AFGE v. Trump - Labor Law

FOR PUBLICA TION UNITED ST A TES COUR T OF APPEALS FOR THE NINTH CIRCUIT AMERICAN FEDERA TION OF GOVERNMENT EMP LOYEES, AFL-CIO; NA TIONAL NURSES ORGANIZING COMMITTEE - NA TIONAL NURSES UNITED; SER VICE EMPLOYEES INTERNA TIONAL U NION; NA TIONAL ASSOCIA TION OF GOVERNMENT EMP LOYEES, INC.; NA TIONAL FEDERA TION OF FEDERAL EMPLOYEES, IAM, A FL -CIO; AMERICAN FEDERA TION OF ST A TE, COUNTY & MUNICIP AL EMPLOYEES, AFL-CI O, Plaintiffs - Appe llees, v. DONALD J. TRUMP, in his official capacity as President of the United States; UNITED ST A TES OFFICE OF PERSONNEL MANAGEMENT; UN ITED ST A TES DE P AR TMENT OF AGRICUL TURE; BROOKE ROLLINS, in her of ficial capacity as Secretary of Agriculture; UNITED No. 25-4014 D.C. No. 3:25- cv -03070- JD OPINION

2 A M. F ED ’ N OF G OV ’ T E MPLOYEES V. T RUMP ST A TES DEP AR TMENT OF DEFENSE; PETER HEGSETH, in his offic ial capacity as U.S. Secretary of Defense; UNITED ST A TES DEP AR TMENT OF ENERGY; CHRIS WRIG HT, in his offic ial capacity as Secretary of Ener gy; UNITED ST A TES DEP AR TMENT OF HEAL TH AND HUMAN SER VICES; ROBER T F. KENNEDY, Jr., in his of ficial capacity as Secretary of Health and Human Services; UNITED ST A TES DEP AR TMENT OF HOMELAND SECURITY; KRISTI NOEM, in her of ficial capacity as Secretary of Homeland Security; UNITED ST A TES DEP AR TMENT OF HOUSING AND URBAN DEVELOPMENT; SC OTT TURNER, in his of ficial capacity as Secretary of the U.S. Department of Housing and Urban Development; DOJ - UNITED ST A TES DEP AR TMENT OF JUSTICE; P AMELA BONDI, Attor ney General, in her of fici al capacity as U.S. Attorney General; UNITED ST A TES DEP AR TMENT OF THE INTERIOR; DOUG BURGUM, in his offic ial capacity as Secretary of the Interior; LORI CHA VEZ- DEREMER, in her of fici al capacity

A M. F ED ’ N OF G OV ’ T E MPLOYEES V. T RUMP 3 as Secretary of Labor; MARCO RUBIO, in his of ficial capacities as U.S. Secretary of State and Acting Administrator for the U.S. Agency for International Development; UNITED ST A TES DEP AR TMENT OF TH E TREASUR Y; SCOTT BESSENT, in his official capacity as U.S. Secretary of the Treasury; UNITED ST A TES DEP AR TMENT OF TRANSPOR T A TION; SEAN DUFFY, in his official capac ity as Secretary of Transportation; UNITED ST A TES DEP AR TMENT OF VETERANS AFF AIRS; DOUG COLLINS, in his of ficial capacity as U.S. Secretary of V eterans Affairs; UNITED ST A TES ENVIRONMENT AL P ROTECTION AGENCY; LEE ZELDIN, in his of ficial capacity as Admi nistrator of the U.S. Environmental Protection Agency; UNITED ST A TES GENERAL SER VICES ADMINISTRA TIO N; STEPHEN EHIKIAN, in his of ficial capacity as Acting Administrator of the General Services Administration; NA TIONAL SCIENCE FOUNDA TION; SOCIAL SECURITY ADMINISTRA TION; CHARLES EZELL, in his of ficial capacity as Acting Director of the U.S. Of fice of Personnel

4 A M. F ED ’ N OF G OV ’ T E MPLOYEES V. T RUMP Management; UNITED ST A TES DEP AR TMENT OF ST A TE; UNITED ST A TES AGENCY FOR INTERNA TIO NAL DEVELOPMENT; SETHURAMAN P ANCHANA THAN, in his official capacity as Director of the U.S. National Science Foundation; U.S. INTERNA TIO NAL TRADE COMMISSION; AMY A. KARPEL, in her of fici al capacity as Chair of the U.S. International Trade Commission; LELAND DUDEK, Acting Commissioner of Social Security, in his official capac ity as Acting Commissioner of the Social Security Administration; UNITED ST A TES DEP AR TMENT OF EDUCA TION; LINDA MC MAHON, in her of fici al capacity as Secretary of Education, Defendants - Appellants. Appeal from the United States District Court for the Northern District of California James Donato, District Judge, Presiding Ar gued and Submitted January 12, 2026 Pasadena, California Filed February 26, 2026

