“[W]e may review . . . claims on appeal from an FLRA proceeding even if the FLRA [could not address them].”
How later courts described this case
- “[W]e may review . . . claims on appeal from an FLRA proceeding even if the FLRA [could not address them].”
- “Nor is [our review] vitiated by the grant of authority to the President . . . to extend the Act to such other agencies as he ‘may, from time to time, deem necessary in the best interests of national security.’”
- “A contrary conclusion would permit the fourth exception to swallow the rule.”
- “Ordinarily, Page 3 United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT No. 25-5303 September Term, 2025 arguments that parties do not make on appeal are deemed to have been waived.” (collecting cases)
Written by the judges who cited it.
The opinion
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
____________
No. 25-5303 September Term, 2025
1:25-cv-01362-PLF
Filed On: September 25, 2025
Federal Education Association, et al.,
Appellees
v.
Donald J. Trump, in his official capacity as
President of the United States, et al.,
Appellants
BEFORE: Henderson*, Pan**, and Garcia, Circuit Judges
ORDER
Upon consideration of the emergency motion for a stay pending appeal, the
opposition thereto, and the reply, it is
ORDERED that the administrative stay entered on September 2, 2025, be
dissolved. It is
FURTHER ORDERED that the motion for stay be denied. The government
seeks the “extraordinary” relief of a stay pending appeal. Citizens for Resp. & Ethics in
Washington v. FEC, 904 F.3d 1014, 1017 (D.C. Cir. 2018) (per curiam). To secure that
relief, the government must show that it will face “irreparable injury” if the district court’s
order is not stayed while the appeal is pending. Nken v. Holder, 556 U.S. 418, 433–35
(2009). That injury must be “both certain and great,” and “of such imminence that there
is a clear and present need for equitable relief to prevent irreparable harm.” Chaplaincy
of Full Gospel Churches v. England, 454 F.3d 290, 297 (D.C. Cir. 2006) (cleaned up).
The government has not met that burden on the facts of this case. Indeed, it has not
made a meaningful attempt to do so.
I
On March 27, 2025, the President issued an Executive Order excluding
approximately two-thirds of the federal workforce, including all employees of the
* A statement by Circuit Judge Henderson, dissenting from this order, is attached.
** A statement by Circuit Judge Pan, concurring in this order, is attached.
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
____________
No. 25-5303 September Term, 2025
Department of Defense, from collective bargaining protections under the Federal
Service Labor-Management Relations Statute (FSLMRS). See Exec. Order
No. 14,251, 90 Fed. Reg. 14553, 14553–55 (Mar. 27, 2025). The Order invokes the
President’s statutory authority to “issue an order excluding any agency or subdivision
thereof from coverage under” the FSLMRS “if the President determines” both that “the
agency or subdivision has as a primary function . . . national security work” and that “the
provisions of [the FSLMRS] cannot be applied to that agency or subdivision in a manner
consistent with national security requirements and considerations.” 5 U.S.C.
§ 7103(b)(1).
Several groups of plaintiffs separately sued to enjoin enforcement of the Order.
The district court has granted preliminary injunctions in three cases. See Nat’l Treasury
Emps. Union v. Trump, 780 F. Supp. 3d 237, 268–69 (D.D.C. 2025); Am. Foreign Serv.
Ass’n v. Trump, 783 F. Supp. 3d 248, 273 (D.D.C. 2025); Fed. Educ. Ass’n v. Trump,
2025 WL 2355747, at *20 (D.D.C. Aug. 14, 2025). The first concerned several
agencies and subdivisions listed in the Order. Nat’l Treasury Emps. Union, 780 F.
Supp. 3d at 247, 267–69. The second concerned the State Department, which was
also specifically identified in the Order. Am. Foreign Serv. Ass’n v. Trump, 783 F.
Supp. 3d at 256, 273. In both cases, the government sought, and this court granted,
stays pending appeal. See Nat’l Treasury Emps. Union v. Trump, 2025 WL 1441563,
at *1–3 (D.C. Cir. May 16, 2025) (per curiam); Am. Foreign Serv. Ass’n v. Trump,
2025 WL 1742853, at *1–4 (D.C. Cir. June 20, 2025) (per curiam).
The plaintiffs in this third case are three unions that represent employees of the
Department of Defense Education Activity (DoDEA), a subdivision of the Department of
Defense (DoD) that “operates schools for the children of uniformed and civilian DoD
personnel stationed in military bases in the United States and abroad.” Fed. Educ.
Ass’n, 2025 WL 2355747, at *2 (citation omitted). Although the Order excludes the
entire DoD from FSLMRS coverage, the district court’s preliminary injunction prevents
implementation of the Order only as to DoDEA. The government appeals, and it
requests an immediate stay while we consider that appeal.
II
Assuming without deciding that the government is likely to succeed on the
merits, it has not met its burden to separately demonstrate that it will face irreparable
injury. That failure alone dooms its request. See, e.g., KalshiEX LLC v. Commodity
Futures Trading Comm’n, 119 F.4th 58, 64 (D.C. Cir. 2024) (“[A] showing of irreparable
harm is a necessary prerequisite for a stay.”); Ruckelshaus v. Monsanto Co., 463 U.S.
1315, 1317 (1983) (Blackmun, J., in chambers) (similar).
Page 2
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
____________
No. 25-5303 September Term, 2025
In its stay motion to this court, the government devotes just one paragraph to
articulating its irreparable injury. See Mot. 25. That paragraph summarily asserts that
the district court’s preliminary injunction “inflicts irreparable harm on the President by
impeding his national-security prerogatives” and references this court’s two prior stays
pending appeal. Id. (citing Nat’l Treasury Emps. Union, 2025 WL 1441563, at *2; Am.
Foreign Serv. Ass’n, 2025 WL 1742853, at *3); accord Reply 12–13.
True, courts are appropriately hesitant to question the President’s national
security determinations. True also, there is an interest in maintaining consistency in our
orders, even non-precedential ones.
But here, the government’s allegation of irreparable harm is entirely untethered
from the injunction the government asks us to stay. The preliminary injunction here
operates only as to DoDEA. Accordingly, the government must show that requiring
DoDEA to adhere to the FSLMRS’s collective bargaining requirements during the
pendency of the appeal will harm national security or otherwise irreparably injure the
government. It has not done so.
To start, unlike in both prior appeals, the government cannot assert that the
President determined that applying the FSLMRS to the agency or subdivision covered
by the preliminary injunction would be inconsistent with national security requirements.
If that were true, the government would have a stronger argument that this preliminary
injunction directly undermines the President’s determination. But in arguing the merits,
the government urges that the President made a blanket statutory determination for the
Department of Defense as a whole and was not required to “be more granular” by
making separate determinations for subdivisions like DoDEA. Reply 11. If the
President did not consider DoDEA independently, the Order itself cannot show that an
injunction specific to DoDEA causes irreparable harm.
