Six major federal employee unions — including the American Federation of Government Employees and the National Nurses Organizing Committee — filed suit in the Northern District of California, arguing among other things that EO 14,251 was unconstitutional First Amendment retaliation. The unions alleged the President excluded these agencies not for legitimate national security reasons but as punishment for the unions’ lawsuits challenging other Administration actions and their public criticism of the Administration. The district court agreed there was a “serious question” about that retaliation claim and issued a preliminary injunction halting the order. The Administration appealed.
The Court’s Holding
The Ninth Circuit vacated the preliminary injunction in an amended opinion filed June 17, 2026 (originally issued February 26, 2026). The panel agreed with the district court that federal courts have jurisdiction over this dispute — the FSLMRS’s administrative scheme before the Federal Labor Relations Authority does not provide an adequate forum for unions challenging their wholesale exclusion from the statutory scheme itself.
On the merits, however, the panel found the unions failed to show a likelihood of success on their First Amendment retaliation claim. Even assuming the unions made a prima facie case that EO 14,251 was motivated in part by retaliatory animus, the government carried its burden of showing that the President would have issued the same order absent any retaliatory intent. The order’s text expresses concern about the interference of union collective bargaining with national security functions — a facially legitimate rationale under § 7103(b)(1) — and there is no evidence on the face of the order of retaliatory purpose. Where the government can show an independent legitimate reason for its action, a First Amendment retaliation claim fails even if unlawful animus also played a role.
The panel declined to address the remaining preliminary injunction factors — irreparable harm, balance of equities, and public interest — but noted that if it had to consider them, the government would have the edge. Judge Owens concurred separately to emphasize that the panel was reviewing a preliminary injunction record, not a full merits record, and that the outcome might look different after discovery and trial.
Key Takeaways
- The President’s statutory authority under 5 U.S.C. § 7103(b)(1) to exclude agencies from FSLMRS collective bargaining coverage is broad and can be exercised based on a determination that an agency’s “primary function” involves national security work.
- A First Amendment retaliation claim fails — even with a prima facie showing of retaliatory motive — if the government can demonstrate it would have taken the same action for legitimate reasons independent of the protected conduct.
- Courts have jurisdiction to hear union challenges to presidential orders that exclude agencies from the FSLMRS collective bargaining scheme; that kind of structural challenge cannot be channeled through the FSLRA’s administrative processes.
- The amended opinion supersedes the original February 2026 panel opinion and constitutes the mandate of the court; practitioners should use the June 2026 version as the operative authority.
- The decision is a preliminary-injunction ruling, not a final merits adjudication — further proceedings in the district court (including discovery and a trial record) could produce a different outcome on the underlying retaliation claim.
Why It Matters
This case directly affects the workplace rights of hundreds of thousands of federal employees, including many in California’s substantial federal-agency workforce. By vacating the injunction, the Ninth Circuit allows EO 14,251 to take effect, meaning federal employees at the designated agencies lose collective bargaining protections under federal law for the foreseeable future. For California labor practitioners who represent federal employee unions or advise on federal employment law, this decision underscores the breadth of the President’s unilateral authority under the FSLMRS’s national security exemption — and the difficulty of challenging that authority on First Amendment grounds without a smoking-gun record of retaliatory intent.
More broadly, the case sits at the intersection of separation of powers, labor rights, and national security — three areas where the legal landscape has been rapidly shifting. Judge Owens’s concurrence is notable: it is a signal that the preliminary-injunction record may not fully capture what a complete factual record would show, and that the unions may yet be able to mount a stronger case on remand. Employers, employees, and practitioners in the federal sector should track subsequent proceedings in the Northern District of California closely.