A M. F ED ’ N OF G OV ’ T E MPLOYEES V. T RUMP 5 Before: John B. Owens, Bridget S. Bade, and Daniel A. Bress, Circuit Judges. Opinion by Judge Bress; Concurrence by Judge Owens SUMMARY * Preliminary Injunction / Labor Law The panel vacated the district court’s preli minary injunction enjoining President Trump’s Executive Order 14,251, which excludes certain federal age ncies and subdivisions from collective bargaining requirements under the Federal Service Labor-Management Relations Statute (FSLMRS) based on national security concerns. The FSLMRS protec ts the rights of federal employees to join labor unions, but exempts severa l federal agencies from coverage and authorizes the President to excl ude other agencies and subdivisions fr om coverage based on national security considerations. Invoking 5 U.S.C. § 7103(b)(1), the President determined that certain agencies “have as a primary function intelligence, counterintelligence, investigative, or national security work,” and that the FSLMRS “cannot be applied to these agencies a nd agency subdivisions in a manner consistent with n ational security requirements and considerations.” * This summary con stitutes no part of the opin ion of the court. It h as been prepared b y court staff for the conven ience of the reader.

6 A M. F ED ’ N OF G OV ’ T E MPLOYEES V. T RUMP Under Executive Order 14,251, the agencies designated for exclusion include, inter alia, the Departments of State, Justice, and Veterans Affairs, the EPA, nearly all of the Departments of Energy, Defense, and Treasury, and various subdivisions of the Departments of Agriculture, Homeland Security, and Health and Human Services. Plaintiffs, six unions r epresenting roughly 800,000 federal civilian employees, sued the Pr esident and various other federal defendants, alleging that Executive Order 14,251 constituted First Amendment retaliation, as well as other claims. The district court preliminarily enjoined Executive Order 14,251 base d solely on plaintiffs’ First Amendment retaliation claim, finding a serious question as to whether Executive Order 14,251 served to retaliate against the plaintiff unions for filing lawsuits against an d publicly criticizing the current Administration. The panel agreed with the district court that it had jurisdiction over this c ase. Although the government maintained that plaintiffs should have filed these claims before the Federal Labor Relations Authority, the panel explained that it was not “fairly disc ernible” that Congress meant for unions repre senti ng employees excluded from the statutory scheme to non etheless use that scheme to challenge their exclusion. Turning to the merits, the panel concluded that plaintiffs had not demonstrated a likelihood of success or serious questions on the merits of plaintiffs’ retaliation claim. Assuming without deciding that plaintiffs made o ut a prim a facie case of retaliation, the panel held that on this record the government has shown that the President would have taken the same action even in the absence of the protected conduct. Executive Order 14,251 discloses no retaliatory animus on

A M. F ED ’ N OF G OV ’ T E MPLOYEES V. T RUMP 7 its face and instead expresses that the President’s primary concern with union activity was its interference with national security. Accordingly, because Executive Order 14,251 has a legitimate grounding in national security concerns, apart from any retaliatory a nimus, the government on the existing record has shown th at t he President would hav e taken the same actions in the absence of the a sserted retaliatory intent. Because plaintiffs failed to show a likelihood of success on the merits, the panel did not need to consider the remaining preliminary injunction factors — irreparable harm, the balance of equities, and the public interest — but if the panel were to consider th ose factors, the government ha s the edge. Concurring, Judge Owens wrote separately to note that the panel was reviewing a preliminary injunction, which potentially is a distinction with a diff erence. Because the review of a p reliminary injunction is limited to the law applied by the district c ourt and because the fully developed factual record may be materially different from that initially before the district court, the disposition of appeals from most preliminary inj unctions may provide little guidance as to the appropriate disposition on the merits.

8 A M. F ED ’ N OF G OV ’ T E MPLOYEES V. T RUMP COUNSEL Ramya Ravindra n (argued), Lane M. Shadge tt, J. Alexander Rowell, and Abigail V. Carter, Bredhoff & Kaiser PLLC, Washington, D.C.; Catha Worthman and Daniel M. Feinberg, Feinberg Jackson Worthman & Wasow LLP, Berkeley, California; Rushab Sanghvi, Offic e of the General Counsel, American Federation of Government Employees, Washington, D.C.; for Plaintiffs-Appellees. Joshua M. Koppel (argued), Melissa N. Patterson, Tyler J. Becker, Andrew M. Bernie, and Benjamin T. Takemoto, Attorneys; Eric D. McArthur, Deputy Assist ant Attorney General; Brett A. Shumate, Assistant Attorney General; United States Department of Justice, Washington, D.C.; Defendants-Appellants. Asim M. Bhansali, Kate E. Lazarus, and Scott W. Taylor, Kwun Bhansali Lazarus LLP, San Francisco, California; Elena Goldstein, Democracy Forward Foundation, Washington, D.C.; for Amici Curiae Former Senior National Security Officials and Advisors, and Othe r Interested Parties. Nicholas F. Soares, Katheen L. Millian, and Molly Bernstein, Terr is Pravlik & Millian LLP, Washington, D.C., for Amici Curiae Am erican Civil Liberties Union & American Civil Liberties Union of Northern California. Harold C. Becker and Norman L. Eisen, Democracy Defenders Fund, Wash ington, D.C., for Amici Curiae Former Cabinet Secret aries, Agency Heads, and Other Federal Officers and Employees. Barry Winograd, Arbitrator & Mediator, Oakland, California; Matthew W. Finkin, College of Law, University