The government offers nothing to address this deficiency. Its stay motion and
reply brief do not contain a single word on the central question of how the preliminary
injunction as to DoDEA imposes irreparable injury. The reply brief illustrates this flaw:
The injunction imposes irreparable harm, the government argues, because “Plaintiffs
provide no basis to second-guess the President’s determination that applying the
provisions of the FSLMRS to DoD would be inconsistent with national-security
requirements.” Reply 12 (emphasis added). Again, the government is clear elsewhere
that the President made no such determination as to DoDEA, so there is nothing to
which we could defer. Because it was the government’s burden to demonstrate
irreparable harm, it would be entirely appropriate to go no further. See United States ex
rel. Totten v. Bombardier Corp., 380 F.3d 488, 497 (D.C. Cir. 2004) (“Ordinarily,
Page 3
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
____________
No. 25-5303 September Term, 2025
arguments that parties do not make on appeal are deemed to have been waived.”
(collecting cases)).
III
Below, the government did make an argument specific to DoDEA. That fact
serves primarily to underscore the government’s failure to do so on appeal. But even if
we were inclined to overlook the government’s forfeiture, the theory it presented to the
district court is also flawed.
In its request for a stay to the district court, the government attempted to explain
how the injunction as to DoDEA would cause irreparable injury. But that asserted injury
was indirect and relied on a chain of inferences. According to the government, DoDEA
supports DoD’s “overall national security mission” because delivering quality education
to the children of DoD personnel aids DoD’s “recruitment and retention efforts.” D. Ct.
Dkt. 39 at 7–9 (citation omitted). And requiring DoDEA to adhere to the FSLMRS’s
collective bargaining requirements, the government said, would “disrupt[]” its
educational mission, including by requiring more instruction by “substitute teachers” and
by diverting “resources that DoDEA otherwise could devote to the education of
students.” Id. The implication was that the quality of education provided by DoDEA
might, over time, lead current or potential DoD personnel to seek other employment,
which would harm national security.
Setting aside the merits of this chain of reasoning and granting that the harms
would be serious, the theory is still insufficient. We have long required stay applicants
to show that their asserted injuries are imminent, in that those injuries would manifest to
a meaningful extent during the pendency of the appeal. See Chaplaincy of Full Gospel
Churches, 454 F.3d at 297; see also White v. Florida, 458 U.S. 1301, 1302 (1982)
(Powell, J., in chambers) (denying stay application because “[a]lthough [the applicant]
establishe[d] that he may suffer irreparable harm at some point in the future, there [wa]s
no indication that the harm [wa]s imminent”); cf. Clapper v. Amnesty Int’l USA, 568 U.S.
398, 410 (2013) (explaining, in the standing context, that an injury is not “imminent” if it
“relies on a highly attenuated chain of possibilities”). The government did not even
attempt to demonstrate that the indirect effects on national security it posited could
meet that standard, and it is far from self-evident that they would. Given all of
that—and the fact that the government does not so much as mention this argument on
appeal—we cannot conclude that the government has met its burden.1
1
By contrast, it arguably is self-evident that, for example, some State Department
employees’ everyday activities—including “diplomatic negotiations” and the submission
of “reports . . . to Washington”—directly impact “national security.” Am. Foreign Serv.
Page 4
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
____________
No. 25-5303 September Term, 2025
* * *
The government, like other litigants, may not simply assume that this court will
leap to intervene on its behalf based on generalized assertions of injury. Stays pending
appeal are a rare form of emergency relief reserved for true emergencies. And it is not
enough that the government “stamp[s] the word ‘EMERGENCY’ on the front cover of its
stay application.” Labrador v. Poe, 144 S. Ct. 921, 926 n.3 (2024) (Gorsuch, J.,
concurring in the grant of stay). In every case, the government must explain why the
specific order from which it seeks relief imposes certain, great, and imminent injury
while the appeal is pending. See Citizens for Resp. & Ethics in Washington, 904 F.3d
at 1019. It did not do so here.
Per Curiam
FOR THE COURT:
Clifton B. Cislak, Clerk
BY: /s/
Selena R. Gancasz
Deputy Clerk
Ass’n, 2025 WL 1742853, at *3 (quoting Faruki v. Rogers, 349 F. Supp. 723, 730
(D.D.C. 1972)).
Page 5
PAN, Circuit Judge, concurring:
The Federal Service Labor-Management Relations Statute
(FSLMRS) guarantees the benefits of union representation and
collective bargaining to federal civil servants. 5 U.S.C.
§§ 7101–7135. On March 27, 2025, the President issued
Executive Order 14,251, which excludes numerous agencies
and subdivisions from the purview of the FSLMRS. See Exec.
Order No. 14,251, 90 Fed. Reg. 14553 (Mar. 27, 2025). Three
Unions that represent employees of the Department of Defense
Education Activity (DoDEA) sued the government in district
court to challenge the legality of the Executive Order. The
district court entered a preliminary injunction barring the
government from implementing the Executive Order insofar as
it excludes DoDEA from FSLMRS coverage. The preliminary
injunction allows DoDEA workers to continue enjoying
FSLMRS protections during the pendency of the instant
litigation.
The government appeals the district court’s preliminary-
injunction order and now moves for a stay of the injunction
pending the resolution of its appeal. I fully concur with the
court’s order denying the government’s stay motion because
the government fails to meet its burden to show that it will be
irreparably harmed by the injunction. I write separately to
express my view that the government also fails to demonstrate
that it is likely to succeed on the merits of its appeal and that
the equities and the public interest favor a stay. See Nken v.
Holder, 556 U.S. 418, 434 (2009).
On the merits, the Unions are likely to succeed in arguing
that the President exceeded his statutory authority when he
excluded a vast number of government agencies and
subdivisions from FSLMRS coverage without making
mandatory determinations that each agency or subdivision “has
as a primary function intelligence, counterintelligence,
investigative, or national security work,” and that “the
2
provisions of [the FSLMRS] cannot be applied to that agency
or subdivision in a manner consistent with national security
requirements and considerations.” 5 U.S.C. § 7103(b)(1).
Although the statute allows exclusions only for national-
security-related reasons, the district court found that the
Executive Order likely did not rely on such reasons and instead
imposed broad exemptions motivated by anti-union animus
and policy goals that have nothing to do with the statutory
criteria. See FEA v. Trump, No. 25-cv-1362, 2025 WL
2355747, at *9 (D.D.C. Aug. 14, 2025). In addition, the
Executive Order appears to add a new basis for coverage
exclusions that Congress did not include in the statute. See 90
Fed. Reg. at 14555 (excluding “any other agency or
subdivision [within a Cabinet department] that has information
resources management duties as the agency or subdivision’s
primary duty”). The Executive Order therefore is likely ultra
vires.
Moreover, the equities and the public interest also weigh
in favor of the Unions. The district court found that the Unions
have been irreparably harmed by the Executive Order because
it has caused the government to “discontinue[] negotiations
over successive collective bargaining agreements,” to “stop[]
engaging in arbitral proceedings on various grievances,” and to
“disallow[] union representation during employee disciplinary
meetings and investigatory interviews,” among other things.
FEA, 2025 WL 2355747, at *16. In addition, the FSLMRS
emphasizes that the public has an interest in the protection of
public employees’ collective-bargaining rights, 5 U.S.C.
§ 7101, and that interest extends to ensuring that the President
does not unlawfully undermine statutory protections.
The government thus utterly fails to meet its burden to
justify the relief that it seeks.
3
I.
