Retaliation
Ninth Circuit Vacates Injunction Against Federal Bargaining Order
Updated
In American Federation of Government Employees v. Trump, the Ninth Circuit vacated a district court’s preliminary injunction that had blocked Executive Order 14,251, which excludes a range of federal agencies and subdivisions from collective bargaining on national security grounds. The panel held that, even assuming the unions made out a prima facie First Amendment retaliation claim, the government showed on this record that the President would have issued the order regardless of the unions’ protected speech. The opinion was filed February 26, 2026, and amended June 17, 2026.
Background
The Federal Service Labor–Management Relations Statute (FSLMRS) protects federal employees’ rights to join unions, but it also lets the President exclude agencies and subdivisions from coverage when their primary function involves national security work and the statute cannot be applied consistently with national security needs.
On March 27, 2025, the President signed Executive Order 14,251 under that authority, designating agencies including the Departments of State, Justice, and Veterans Affairs, the EPA, and large parts of Energy, Defense, and Treasury for exclusion. The White House issued a “Fact Sheet” the same day, and the Office of Personnel Management released its own guidance.
Six unions representing roughly 800,000 federal civilian employees sued, claiming First Amendment retaliation among other theories. The U.S. District Court for the Northern District of California preliminarily enjoined the order, relying mainly on the Fact Sheet’s tone toward labor unions. The government appealed, and the Ninth Circuit had already stayed the injunction pending appeal.
What the Court Held on Retaliation
A First Amendment retaliation plaintiff must show protected activity, a chilling effect, and that the activity was a substantial motivating factor in the challenged conduct. Once that prima facie case is made, the burden shifts to the official to show the same action would have been taken anyway—the Mt. Healthy but-for inquiry.
Assuming without deciding that the unions made a prima facie case, the panel concluded the government carried that burden on this record. The order discloses no retaliatory animus on its face and instead expresses a national security rationale, a judgment the statute presumptively entrusts to the Executive.
Even considering the Fact Sheet and OPM guidance, the panel found those materials, read as a whole, convey an overarching national security objective. The court reviewed the underlying legal principles de novo and the grant of the injunction for abuse of discretion.
On this preliminary record, the government showed that the President would have issued Executive Order 14,251 in the absence of any retaliatory animus, so the unions failed to demonstrate a likelihood of success or serious questions on their First Amendment retaliation claim.
Jurisdiction and the Remaining Factors
The panel agreed the district court had jurisdiction. Although the government argued the unions should have proceeded before the Federal Labor Relations Authority, the court found it was not “fairly discernible” that Congress meant unions representing excluded employees to use the statutory scheme to challenge their own exclusion.
Because the unions did not show a likelihood of success, the panel did not have to weigh the remaining injunction factors, but observed that the government would have the edge given the national security interest at stake. The preliminary injunction was vacated. Judge Owens concurred, noting that an appeal from a preliminary injunction may offer limited guidance on the ultimate merits.
What This Means for You
This decision addresses how the Mt. Healthy but-for defense applies when the government invokes statutory national security authority against a First Amendment retaliation claim. It holds that, on the preliminary record here, a facially neutral executive order grounded in national security, together with supporting agency materials, established that the same action would have been taken absent any retaliatory motive.
I write these summaries as general information about developments in California employment law. They are not legal advice and don’t create a mediator–client relationship. For guidance on a specific matter, consult a qualified attorney.