A M. F ED ’ N OF G OV ’ T E MPLOYEES V. T RUMP 9 of Illinois, Champaign, I llinois; Joshua M. Javits, Arbitrator & Mediator, Washington, D.C.; for Amicus Curiae Nationa l Academy of Arbitrators. Paul Dimick and Mad eleine Demeules, Assist ant Attorneys General; Elizabeth C. Kramer, Solicitor General; Keith Ellison, Minnesota Attorney General; Minnesota Office of the Attorney G eneral, St. Paul, Minnesota; Kristin K. Mayes, Arizona Attorney G eneral, O ffice of the Arizona Attorney General, Phoenix, Arizo na; Rob Bonta, California Attorney General, Office of the California Attorney General, Oakland, California; Phil ip J. Weiser, Colorado Attorney Genera l, Office of the Colorado Attorney General, De nver, Colorado; William Tong, Connecticut Attorney General, Of fice of the Connecticut Attorney General, Hartford, Connecticut; Kathleen Jennings, Delaware Attorney General, Office of the Delaware Attorney General, Wilmington, Delaware; Brian L. Schwalb, District of Colum bia Attorn ey General, Office of th e District of Columbia Attorney General, Washington, D.C.; Anne E. Lopez, Hawai‘i Attorney General, Office of the Hawai‘i Attorney General, Honolulu, Hawai‘i; Kwame Raoul, Illinois Attorne y Ge neral, Office of the Illinois Attorney Ge neral, Chicago, Illinois; Aaron M. Frey, M aine Attorney G eneral, Office of th e Maine Attorney General, Augusta, M aine; Anthony G. Brown, Maryla nd Attorney General, Office of the M aryland Attorney General, Baltimore, Maryland; Andrea J. Campbell, Massachusetts Attorney General, Office of the Massachusetts Attorney General, Boston, Massachusetts; Dana Nessel, Michigan Attorney General, Office of the Michigan Attorney General, Lansing, Michigan; Aaron D. Ford, Nevada Attorney General, Office of the Nevada Attorney G eneral, Carson City, Nevada; Matthew J. Platkin, New Jersey Attorney General, Office of the New Jersey Attorney General,

10 A M. F ED ’ N OF G OV ’ T E MPLOYEES V. T RUMP Trenton, New Jersey; Letitia James, New York Attorney General, Office of the New York Attorney G eneral, New York, New York; Jeff Jackson, North Carolina Attorne y General, Offi ce o f the North Carolina Attorne y General, Raleigh, North Carolina; Dan Rayfield, Oregon Attorney General, Office of the Oregon Attorney Ge neral, S alem, Oregon; Peter F. Neronha, Rhode Island Attorney Genera l, Office of the Rhode Island Attorney General, Providence, Rhode Island; Charity R. Clark, Vermont Attorney General, Office of the Vermont Attorney General, Montpelier, Vermont; Joshua L. Kaul, Wisconsin Attorney General, Office of the Wisconsin Attorney General, Ma dison, Wisconsin; Nicholas W. Brown, Washington Attorney General, Office of the Washington Attorney General, Olympia, Washington; for Amici C uriae Minnesota, Arizona, California, Colorado, Connecticut, Delaware, District of Columbia, H awai’i, Illinois, Maine, Maryland, Massachusetts, Michigan, Nevada, New Jersey, New Yor k, North Carolina, Oregon, Rhode Island, Vermont, Was hington and Wisconsin.

A M. F ED ’ N OF G OV ’ T E MPLOYEES V. T RUMP 11 OPINION BRESS, Circuit Judge: On March 27, 2025, the President signed Executive Order 14,251, invokin g his authority under 5 U.S.C. § 7103(b)(1) to exclude various federal age ncies and subdivisions from collective bar gaining re quirements based on national security considerations. The district court preliminar il y enjoined the Executive Order after concluding that the President issued it to retaliate against federal employee unions, in viol ation of the First Amendment. W e stayed the district court’ s injunction pending appeal. See Am. Fed’n of Go v’ t Emps. v. T rump (AFGE I), 148 F.4th 648 (9th Cir. 2025) (per curiam). Consi stent with the reasoning in our prior stay order, we now vacate th e pr eliminary injunction. I A As part of the Civil Service Reform Act of 1978 (CSRA), Congress enacted the Federal Service Labor- Management Relations Statute (FSLMRS) to “govern labor relations between the e xecutive branch and it s employees.” Am. Fed’n of Gov’ t Em ps. v. T rump, 929 F.3d 748, 752 (D.C. C ir. 2019) [hereinafter AFGE 2019 ]; see also Ohio Adjutant Gen.’ s Dep’ t v. FLRA, 598 U.S. 449, 452 (2023). The FSLMRS is located within Ti tle VII of the CSRA and Chapter 71 of Title 5 of the U.S. Code. See AFGE 2019, 929 F.3d at 752; Pub. L. No. 95-454, § 701, 92 Stat. 1 1 1 1 (1978) (codified at 5 U.S.C. §§ 7101–35). In the FSLMRS, Congress found that “labor or ganizations and collective bar gaining in the civil service