In 1978, Congress enacted the FSLMRS based on its
determination that “the statutory protection of the right of
employees to organize, bargain collectively, and participate
through labor organizations . . . (A) safeguards the public
interest, (B) contributes to the effective conduct of public
business, and (C) facilitates and encourages the amicable
settlements of disputes between employees and their employers
involving conditions of employment.” 5 U.S.C. § 7101(a).
Congress intended the FSLMRS to apply to almost the entire
executive branch, excluding only a handful of agencies that it
identified by name — most notably, the Federal Bureau of
Investigation, the Central Intelligence Agency, the National
Security Agency, and the Secret Service.1 Id. § 7103(a)(3).
Thus, most federal civil servants have enjoyed FSLMRS
collective-bargaining protections for nearly half a century.
Congress granted the President limited authority to exempt
additional agencies and agency subdivisions from the
requirements of the FSLMRS, exclusively for reasons related
to national security. Specifically, 5 U.S.C. § 7103(b)(1) allows
the President to exclude an agency or subdivision from
FSLMRS coverage if, and only if, he makes two mandatory
determinations: “(A) [that] the agency or subdivision has as a
primary function intelligence, counterintelligence,
investigative, or national security work, and (B) [that] the
provisions of [the FSLMRS] cannot be applied to that agency
or subdivision in a manner consistent with national security
requirements and considerations.”
1
The FSLMRS also excludes the Departments of State,
Agriculture, and Commerce, but employees at those agencies enjoy
protection under a materially identical statute, the Foreign Service
Labor-Management Relations Statute. See 22 U.S.C. §§ 4101, 4103.
4
On March 27, 2025, the President issued Executive Order
14,251, which invokes § 7103(b)(1) to exclude a long list of
federal agencies and subdivisions from FSLMRS coverage.
Although the Executive Order parrots the statute’s language, it
does not make any specific findings regarding the “primary
function[s]” of any of the excluded agencies or explain why the
provisions of the FSLMRS cannot be applied to those agencies
without compromising “national security requirements and
considerations.” 5 U.S.C. § 7103(b)(1). The Executive Order
makes the following conclusory statements: “The agencies and
agency subdivisions set forth [below] are hereby determined to
have as a primary function intelligence, counterintelligence,
investigative, or national security work. It is also hereby
determined that [the FSLMRS] cannot be applied to these
agencies and agency subdivisions in a manner consistent with
national security requirements and considerations.” 90 Fed.
Reg. at 14553. The Executive Order then lists six entire
Cabinet departments (with only minor caveats), twenty-six
subdivisions within five other Cabinet departments, seven
entire independent agencies, and every Office of the Chief
Information Officer within any Cabinet department. Id. at
14553–55. Further, it includes, with no apparent statutory
basis, “any other agency or subdivision [within a Cabinet
department] that has information resources management duties
as the agency or subdivision’s primary duty.” Id. at 14554.
The Executive Order’s extremely broad list of agencies and
subdivisions encompasses two-thirds of the federal civil
service, or well over one million federal workers.2
2
The Executive Order excludes those agencies and subdivisions
pursuant to substantively identical provisions in the FSLMRS and
the Foreign Service Labor-Management Relations Statute, see supra
n.1.
5
The Unions have sued the President, the Department of
Defense (DoD), the Office of Personnel Management (OPM),
and the respective heads of those agencies.3 The Unions
contend that the Executive Order violates the Administrative
Procedure Act (APA), the First Amendment, the Fifth
Amendment, and their members’ rights to procedural due
process. They also press an ultra vires claim, alleging that the
President exceeded his statutory authority by (1) excluding
agencies and subdivisions from FSLMRS coverage without
applying the national-security criteria set forth in § 7103(b)(1);
and (2) using the exclusion provision for improper purposes,
such as to retaliate against unions that have challenged the
Administration and to promote policy objectives unrelated to
the statutory requirements.
Focusing on the ultra vires claim, the district court granted
the Unions’ request for a preliminary injunction. The
preliminary injunction bars the DoD, OPM, and their
respective officials from excluding DoDEA from FSLMRS
coverage during the pendency of this case.
II.
The district court concluded that the four preliminary-
injunction factors — the likelihood of success on the merits,
irreparable harm, the balance of equities, and the public interest
3
Other unions — including the National Treasury Employees
Union (NTEU), American Foreign Service Association (AFSA), and
American Federation of Government Employees (AFGE) — have
also filed lawsuits challenging the Executive Order. See Nat’l
Treasury Emps. Union v. Trump, No. 25-5157, 2025 WL 1441563,
at *2 (D.C. Cir. May 16, 2025) (per curiam); Am. Foreign Serv. Ass’n
v. Trump, No. 25-5184, 2025 WL 1742853, at *1 (D.C. Cir. June 20,
2025) (per curiam); Am. Fed’n of Gov’t Emps. v. Trump, 148 F.4th
648, 653 (9th Cir. 2025) (per curiam).
6
— favor the Unions. See FEA, 2025 WL 2355747, at *6, *19.
In seeking a stay of the injunction, the government bears the
burden with respect to the same four factors. See Nken, 556
U.S. at 433–34.
The court’s order properly denies the government’s
request for a stay on the ground that the government fails to
demonstrate irreparable harm. Notably, the government also
fails to meet its burden to show that it is likely to succeed on
the merits of its appeal, and that the equities and the public
interest weigh in its favor.
A. Likelihood of Success on the Merits
The government argues that the Unions likely will not
succeed on the merits of their ultra vires claim because (1) the
district court lacks jurisdiction; (2) the President has
unreviewable discretion to exempt agencies and subdivisions
from the FSLMRS; and (3) even if ultra vires review is
available, the Executive Order passes muster. In my view, all
three arguments likely fail.
1. Jurisdiction
The Executive Order excludes the Unions’ members from
FSLMRS coverage. But the government nevertheless argues
that the district court lacks jurisdiction over this case because
the FSLMRS requires the Unions to litigate their claims before
the Federal Labor Relations Authority (FLRA), and then
appeal any adverse ruling to a U.S. Court of Appeals. See 5
U.S.C. § 7123. The government asserts that this case is
governed by our decision in AFGE v. Trump, 929 F.3d 748,
755 (D.C. Cir. 2019). There, we held that certain plaintiffs
covered by the FSLMRS had to bring their claims to the FLRA
even if the FLRA could not provide complete relief. See id. at
7
755–59. We reasoned that the FLRA offered “much of the
review and relief that [the plaintiffs] sought from the district
court,”4 and although the FLRA lacked jurisdiction over some
of the claims, the plaintiffs could still raise those claims on
appeal. Id. at 757, 759 (“[W]e may review . . . claims on appeal
from an FLRA proceeding even if the FLRA [could not address
them].”).
The government’s theory is unavailing because Congress
likely did not intend to require unions to bring futile claims to
the FLRA. See Axon Enter., Inc. v. FTC, 598 U.S. 175, 186
(2023) (considering “whether the particular claims brought
were ‘of the type Congress intended to be reviewed within this
statutory structure’” (quoting Thunder Basin Coal Co. v. Reich,
510 U.S. 200, 212 (1994))). If the Unions went to the FLRA
in the first instance, the FLRA would almost certainly rely on
the Executive Order to dismiss their case for lack of
jurisdiction, just like it has handled similar cases. See, e.g., 57
F.L.R.A. 750 (Apr. 25, 2002) (dismissing several cases
involving a U.S. Attorney’s Office for lack of jurisdiction
because an executive order had excluded U.S. Attorneys’
Offices from the FSLMRS). Indeed, the district court noted
that the government currently takes the position in an ongoing
DoDEA grievance proceeding that, pursuant to the Executive
Order, the FLRA lacks authority to adjudicate that proceeding
because it concerns DoDEA. See FEA, 2025 WL 2355747, at
*5.