12 A M. F ED ’ N OF G OV ’ T E MPLOYEES V. T RUMP are in the public int erest.” 5 U.S.C. § 7101(a). The FSLMRS therefor e “e xpressly protects the rights of federal employees ‘to form, join, or assist any labor or gani zation, or to refrain from any such activity,’ and imposes on federal agencies and labor orga nizations a duty to barga in collectively in good faith.” Bur eau of Alcohol, T obacco & Fir earms v. FLRA, 464 U.S. 89, 92 (1983) (first quoting 5 U.S.C. § 7102; and then citing 5 U.S.C. § 71 16(a)(5), (b)(5)). The F SLMRS exempts seve ral federal agencies from coverage, including the F BI, the Government Acco untability Of fice, and the CIA. 5 U.S.C. § 7103(a)(3). Importantly for this case, the statute also authorizes the President to exclude other agencies and subdivisions from coverage based on national security considerations. See id. § 7103(b)(1). This portion of the statute reads: The President may issue an o rder excluding any agency or subdi vision thereof from coverage unde r this cha pter if the President determines that— (A) the agency or subd ivision 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. Id.; see also Am. Fed’n o f Gov’ t Emps. v. Reagan, 870 F.2d 723, 725 (D.C. Cir. 1989). Since the F SLMRS was enacted

A M. F ED ’ N OF G OV ’ T E MPLOYEES V. T RUMP 13 in 1978, every President other than President Biden ha s signed executive orders that exclude designated agency subdivisions from the FSLMRS under § 7103(b)(1). See AFGE I, 148 F.4th at 652. On March 27, 2025, President Trump signed Executive Order 14,251 (EO 14,251). Exec. Order No. 14,25 1, 90 Fed. Reg. 14553 (Apr. 3, 2025). Invoking § 7103(b)(1), t he President determined that certain agencies “ have as a primary function intelligence, counterintelligence, investigative, or national security work,” and that the FSLMRS “cannot be applied to th ese agencies and agency subdivisions in a manner consistent with nationa l security requirements and considerations.” Id. § 1. Under EO 14,251, the agencies designate d for exclusion include, inter alia, the Departments of State, Justice, and V eterans Af fairs, the EP A, nearly all of the Departments of Ener gy, Defense, and T r easury, and various subdivisions of the Depa rtments of Agr iculture, Homeland Se curity, and Health and Human S ervices. Id. § 2. The Executive Order exempted from exclusion “local employing offices of any agency poli ce officers, security guards, or fi refighters, provided that this exclusion does not apply to the Bureau of Prisons.” Id. It appears that EO 14,251 is the largest single ef fort to date to exclude agencies and subdivis ions from collective bar gaining on national security grounds. Upon issuing the Executive Order, the White House posted a “Fact S heet” to the White House website. White House, Fact Sheet: Pr esident Donald J. T rump Exempts Agencies with National Security Missions fr om Federal Collective Bar gaining Requir ements (Mar. 27, 2025), https://perma.cc/Y7HR-4W3H. The Fact Sheet emphasized that the President “is taking action to ensure that agencies

14 A M. F ED ’ N OF G OV ’ T E MPLOYEES V. T RUMP vital to national sec urity can execute their missi ons without delay and protect the American p eople.” It d escribed how the various excluded agencies were involved in national security functions relating to national defense, border security, foreign rel ations, ener gy security, cyberse curity, and so on. The Fact Sheet further explained that collective bar gaining agreements and “hostile Federa l unions” were impeding national security, including by hamstringing agencies in their ability to address poor p erformance and employee misconduct. Citing “widely fil[ed]” u nion grievances, the Fact Sheet also stated that “[c]ertain Fede ral unions have declared war on P resident Trump’ s agenda” and that “[t]he lar ge st Federal union describes itself as ‘fighting back’ against T ru mp.” The Fact Sheet further e xpressed that “President T rump supports constructive partnerships with unions who work with him” but “will not tolerate mass obst ruction that jeopardizes his ability to manage agencies with vital national security missions.” The Of fice of Personnel Management (OPM) issued its own guidance on EO 14,251 in a memorandum addressed to the heads of federal departments and agencies. Memorandum from Charles Ezell, Acting Dir., Off. of Pers. Mgmt., to Heads and Acting He ads of Departments and Agencies (Mar. 27, 202 5), https:/ /perma.cc/QH4A-MQ9F (OPM Guidance). The OPM Guidance highlighted provisions of agency collective bargaining agreements (CBAs) that were incons istent with the P resident’ s national security priorities, inc luding provisions that limit ed performance accountability, return to in -person work, and lar ge-scale re ductions in for ce. OPM’ s Guidance explained, for example, that CBAs “often create procedural impediments to separating poor performers,” and that these