4
Specifically, the AFGE plaintiffs could secure much of their
desired relief by arguing to the FLRA that their employer had
engaged in “bad-faith bargaining in violation of the” FSLMRS,
“refused to bargain over mandatory matters in violation of the”
FSLMRS, or “refuse[d] to bargain over permissive subjects” in the
manner required by the FSLMRS. 929 F.3d at 757.
8
Moreover, even if the FLRA had jurisdiction over the
Unions, the FSLMRS likely does not empower the FLRA to
award relief for the claims that the Unions advance against the
Executive Order: The Unions bring ultra vires, APA, and
constitutional claims, but the FLRA generally hears only
traditional labor-management disputes. See 5 U.S.C.
§ 7105(a)(2) (delineating the limited powers and duties of the
FLRA). The government offers no authority suggesting that
the FLRA can adjudicate ultra vires, APA, or constitutional
challenges to an executive order, nor that the FLRA has the
power to grant meaningful relief from the operation of an
executive order. AFGE is thus distinguishable because the
AFGE plaintiffs could receive from the FLRA “much of the . . .
relief that they sought from the district court,” 929 F.3d at 757,
but here, it appears that the FLRA cannot grant any effective
relief to the Unions at all.
Under the circumstances, it is unlikely that Congress
intended the FSLMRS’s statutory-review scheme to reach
standalone claims challenging an executive order’s legality.
See Axon Enter., 598 U.S. at 186 (“The ultimate question is
how best to understand what Congress has done — whether the
statutory review scheme, though exclusive where it applies,
reaches the claim in question.”).
2. Availability of Ultra Vires Review
The government argues that the FSLMRS precludes any
ultra vires review because the decision to exempt agencies and
subdivisions from collective-bargaining requirements is
committed “to the discretion of the President.” Mot. 14
(quoting AFSA, 2025 WL 1742853, at *2); accord Dalton v.
Specter, 511 U.S. 462, 474 (1994). The government is likely
incorrect.
9
As an initial matter, precedent suggests that even
discretionary presidential actions are subject to ultra vires
review. See, e.g., Am. Forest Res. Council v. United States, 77
F.4th 787, 797 (D.C. Cir. 2023) (explaining that we can review
ultra vires claims challenging national-monument designations
“notwithstanding the broad discretion the Antiquities Act vests
in the President”); Mass. Lobstermen’s Ass’n v. Raimondo, 141
S. Ct. 979, 980–81 (2021) (mem.) (Roberts, C.J., respecting the
denial of certiorari) (indicating that courts can review ultra
vires Antiquities Act claims even though “[t]he Act vests
significant discretion in the President”). Thus, the
government’s invocation of the President’s discretion is not
dispositive.
In any event, the statute at issue here does not confer
absolute discretion on the President such that courts cannot
discern the limits of his authority. We have held that “[s]o long
as a statutory provision plainly delineates the outer limits of
agency authority and Congress has not expressly precluded
judicial review, the provision may be susceptible to review for
ultra vires acts that clearly violate its terms.” Nat’l Ass’n of
Postal Supervisors v. USPS, 26 F.4th 960, 971 (D.C. Cir.
2022). Section 7103(b)(1) fits that description. It provides in
full:
The President may issue an order excluding any
agency or subdivision thereof from coverage
under [the FSLMRS] if the President
determines that — (A) the agency or
subdivision has as a primary function
intelligence, counterintelligence, investigative,
or national security work, and (B) the
provisions of [the FSLMRS] cannot be applied
to that agency or subdivision in a manner
10
consistent with national security requirements
and considerations.
5 U.S.C. § 7103(b)(1). While § 7103(b)(1) allows the President
to “determine[] that” its requirements are met, it specifies the
findings that the President must make in order to exclude any
agency or subdivision from FSLMRS coverage. Id. To order
an exclusion, the President must “determine[]” that the
excluded agency or subdivision has a certain “primary
function” and that the FSLMRS’s collective-bargaining
provisions “cannot be applied to that agency or subdivision”
consistent with “national security requirements and
considerations.” Id. Those requirements cabin the President’s
discretion and delineate the outer bounds of his authority,
thereby readily enabling ultra vires review.5
The government cites AFGE v. Reagan for the proposition
that a court cannot require the President to explain the basis for
§ 7103(b)(1) determinations. See 870 F.2d 723, 727 (D.C. Cir.
5
A prior panel that considered a motion to stay a preliminary
injunction in the AFSA case did not hold to the contrary. See 2025
WL 1742853, at *3. The AFSA panel “assume[d] without deciding
that a form of review [was] appropriate” when considering a
materially identical statutory provision governing the Foreign
Service. Id. (assessing 22 U.S.C. § 4103(b)). To the extent the AFSA
panel made statements suggesting that the President has absolute
discretion to exempt agencies or subdivisions from collective-
bargaining requirements, that was dictum that did not address the
criteria that the President must apply when making such exemptions.
See id. (“Here, the statute commits the relevant decision to the
President’s discretion.”). The AFSA panel’s statements about the
President’s discretion do not bind us; AFSA is a nonprecedential
order, and even if it were precedential, “[b]inding circuit law comes
only from the holdings of a prior panel, not from its dicta.” Gersman
v. Grp. Health Ass’n, 975 F.2d 886, 897 (D.C. Cir. 1992).
11
1989). But in that case, we “deem[ed] the familiar presumption
of regularity decisive.” Id. Reagan does not help the
government here because the district court specifically found
that the presumption of regularity does not apply. The district
court reasoned:
(1) the Executive Order and the
Administration’s surrounding statements are at
odds with Congress’s findings in the FSLMRS;
(2) the White House Fact Sheet [that
accompanied the Executive Order] reflects
retaliatory motive [against unions]; and (3) the
Administration’s guidance related to the
Executive Order — specifically, the OPM
Guidance — suggests that the invocation of
Section 7103(b)(1) was in furtherance of
unrelated policy goals rather than based on the
statutory criteria.
FEA, 2025 WL 2355747, at *9. Because record evidence
supports the district court’s presumption-of-regularity
findings, they are unlikely to be clearly erroneous. See Gov’t
of Guam v. Guerrero, 11 F.4th 1052, 1055 (9th Cir. 2021)
(“[W]e review the district court’s determination that [the
government] is entitled to the presumption of regularity for
clear error as a mixed question of law and fact where the nature
of our inquiry is essentially factual.”). Moreover, Reagan
addressed a limited executive order that excluded eight
narrowly defined subdivisions within the Drug Enforcement
Administration and the U.S. Marshals Service. See 870 F.2d at
726 (assessing Exec. Order 12,559, 51 Fed. Reg. 18761 (May
20, 1986)). Here, the Executive Order, which strips two-thirds
of civil-service workers of their statutory collective-bargaining
protections, is a poor fit for a presumption of “regularity.”