A M. F ED ’ N OF G OV ’ T E MPLOYEES V. T RUMP 15 and other CBA requirements interfered with the President’ s national security objectives. B On April 3, 2025, six unions (collectively, AFGE), which represent roughly 800,000 federa l civilian employees, sued the President and various other federal defendants, seeking to invalidate EO 14,251. AFGE asserted that EO 14,251 constituted F irst Amendment retaliation and viewpoint discrimination, exceeded the President’ s authority under § 7103(b)(1) (an ult ra vir es claim), and violated AF GE’ s due process, contract, and equal protection rights. On June 24, 2025, the district court preliminarily enjoined EO 14,251 based solely on AFGE’ s First Amendment retaliation claim, which it viewed as the strongest. The district co urt found that AFGE “de monstrated a serious question” as to whether EO 14,251 served to retaliate against the plaintiff unions for filing lawsuits against and publicly criticizing the cu rrent Administration. The district court relied heavily on what it ch aracterized as the Fact Sheet’ s expression of “a clea r point of vi ew that is hostile to federal labor unions and their First Amendment activities.” While the district court stated that it would not “sit in judgment of the President’ s national security determinations,” it concluded that the Order ’ s invocation of the national security authority in § 7103(b)(1) did not rebut the nexus between EO 14,251 and th e unions’ protected speech. Because AFGE demonstrated a “serious question” going to the merits, and because the balance of the harms and the equities fa vored AFGE, the district court preliminarily enjoined EO 14,251. The United States filed an emer gency motion in this court to stay the district court’ s preliminary injunction. After

16 A M. F ED ’ N OF G OV ’ T E MPLOYEES V. T RUMP granting an administrative stay, we heard oral argument and granted the governme nt’ s motion for a stay pending appeal. See AFGE I, 148 F.4th at 654. W e con cluded that even if AFGE had made out a prima facie claim of retaliation, “on this re cord the government has shown that the President would have taken the same ac tion even in the absence of the protected conduct.” Id. at 654–55 (citing Mt. Healt hy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977)). In our view, t he Executive Order on its face did not express retaliatory animus, but rather conveyed the “President’ s determination that the excluded agencies have primary functions implicating national secu rity and cannot be subjected to the FSLMRS consistent with national security.” Id. at 655. In addition, and assum ing we could look “beyo nd the facial n eutrality of the order” and consider the Fact Sheet, we concluded that “the Fact Sheet conveys an overarching objective of protecting national security thr ough its assessment that collective ba rgaining impedes the functioning of agencies with national security-related responsibilities.” Id. (citation omitted). W e therefore h eld that the Executive Order and Fact Sheet “fairly in dicate that the President would have issued the Order, regardless of [p]laintif fs’ speech, based on the perceived impact of union activities and collective bargaining on the sound operation of agencies and subdivisions with national securi ty -related missions.” Id. Because the government was likely to succeed on the merits of the retaliation claim, and because the balance of the harms and equities fav ored the

A M. F ED ’ N OF G OV ’ T E MPLOYEES V. T RUMP 17 government, we stayed the dist rict court’ s preliminary injunction pending appeal. Id. at 655–56. 1 After full briefing and a second oral argument, w e now consider the government’ s appeal of the preliminary injunction. W e have jurisdiction under 28 U.S.C. § 1292(a)(1). W e review the grant of a preliminary injunction for abuse of discretion but re view underlying legal principles de novo. Mobilize the Message, LLC v. Bonta, 50 F.4th 928, 934 (9th Cir. 2022). A preliminary injunction is “an extraordinary remedy n ever awarded as of right.” W inter v. Nat. Res. Def. C ouncil, Inc., 555 U.S. 7, 2 4 (2008). A plaintiff is entitled to a preliminary injunction if it establishes a likelihood of success on the me rits, irreparable harm in the absence of pr eliminary relief, that the balance of equities tips in it s favor, and that an injunction is in the public interest. See id. at 20. In the Ninth Circuit, a preliminary injunction is also appropriate when a “plaintiff demonstrates... serious questions going to the merits... and the balance of hardships tips sharply in the plaintiff ’ s favor.” All. for the W ild Rockies v. Cottre ll, 632 F.3d 1 127, 1 134–35 (9th Cir. 201 1) (citation omitted). II As an initial matter, we agree with the district court that it had jurisdiction over this case. AFGE’ s claims plainly arise under federal law. See 28 U.S.C. § 1331. But the government maintains that plaintiffs should have filed these 1 Our stay order was consistent with recen t D.C. Circuit decisions stayin g two preliminar y injunctions of Exec utive Order 14,251 in volving u ltra vires claims. S ee Nat’l T reas ury Emps. Union v. T rump, No. 2 5-5157, 2025 WL 1441563 (D.C. Cir. May 16, 2025) [hereinafter NTEU ]; Am. For eign S erv. Ass’n v. T rump, No. 2 5-5184, 2025 WL 1742853 (D.C. Cir. June 20, 2025).