12
3. Ultra Vires Review
Although an ultra vires claim is “essentially a Hail Mary
pass,” NRC v. Texas, 605 U.S. 665, 681 (2025) (citation
omitted), it provides a critical backstop when “there is no other
means . . . to protect and enforce [a statutory] right,” Leedom
v. Kyne, 358 U.S. 184, 190 (1958). The modern doctrine arose
from a recognition that “the absence of jurisdiction of the
federal courts” over a claim that a government official clearly
violated a statute “meant a sacrifice or obliteration of a right
which Congress had created.” Id. (quoting Switchmen’s Union
of N. Am. v. Nat’l Mediation Bd., 320 U.S. 297, 300 (1943)).
Ultra vires claims thus constitute a crucial safety net, ensuring
that courts can fall back on their “general jurisdiction” to
safeguard rights that Congress “intended . . . to be enforced”
when other types of legal claims do not fit the facts. Id. at 190–
91 (citations omitted).
Ultra vires review can play a particularly important role in
addressing situations where the President has grossly exceeded
the bounds of his statutory authority, given that other types of
claims — most notably, APA claims, see Franklin v.
Massachusetts, 505 U.S. 788, 801 (1992) — cannot directly
reach the President’s actions. In the absence of presidential
ultra vires review, any “statute permitting the President in his
sole discretion to” take a given type of action could
“transform[] into a [source of] power without any discernible
limit.” Mass. Lobstermen’s Ass’n, 141 S. Ct. at 981 (Roberts,
C.J., respecting the denial of certiorari). Such a scenario would
“implicate[] separation of powers concerns that resonate with
the constitutional claims” against the President that the
13
Supreme Court recognized as justiciable in Franklin. Murphy
Co. v. Biden, 65 F.4th 1122, 1129 (9th Cir. 2023).6
In conducting ultra vires review, a court must determine
whether a government official has acted “plainly in excess of
[his] delegated powers and contrary to a specific prohibition in
the statute that is clear and mandatory.” Global Health Council
v. Trump, No. 25-5097, 2025 WL 2480618, at *12 (D.C. Cir.
Aug. 28, 2025) (cleaned up). Although meritorious ultra vires
claims are rare, we have ruled in favor of plaintiffs alleging
ultra vires government conduct when the challenged action is
based on unexplained and obvious deviations from statutory
text, see Nat’l Ass’n of Postal Supervisors, 26 F.4th at 973–74,
and when the government’s interpretation of its statutory
authority would “lead[] to an absurd result,” Aid Ass’n for
Lutherans v. USPS, 321 F.3d 1166, 1176 (D.C. Cir. 2003).
Moreover, a showing that the government has attempted to
enlarge its authority in bad faith can bolster an ultra vires
claim. Cf. Barwood, Inc. v. District of Columbia, 202 F.3d 290,
294 (D.C. Cir. 2000).
Against that backdrop, the Executive Order’s alleged
infirmities go well beyond the “garden-variety error[] of law or
fact” that cannot be reviewed as ultra vires. Fed. Express
Corp. v. U.S. Dep’t of Com., 39 F.4th 756, 764 (D.C. Cir. 2022)
(cleaned up). Indeed, because this case focuses on a
presidential determination, there may be “no other means . . .
6
The district court granted the Unions’ request to enjoin the DoD,
OPM, and their officials, rather than the President himself. ECF
No. 22 (Plaintiffs’ Motion for a Preliminary Injunction). The Unions
and district court took this approach because “courts do not have
jurisdiction to enjoin [the President].” Newdon v. Roberts, 603 F.3d
1002, 1013 (D.C. Cir. 2010). Rather, courts can enforce a
presidential ultra vires holding by enjoining agencies and their
officials from implementing the President’s unlawful order.
14
to protect and enforce [a statutory] right.” Leedom, 358 U.S.
at 190 (citation omitted). And the district court found it likely
that the Executive Order excludes two-thirds of the federal civil
service from statutory protections for reasons unrelated to
national security, thus grossly exceeding the President’s
statutory power under § 7103(b)(1). Based on the facts found
by the district court, ultra vires review is appropriate to address
the President’s alleged “obliteration of a right which Congress
has given [federal] employees,” id. (cleaned up) — namely,
their right “to engage in collective bargaining with respect to
conditions of employment through representatives chosen by
employees,” 5 U.S.C. § 7102.
The President likely exceeded his authority under
§ 7103(b)(1), which allows him to exclude agencies and
subdivisions from FSLMRS coverage based only on specific,
national-security-related determinations. The Executive Order
provides no indication that the President made the requisite
determinations. The Executive Order does not identify any
agency’s or subdivision’s “primary function” in national
security, much less explain why the “provisions of [the
FSLMRS] cannot be applied to that agency or subdivision in a
manner consistent with national security requirements and
considerations.” 5 U.S.C. § 7103(b)(1). In fact, the Executive
Order’s exclusions seem to contravene § 7103(b)(1)’s
requirements because many of the listed agencies and
subdivisions do not appear to have as “primary function[s]
intelligence, counterintelligence, investigative, or national
security work.” Id.; see also Cole v. Young, 351 U.S. 536, 544
(1956) (defining “national security” as concerning “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”).
15
Such agencies include the Department of Veterans Affairs,7 the
Environmental Protection Agency,8 the Federal
9
Communications Commission, the General Services
Administration,10 and the U.S. International Trade
Commission.11 Excluded subdivisions that also likely do not
have the requisite “primary function[s]” include the
Department of Treasury’s Office of Tax Policy,12 the
7
About the Department, U.S. Dep’t of Veterans Affs. (Apr. 9,
2025), https://perma.cc/78YM-VP7W (“Our Mission: To fulfill
President Lincoln’s promise to care for those who have served in our
nation’s military and for their families, caregivers, and survivors.”).
8
Our Mission and What We Do, EPA (July 23, 2025),
https://perma.cc/9L8E-CMQX (“The mission of EPA is to protect
human health and the environment.”).
9
What We Do, FCC, https://perma.cc/6CLC-JLM6 (“The
Federal Communications Commission regulates interstate and
international communications by radio, television, wire, satellite and
cable in all 50 states, the District of Columbia and U.S. territories.”).
10
Our Mission’s Evolution, GSA (Mar. 20, 2024),
https://perma.cc/4ZNV-6C38 (“Today our mission has evolved to
provide stewardship of the way the government uses and provides
real estate, acquisition services, and technology.”).
11
About the USITC, USITC, https://perma.cc/MJ2H-UAF7
(“Mission[:] Investigate and make determinations in proceedings
involving imports claimed to injure a domestic industry or violate
U.S. intellectual property rights; provide independent analysis and
information on tariffs, trade and competitiveness; and maintain the
U.S. tariff schedule.”).
12
Tax Policy, Dep’t of the Treasury, https://perma.cc/Z6NN-
M65Q (“Tax Policy develops and implements tax policies and
programs; reviews regulations and rulings to administer the Internal
Revenue Code, negotiates tax treaties, provides economic and legal
policy analysis for domestic and international tax policy decisions.
It also provides estimates for the President’s budget, fiscal policy
decisions, and cash management decisions.”).