18 A M. F ED ’ N OF G OV ’ T E MPLOYEES V. T RUMP claims before the Federal Labor R elations Authority (FLRA). See 5 U.S.C. § 7105(a)(1) (the FLRA “shall be responsible for carrying out the purpose of this chapter”); see also Axon Enter., Inc. v. FTC, 598 U.S. 175, 185 (2023) (explaining that “[a] special statutory review scheme... may p reclude district courts from exercising jurisdiction over challenges to federal age ncy action”). Although it is true that Congress “intended the [FSLMRS] statutory scheme to b e exclusive with respect to claims within its scope,” AFG E 2019, 929 F.3d at 755, AFGE’ s challenges are b est viewed as outside the statute’ s scope because EO 14,251 has excluded the employees of the listed agencies from coverage under Chapter 71 (i.e., the FSLMRS). In iss uing the Executive Order, the President pursuant to § 7103(b)(1) determined “that C hapter 71 of titl e 5, United States Code, cannot be applied to these agencies and agency subdivisions in a manner consistent with national security requirements an d considera tions.” EO 14,251, § 1 (emphasis added). Th e President thus excluded these agencies “from coverage under this chapter” (agai n meaning Chapter 71 and the F SLMRS). 5 U.S.C. § 7103(b)(1). In these circumstances, it is not “‘fairly discernible’ that Congress precluded district court jurisdiction” over AFGE’ s claims, Elgin v. Dep’ t of T r easury, 567 U.S. 1, 10 (2012) (quoting Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 207 (1994)), i.e., that Congress meant for unions representing employees excluded from the statutory scheme to nonetheless use that scheme to challenge their exclusion. Consistent with this understanding, the FLRA has regularly found that it lacks jurisdiction to hear cases brought by a union aga inst an agency excluded from FSLMRS coverage under § 7103(b)(1). See, e.g., U.S. Att’ys Off. S. D. T ex. v. AFGE L oc. 3966, 57 F.L.R.A. 750, 750

A M. F ED ’ N OF G OV ’ T E MPLOYEES V. T RUMP 19 (2002); Dep’ t of the Nav y v. Navtelcom Unit Loc. No. 1, 6 F.L.R.A. 498, 499 & n.6 (1981); AFGE Loc. 21 18 v. Dep’ t of Ener gy, 2 F.L.R.A. 916, 918 (1980). And by recently filing af firmative litigation aga inst unions in fe deral district c ourts over EO 14,251, th e government itself t ook the apparent position in those cases that district courts have jurisdiction to decide cases involving agencies excluded from Chapter 71 coverage. See Dep’ t of Def. v. AFGE Dist. 10, 792 F. Supp. 3d 71 1, 715–16 (W.D. T ex. 2025); Dep’ t of T r easury v. N TEU Ch. 73, 783 F. S upp. 3d 991, 998 (E.D. Ky. 2025). Although the government is not estopped from taking a dif ferent posi tion now, its prior li tigation conduct underscores that Congre ss’ s int ent to route these particular claims to the FLRA is not fairly discernible. T urning to the merits, we conclude that on thi s record, AFGE has not demonstrated a likelihood of success or serious questions on the merits of it s retaliation claim. “T o bring a First Amendment retaliation claim, the plaintiff must allege that (1) it engaged in constitutionally protected activity; (2) the defendant’ s actions would ‘chill a person of ordinary firmness’ from continuing to engage in the protected activity; and (3) the protected a ctivity was a substantial motivating factor in the defendant’ s c onduct— i.e., that there was a nex us between the defendant’ s actions and an intent to chill speech.” Ariz. Students’ Ass ’n v. Ariz. Bd. of Regents, 824 F.3d 858, 867 (9th Cir. 2016) (quoting O’Brien v. W elty, 818 F.3d 920, 933–34 (9th Cir. 2016)). Upon making a prima facie showing, “the burden shifts to the defendant official to demonstrate that even w ithout the impetus to retaliate he would have taken the action complained of.” Boquist v. Courtney, 32 F.4th 764, 77 7–78 (9th Cir. 2022) (quoting Hartman v. Moor e, 547 U.S. 250, 260 (2006)); see also Mt. Healthy, 429 U.S. at 287. “If there

20 A M. F ED ’ N OF G OV ’ T E MPLOYEES V. T RUMP is a finding that retaliation was not th e but-for cause of the adverse action, the claim fails for l ack of caus al connection between unconstitutional motive a nd re sulting harm, despite proof of some retaliatory animus in the official’ s mind.” Boquist, 32 F.4th at 778 (alterations omitted) (quoting Hartman, 547 U.S. at 260). Assuming without deciding that AFGE has made out a prima fac ie case of retaliation, we conclude, as we did when we staye d the district court’ s injunction pending a ppeal, that “on this re cord the government has shown that the President would have taken the same ac tion even in the absence of the protected conduct.” AFG E I, 148 F.4th at 654–55 (citing Mt. Healthy, 429 U.S. at 287). The district court see mingly did not address this iss ue, but it is an impediment for AFGE on the record as it now stands. EO 14,251 discloses no retaliatory animus on its face. See id. at 655. It instead e xpresses that the President’ s primary—if not only—concern with union activity was its interference with national security, which is a judgment that § 7103(b)(1) at least presumptively entrusts to the Executive. AFGE thus relies heavily on the Fact Sheet. There may be some question about whether it is proper to consider that kind of extrinsic evidence in the face of a neutral Executive Order, particularly when the Pr esident is exercising congressionally delegated national security authority, for which an appreciable measure of d eference is traditional ly afforded. See T rump v. Hawaii, 585 U.S. 667, 685–86, 703–05 (2018); Ziglar v. Abbasi, 582 U.S. 120, 142 (2017); AFGE I, 148 F.4t h at 655.