16
Department of Justice’s Civil Rights Division,13 and the
Department of the Interior’s Bureau of Land Management.14
By excluding two-thirds of the federal civil service from
statutory protections without making the required findings, the
Executive Order transforms a circumscribed exception into the
general rule. The Executive Order’s breadth makes it “hard to
imagine a type of [agency or subdivision] that would not
qualify.” City of Los Angeles v. Patel, 576 U.S. 409, 425
(2015). As the Supreme Court explained in interpreting a
different civil-service statute with a national-security
exception, “if Congress intended the term to have such a broad
meaning that all positions in the Government could be said to
be affected with the ‘national security,’ the result would be that
the 1950 Act, though in form but an exception to the general
personnel laws, could be utilized effectively to supersede those
laws.” Cole, 351 U.S. at 547. Cole’s reasoning reflects the
Court’s general disinclination to allow narrow statutory
exceptions to “swallow” broader statutory rules. E.g., EPA v.
Calumet Shreveport Refining, LLC, 145 S. Ct. 1735, 1751
(2025) (“This constraint follows from the function of the
‘nationwide scope or effect’ exception as just that — an
exception. Congress, after all, is unlikely to intend for an
exception to swallow the rule.”); Patel, 576 U.S. at 424–25
(“To classify hotels as pervasively regulated would permit
what has always been a narrow exception to swallow the
13
About the Division, DOJ Civil Rights Div. (June 1, 2023),
https://perma.cc/4J8A-H26T (“The Division enforces federal
statutes prohibiting discrimination on the basis of race, color, sex,
disability, religion, familial status, military status and national
origin.”).
14
Our Mission, DOI BLM, https://perma.cc/R3HN-M2SA (“The
Bureau of Land Management’s mission is to sustain the health,
diversity, and productivity of public lands for the use and enjoyment
of present and future generations.”).
17
rule.”); Flynt v. Ohio, 451 U.S. 619, 622 (1981) (“A contrary
conclusion would permit the fourth exception to swallow the
rule.”).
Here, the Executive Order is likely ultra vires because it
broadly and unlawfully applies the FSLMRS’s exclusion
provision without regard to statutory mandates, in a quest to
use a narrow national-security exception to “swallow” a
general rule that favors union representation. The President
likely does not have unfettered authority to unilaterally
transform the scope of the FSLMRS, while disregarding the
statute’s intended reach, purpose, and mandatory requirements.
See NTEU v. Trump, 780 F. Supp. 3d 237, 254–55 (D.D.C.
2025) (adopted by cross-reference by FEA, 2025 WL 2355747,
at *9) (finding that “the President was indifferent to the
purposes and requirements of the FSLMRS, or acted
deliberately in contravention of them” (cleaned up)).
In addition, the district court made other findings that
buttress its determination that the Executive Order’s exclusions
are unrelated to national security and therefore likely ultra
vires. Although the FSLMRS permits the President to exclude
workers from its protective ambit only for reasons related to
national security, the district court found that there was “clear
evidence” that the White House Fact Sheet reflected
“retaliatory motive towards certain unions”;15 and that
“substantial evidence in the record” showed that the Executive
15
As the district court found, in the Fact Sheet accompanying the
Executive Order, the White House proclaimed that “[c]ertain Federal
unions have declared war on President Trump’s agenda,” including
by “widely filing grievances to block Trump policies.” FEA, 2025
WL 2355747, at *4. The Fact Sheet specifically criticized
Department of Veterans Affairs unions for “fil[ing] 70 national and
local grievances over President Trump’s policies since the
inauguration.” Id.
18
Order’s breadth “was in furtherance of unrelated policy goals
rather than based on the [FSLMRS’s] statutory criteria.”16
NTEU, 780 F. Supp. 3d at 254 (cleaned up) (adopted by cross-
reference by FEA, 2025 WL 2355747, at *9). Those factual
findings lend further support to the district court’s conclusion
that the President acted beyond the narrow, national-security-
related bounds of the exclusion provision, and did so to achieve
improper goals — such as retaliating against unions for
protected activity.17
Finally, it is notable that the Executive Order purports to
expand the scope of § 7103(b)(1) by excluding from FSLMRS
coverage “any other agency or subdivision [within a Cabinet
department] that has information resources management duties
as the agency or subdivision’s primary duty.” 90 Fed. Reg. at
14554. That provision of the Executive Order effectively adds
16
The district court relied on a memorandum released by OPM
(the “OPM Guidance”) that explained how agency heads should
implement the Executive Order. FEA, 2025 WL 2355747, at *4.
That memorandum characterized the Executive Order as a means to
achieve the President’s broader policy “to eliminate waste, bloat, and
insularity within agencies and operate them more efficiently.”
NTEU, 780 F. Supp. 3d at 257 (adopted by cross-reference by FEA,
2025 WL 2355747, at *9). The memorandum comments minimally
on national security and instead focuses on the Administration’s goal
of removing “underperforming employees.” Id.
17
The government contends that we should focus not on the
Executive Order as a whole, but on its inclusion of the DoD
specifically. That approach is likely incorrect for at least two
reasons. First, the FSLMRS provides that “[t]he President may issue
an order excluding any agency or subdivision thereof,” suggesting
that the order itself is the proper unit of review. 5 U.S.C. § 7103(b)
(emphasis added). And second, an agency-by-agency analysis would
require a court, in the first instance, to determine whether specific
agencies meet § 7103(b)(1)’s requirements, even though it appears
that the President himself did not conduct such an analysis.
19
“information resources management” to the list of primary
functions that can justify exempting an agency or subdivision
from the requirements of the FSLMRS. The President’s
enlargement by fiat of the list of primary functions in
§ 7103(b)(1)(a) also is likely ultra vires. Cf. Guedes v. ATF,
920 F.3d 1, 43 (D.C. Cir. 2019) (Henderson, J., concurring in
part and dissenting in part) (“The Rule’s fatal flaw comes from
its ‘adding to’ the statutory language in a way that is — at least
to me — plainly ultra vires.” (citation omitted)).
B. Balance of Equities and Public Interest
The balance of equities and the public interest, which
merge here because the government is a party, see Singh v.
Berger, 56 F.4th 88, 107 (D.C. Cir. 2022), favor the Unions.
The district court found that the Unions suffered irreparable
harm from the Executive Order because it caused the
government to “discontinue[] negotiations over successive
collective bargaining agreements,” to “stop[] engaging in
arbitral proceedings on various grievances,” and to “disallow[]
union representation during employee disciplinary meetings
and investigatory interviews,” among other things. FEA, 2025
WL 2355747, at *16.18 That harm outweighs the government’s
18
This case is thus distinguishable from NTEU, in which a panel
of this court stayed a different injunction against implementation of
the Executive Order. See 2025 WL 1441563, at *3. There, the panel
described the plaintiff union’s asserted harms as “speculative”
because “the Government [had] directed [the relevant] agencies to
refrain from terminating collective-bargaining agreements or
decertifying bargaining units until after the litigation concludes.” Id.
at *1 (emphasis in original); accord AFGE, 148 F.4th at 656
(“Whatever harm to collective bargaining rights that Plaintiffs will
experience due to a stay is mitigated by the direction to agencies to
refrain from terminating collective bargaining agreements until
litigation has concluded.”).
20
asserted national-security interests because the restoration of
FSLMRS protections to DoDEA’s educators and other
employees is unlikely to impede the President’s ability to keep
the nation safe.
In addition, the FSLMRS explicitly recognizes the public
interest in protecting the collective-bargaining rights of federal
employees. 5 U.S.C. § 7101. That supports allowing DoDEA
workers to remain within the FSLMRS’s ambit during the
pendency of this case. And relatedly, the public interest does
not support allowing the Executive Order to undermine
statutory protections for DoDEA employees where the
Executive Order is likely unlawful. See League of Women
Voters of U.S. v. Newby, 838 F.3d 1, 13 (D.C. Cir. 2016)
(“There is a substantial public interest in having [the
government] abide by the federal laws . . . .” (cleaned up)). The
balance of the equities and the public interest therefore support
denying the government’s motion to stay the preliminary
injunction.
III.
Our dissenting colleague asserts that the government will
likely prevail on the merits of its appeal of the preliminary
injunction for three reasons: (1) Ultra vires review is
inappropriate where “the plaintiffs pressed, and the district
court accepted, what is essentially an ordinary statutory-
interpretation argument,” Dissenting Op. 2; (2) the alleged
ultra vires action is not “plain on the record” because the
district court looked to “non-party” agencies and subdivisions
that do not appear to satisfy the statutory national-security-
related requirements, id. at 3 (citation omitted) (emphasis in
original); and (3) “the district court’s decision and reasoning
failed to reflect” the deference due to the Executive in the
21
domain of “foreign policy and national security,” id. at 4
(citation omitted). I respectfully disagree.
First, this case does not present “an ordinary statutory-
interpretation argument.” Dissenting Op. 2. The Unions claim
that the President stripped over one million federal employees
of their statutory collective-bargaining rights without making
the required national-security determinations, and that he did
so for reasons unrelated to the statutory criteria. See supra
section II.A.3. That is not a mere question of “statutory
interpretation” because no plausible reading of the statute
would permit the Executive to exclude a plethora of agencies
from FSLMRS coverage for reasons that have nothing to do
with national security. The wholesale transformation of labor
relations across the entire executive branch, allegedly for
reasons unsupported by any statutory authority, is indeed an
action “so extreme that one may view it as jurisdictional or
nearly so.” Dissenting Op. 3 (quoting Griffith v. FLRA, 842
F.2d 487, 493 (D.C. Cir. 1988)). And because the statute
requires the President to make the exclusion determinations,
and the Unions may not bring an APA claim against the
President, see Franklin, 505 U.S. at 801, there may be “no other
means” besides the Unions’ ultra vires claim “to protect and
enforce [a statutory] right,” Leedom, 358 U.S. at 190.
Second, our dissenting colleague contends that the district
court erred by not focusing on whether the DoD and DoDEA
satisfy the “primary function” requirement and instead looking
to “non-party” agencies and subdivisions that the Executive
Order excludes from FSLMRS coverage. Dissenting Op. 3
(emphasis in original). She concludes that the district court
missed the target when it “determine[d] that the non-party
excluded agencies and subdivisions do not satisfy paragraph
7103(b)(1) and that the order is accordingly ultra vires.” Id.
22
That analysis misunderstands the Unions’ claim and the district
court’s reasoning.
The Unions claim that the entire Executive Order is ultra
vires because the President failed to make any of the required
determinations and instead used the exclusion provision as a
pretext to retaliate against unions and to pursue policy goals
unrelated to the statutory criteria. See supra section II.A.3.
Because the Unions challenge the Executive Order as a whole,
they had no reason to focus specifically on the DoD or DoDEA.
The Unions and the district court pointed out that many “non-
party” agencies and subdivisions excluded by the Executive
Order do not appear to fit the statutory criteria, but only
because that is evidence that the President never made the
required determinations to exclude any agencies and
subdivisions. See id. Thus, the Unions’ ultra vires claim is
“plain on the record” because they allege that there is no
indication, in the Executive Order or otherwise, that the
President actually determined that each excluded agency and
subdivision has a “primary function” related to national
security and that each excluded agency and subdivision could
not be unionized consistent with “national security
requirements and considerations,” 5 U.S.C. § 7103(b)(1). The
President’s alleged exclusion of broad swaths of the executive
branch from the reach of the FSLMRS without making the two
mandatory national-security-related determinations was likely
ultra vires.
Third, our dissenting colleague suggests that the district
court was insufficiently deferential to the Executive because
this case involves matters of “foreign policy and national
security.” Dissenting Op. 4 (citation omitted). Although some
deference is undoubtedly appropriate in that sphere, courts
remain duty-bound to review claims that the President has
abused or exceeded his powers. See Youngstown Sheet & Tube
23
Co. v. Sawyer, 343 U.S. 579, 642 (1952) (Jackson, J.,
concurring) (“[N]o doctrine that the Court could promulgate
would seem to me more sinister and alarming than that a
President whose conduct of foreign affairs is so largely
uncontrolled” that he can invoke his foreign-affairs powers to
“vastly enlarge his mastery over the internal affairs of the
country.”); Cole, 351 U.S. at 545 (“Nor is [our review] vitiated
by the grant of authority to the President . . . to extend the Act
to such other agencies as he ‘may, from time to time, deem
necessary in the best interests of national security.’”); Zweibon
v. Mitchell, 516 F.2d 594, 604–05 (D.C. Cir. 1975) (“Although
the attempt to claim Executive prerogatives or infringe liberty
in the name of security and order may be motivated by the
highest of ideals, the judiciary must remain vigilantly prepared
to fulfill its own responsibility to channel Executive action
within constitutional bounds.” (cleaned up)). Here, we need
not blindly accept the government’s dubious contention that a
subdivision staffed by grade-school educators plays a
prominent role “in support of DoD’s overall national security
mission.” Mot. 24 n.3 (citation omitted). Nor should we fail
to probe the government’s conclusory assertion that the instant
injunction “inflicts irreparable harm on the President by
impeding his national-security prerogatives.” Id. at 25 (citation
omitted). It is the government’s burden to convince us that
restoring union protections to federal employees focused on K–
12 education will make the country less safe. Because the
government fails to meet that burden, I disagree with our
dissenting colleague’s unquestioning acceptance of the
government’s implausible claim of irreparable harm. See
Dissenting Op. 4–5.
Finally, although I cannot join our dissenting colleague in
her analysis of the legal issues before us, I share her concern
that an unprecedented number of emergency motions has
forced this court to prematurely confront novel and
24
controversial issues. See Dissenting Op. 1. Not every
preliminary injunction presents an “emergency,” and this case
is a prime example. The scope of the instant preliminary
injunction is narrow, restoring FSLMRS coverage to only one
DoD subdivision, with a mission that focuses on K–12
education, employing around 14,000 employees. Although the
legal issues are undoubtedly weighty and potentially far-
reaching, it is unclear why the government felt a pressing need
to seek emergency relief at this juncture in this case, when it
could have either sought expedited consideration of the
preliminary-injunction appeal, or litigated the case to its
conclusion in the district court before coming to us with a
complete record after entry of final judgment.