A M. F ED ’ N OF G OV ’ T E MPLOYEES V. T RUMP 21 But e ven c onsidering the Fact Sheet, matters do not change. As we previously recognized: [E]ven accepting for purposes of argument that certain statements in the Fact S heet reflect a degree of retaliatory animus toward Plaintiffs’ First Amendment activities, the Fact Sheet, taken as a whole, also demonstrates the President’ s focus on national security. The Fact She et first explains that the excluded agencies and subdivisions serve natio nal security in areas including national def ense, border security, foreign relations, ener gy security, pandemic preparedness and response, and cybersecurity. It then states that the FSLMRS allows unions to “obstruct ag ency management,” including by impeding the removal of employee s for “poor p erformance or misconduct,” whic h is contrary to the need for “ a responsive and accountable civil service to protect our na tional security.” The Fact Sheet thus conveys that EO 14,251 advances national security by curtailing union activity that undermines the agile functioning of government offices with national security-related missi ons. In other words, the F act Sheet conveys an overarching objective of protecting national security through its assessment that collective bar gaining impedes the functioning of

22 A M. F ED ’ N OF G OV ’ T E MPLOYEES V. T RUMP agencies with nation al secu rity-related responsibilities. AFGE I, 148 F.4th at 655 (citations omitted). The OPM Guidance on EO 14,251 buttresses this con clusion because it highlights how collective bar gaining has assertedly undermined the P resident’ s ability to overse e the federal workforce, which is essential “to take c are that the law is faithfully executed and to protect America’ s national security.” In short, because EO 14,251 has “a legitimate grounding in national security concerns, quite apart from any” retaliatory animus, T rump, 585 U.S. at 706, the government on the existing record has shown that the President would have taken the same actions in the absence of the asserted retaliatory intent. AFGE focus es on pa rticular lines in the Fact Sheet that we quoted a bove. But the law does not require us to read the Fact Sheet in the worst possible li ght, especially when considered alongside the neutra l Executive Order and OPM Guidance, and when affording the President some measure of defe rence in the national security context. See, e.g., Holder v. Hu manitarian Law Pr oject, 561 U.S. 1, 33–34 (2010). The statements in the Fact Sheet on which AFGE relies do not torpedo th e government’ s “but-for” defense, especially when there is no basis to conclude that collective bar gaining activities that assertedly bear on national security can never inform a § 710 3(b)(1) dete rmination. See 5 U.S.C. § 7103(b)(1)(B) (permitting the President to consider “ the provisions of this chapter,” i.e., the FS LMRS, in relation to “national security requirements and considerations”). On this record, the government has shown not only th at it could have, but also that it would have, iss ued EO 14,251 in the absence of the asserted r etaliatory animus. See T rump, 585

A M. F ED ’ N OF G OV ’ T E MPLOYEES V. T RUMP 23 U.S. at 706 (“It cannot be said that it is impossible to discern a relationship to legitimate state inte rests or that the poli cy is inexplicable by anything but animus.” (quotation marks omitted)). AFGE tries to cast doubt on this conclusion by focusing on those agencies and subdivisions that EO 14,251 exc ludes from the FSLMR S. It argue s that some of the excluded agencies hav e no meaningful role in promoting na tional security and that some police offic ers, security guards, and firefighters at otherwise excluded a gencies are exe mpted from exclusion under EO 14,251, except for Bureau of Prisons (BOP) personnel, who are exclusively represented by AFGE. AFGE asks us to infer discriminatory animus based on how EO 14,251 treats differe nt agencies and subdivisions. Although we express no opinion on plaintif fs’ ultra vires claim, which is not before us, AFGE asks us to read too much into the coverage of EO 14,251. There are various reasons why a Pre sident, whe n exerc ising national security authority under § 7103(b)(1), might include some agencies and subdivisions but not others in an Executive Order like this, and why one might also distinguish between police officers and BOP personne l. Even assuming EO 14,251 is over - or under -inclusive, it does not follow that the Pre sident would only have iss ued this Executive Order becau se of his purported retaliatory animus. W e need not infer the most jaundiced, r etaliatory account of the President’ s actions without greater support in the record. Regardless, even if the nature o f EO 14,251 ’s line-drawing ra ises some in ference of discriminatory animus, there is still substantial indi cia in the record—through the O rder itself, the Fa ct Sheet, and the OPM Guidance—that the President still “would have issued the Order, regardless of Plainti f fs’ speech, based on the

24 A M. F ED ’ N OF G OV ’ T E MPLOYEES V. T RUMP perceived impact of union activities and collec tive bar gaining on the sound operation of age ncies and subdivisions with national security-related missions.” AFGE I, 148 F.4th at 655. Because AFGE “has failed to show the likelihood of success on the merits, we need not consider the remaining three W inter elements.” Gar cia v. Google, Inc., 786 F.3d 733, 740 (9th Cir. 2015) (en banc) (alteration and quotation marks omitt ed) (quoting Ass’n des Eleveurs de C anar ds et d’Oies du Quebec v. H arris, 729 F.3d 937, 944 (9th Cir. 2013)). But even if we were to consider th em, the government has the edge. A preliminary injunction would harm the United States because “[a]ny time a State is enjoined by a court from ef fectuating statutes enacted by representatives of its people, it suf fers a for m of irreparable injury.” T rump v. CASA, Inc., 606 U.S. 831, 861 (2025) (quoting Maryland v. King, 567 U.S. 1301, 1303 (2012) (Roberts, C.J., in chamber s)). That is particularly true here, where the government’ s interest in ensuring the nation’ s security is “an ur gent objective of the highest order.” Humanitarian Law Pr oject, 561 U.S. at 28. Upon concluding, as we have, that the President would have issued EO 14,251 in the absence of the asserted retaliatory animus, the national s ecurity underpinnings of EO 14,251 favor the government. The government’ s supporting declarations, which discuss operations at indi vidual agencies, further buttress this conclusion. It is true that in the absence of a preliminary injunction, AFGE is likely to suffe r some irreparable harm resulting from the loss of collectiv e bar gaining rights. In our earlier grant of a stay pending appeal, we relied on OPM’ s initial instruction to agencies to refrain from terminating CBAs

A M. F ED ’ N OF G OV ’ T E MPLOYEES V. T RUMP 25 pending resolution of litigation concerning EO 14,251. See AFGE I, 148 F.4th at 656. OPM has since changed its guidance, and w e are in formed that age ncies have started to terminate certain CBAs. Although harm cannot overcome a lack of likelihood of success on the merits, t his change in OPM policy means that AFGE has shown more likely harm now than it did before. But despite the change to OPM’ s guidance, it remains the case th at the harm to the unions would likely be mitigated to a fa ir extent by reinstating the terminated agreements if the union plaintiffs were to prevail. Id.; NTEU, 2025 WL 1441563, at *2. And a ny long-term weakened s upport for the unions remains speculative. See AFGE I, 148 F.4th at 656. AFGE must show that this injury is “likely,” not just possible. See W inter, 555 U.S. at 20. Because union membership is voluntary and the status of the unions could be restored if AFGE succeeds, AFGE has not demonstrated that it is likely that “as time passes, the benefits of unionization [will be] lost and the spa rk to or ganiz e [will be] extinguished” before a final decision on the merits can be reached. Small v. A vanti Health Sys., L LC, 661 F.3d 1 180, 1 192 (9th C ir. 2011). “[T]e mporary economic loss alone generally is not a basis for injunctive relief, ” Ar camuzi v. Cont’l Air Lines, Inc., 819 F.2d 935, 938 (9th Cir. 1987), and much of AFGE’ s asserted inj ury could be repaired if AFGE were to prevail. “The final two injunc tion factors—the balan ce o f equities and the publ ic interest—me rge where [the government] is a p arty.” Assurance W ir eless US A, L.P. v. Reynolds, 100 F.4th 1024, 1031 (9th Cir. 2024). And for the reasons we have already explained, on the current rec ord the government’ s asserted interest in national security

26 A M. F ED ’ N OF G OV ’ T E MPLOYEES V. T RUMP outweighs the interests of the plaintiff unions, considering the balance Congress struck in § 7103(b)(1). * * * For the foregoing reasons, the preliminary injunction is V ACA TED. OWENS, Circuit Judge, concurring: I concur fully in the court’ s opinion. I write separately only to note that we are reviewing a preliminary injunction, which potentially is a disti nction with a difference. “The propriety of preliminary relief and resolution of the merits are ... ‘significantly different’ issues.” Parents Involved in Cmty. Sch. v. S eattle Sch. Dist. No. 1, 551 U.S. 701, 721 n.10 (2007) (quoting Univ. of T exas v. Camenisch, 451 U.S. 390, 393 (1981)). “The purpose of such interim equitable relief is not to conclusively determine the r ights of the parties, but to balance the equiti es as the litigation moves forward.” T rump v. Int’l Refugee Assi stance Pr oject, 582 U.S. 571, 580 (2017) (citation omitted). Here, the district court did not address the applicability of Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274 (1977), to the question at hand. “The Mt. Healthy but- for causation inquiry is purely a question of fact.” Eng v. Cooley, 552 F.3d 1062, 1072 (9th Cir. 2009). And based on the preliminary record before us now, I agree that the government likely would prevail on this issue, meaning that the plaintif fs have failed their significant burden. But “[b]ecause our review of a preliminary injunction is limited to ‘the law applie d by the district court and because the fully developed f actual record may be materially different from

A M. F ED ’ N OF G OV ’ T E MPLOYEES V. T RUMP 27 that initially before the district court, our disposition of appeals from most preliminary injunctions may provide little guidance as to the appropriate disposition on the merits.” Marlyn Nutra ceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 876–77 (9th Cir. 2009) (quoting Sports Form, Inc. v. United Pr ess Int’l, Inc., 686 F.2d 750, 753 (9th Cir. 1982)).