* * *
Because the government fails to carry its burden to justify
a stay of the district court’s preliminary injunction pending
appeal, the court properly denies its request. The government
will likely fail on the merits of its legal claims because the
Executive Order’s exclusion of two-thirds of the federal civil
service from statutory protections, without making the required
determinations and with allegedly improper motives, likely
exceeded the President’s statutory power. Moreover, as
discussed in the court’s order, the government fails to show
irreparable harm because the injunction affects only DoDEA,
an agency subdivision that focuses on the education of the
children of servicemembers and therefore has only an indirect
effect on national security. Finally, the equities and the public
interest also favor the Unions.
KAREN LECRAFT HENDERSON, Circuit Judge, dissenting
statement:
I am becoming increasingly alarmed by our court
being asked to decide novel, and usually controversial,
issues via emergency stay motions. We can produce a
more carefully reasoned but still timely result using the
expedited appeals process. A merits panel could hear
arguments in this case and decide it within a four-week
period. See, e.g., United States v. Trump, 91 F.4th 1173
(D.C. Cir. 2024). Nevertheless I believe we should grant
the stay as explained briefly below.
In the Federal Service Labor-Management Relations
Statute (FSLMRS), 5 U.S.C. § 7101 et seq., the Congress
provided collective-bargaining rights for certain federal
employees. By its terms, the FSLMRS excludes the
employees of some agencies from its coverage. Id.
§ 7103(a)(3). And it empowers the President to exclude
others if he finds that national security so requires. Id.
§ 7103(b)(1). Under paragraph 7103(b)(1), the President
is authorized to “issue an order excluding any agency or
subdivision thereof from coverage under this chapter” if
he determines that it has “as a primary function
intelligence, counterintelligence, investigative, or national
security work” and that “the provisions of this chapter
cannot be applied” to it “in a manner consistent with
national security requirements and considerations.”
On March 27, 2025, the President issued an Executive
Order excluding a number of agencies and subdivisions,
including the Department of Defense (DoD), from
coverage pursuant to paragraph 7103(b)(1). Exclusions
from Federal-Labor Management Relations Programs,
Exec. Order No. 14,251, 90 Fed. Reg. 14,553 (2025).
Three labor organizations representing employees of the
Department of Defense Education Activity (DoDEA), a
2
subdivision of the DoD, then sued the President, two
additional Executive officials and two agencies. They
alleged, among other things, that the Executive Order was
issued ultra vires and the district court granted the
plaintiffs a preliminary injunction on that ground. Fed.
Educ. Ass’n v. Trump (FEA), No. 25-1362, 2025 WL
2355747, at *1 (D.D.C. Aug. 14, 2025). Because the
government has shown that it is entitled to a stay pending
appeal, I would grant it that relief.
To warrant a stay pending appeal, the movant must
show that it “is likely to succeed on the merits,” it “will be
irreparably injured absent a stay,” a stay will not
“substantially injure” the other interested parties and a stay
is in the “public interest.” Nken v. Holder, 556 U.S. 418,
434 (2009). The government has satisfied each factor; I
focus on the first two.
The government is likely to prevail on its appeal of
the preliminary injunction. The district court—on a record
largely confined to evidence of the DoDEA’s functions—
determined that much of the President’s Executive Order
was ultra vires. FEA, 2025 WL 2355747, at *15
(concluding that the Executive Order’s “exclusions
pursuant to Section 7103(b)(1)—taken together as a
whole—exceeded the President’s authority”). In my view,
that conclusion is remarkable. A plaintiff bringing an ultra
vires claim carries a uniquely heavy burden. Nyunt v.
Chairman, Broad. Bd. of Governors, 589 F.3d 445, 449
(D.C. Cir. 2009). To prevail, he must come equipped with
more than “a typical statutory-authority argument.”
Nuclear Regul. Comm’n v. Texas, 605 U.S. 665, 682
(2025). Here, the plaintiffs pressed, and the district court
accepted, what is essentially an ordinary statutory-
interpretation argument—that the President’s broad
3
interpretation of paragraph 7103(b)(1) threatened to turn a
narrow exception to the FSLMRS into its rule. See FEA,
2025 WL 2355747, at *12–13. That argument may not be
implausible but it falls well short of showing an error that
is “so extreme that one may view it as jurisdictional or
nearly so.” Griffith v. FLRA, 842 F.2d 487, 493 (D.C. Cir.
1988).
There are two additional factors that make the
government highly likely to prevail on the merits. First,
an ultra vires action must be “plain on the record” itself.
Fed. Express Corp. v. U.S. Dep’t of Com., 39 F.4th 756,
765 (D.C. Cir. 2022) (citation modified). That
requirement presents an unusual wrinkle in this case:
Rather than focusing on whether the DoD and DoDEA
satisfy paragraph 7103(b)(1)’s “primary function”
requirement, the district court looked to the non-party
departments and subdivisions that are excluded from
FSLMRS coverage. FEA, 2025 WL 2355747, at *11–13.
But because the plaintiffs represent employees of the
DoDEA alone, the record contains scant evidence
regarding the functions of the other excluded agencies and
subdivisions—which are neither plaintiffs nor represented
by any union in the litigation. As a consequence, the
district court was left to rely largely on its say-so to
determine that the non-party excluded agencies and
subdivisions do not satisfy paragraph 7103(b)(1) and that
the order is accordingly ultra vires. FEA, 2025 WL
2355747, at *14 (“This extensive list hardly includes only
agencies and subdivisions that plainly relate to national
security.” (citation modified)). In essence, the district
court aimed at non-targets and its errant aim cannot
support an ultra vires claim against the President.
4
Second, we have repeatedly cautioned that ultra vires
claims are even harder to win when they involve matters
of “foreign policy and national security.” Fed. Express
Corp., 39 F.4th at 769; accord Changji Esquel Textile Co.
v. Raimondo, 40 F.4th 716, 723 (D.C. Cir. 2022). And
ultra vires claims against the President raise unique
concerns in that context. For this reason, we have
explained that “[t]he President’s national-security findings
are not agency actions subject to arbitrary-or-capricious
review, and we decline to treat them as such.” Am.
Foreign Serv. Ass’n v. Trump (AFSA), No. 25-5184, 2025
WL 1742853, at *3 (D.C. Cir. June 20, 2025). Here, the
district court’s decision and reasoning failed to reflect the
“additional layer of deference” owed to the Executive in
this domain. Changji Esquel Textile Co., 40 F.4th at 723.
For these reasons, the government is likely to prevail
on the merits.
The government has also shown that it will suffer
irreparable harm absent a stay. The district court’s
preliminary injunction has hampered—and will hamper—
the President’s congressionally authorized “national-
security prerogatives.” Mot. 25 (quoting Nat’l Treasury
Emps. Union v. Trump (NTEU), No. 25-5157, 2025 WL
1441563, at *2 (D.C. Cir. May 16, 2025)). In view of the
political branches’ preeminence in this arena, we have
been careful not to improperly hamstring their efforts for
any extended period. NTEU, 2025 WL 1441563, at *2;
AFSA, 2025 WL 1742853, at *3; see Samuel L. Bray, The
Purpose of the Preliminary Injunction, 78 Vand. L. Rev.
809, 823 (2025) (characterizing irreparable harm as, in
part, “the intersection of significance and
incommensurability”). Because the district court’s
preliminary injunction threatens to do exactly that, the
5
government has shown that it will face irreparable harm
absent a stay.