American Federation of Gov't Employees Local 2305 v. United States Department of Veterans Affairs

• Court: Court of Appeals for the First Circuit
• Decided: May 16, 2026
• Docket: 26-1321
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

No. 26-1321

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES LOCAL 2305; AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES NATIONAL VETERANS AFFAIRS COUNCIL,

Plaintiffs, Appellees,

v.

UNITED STATES DEPARTMENT OF VETERANS AFFAIRS; DOUGLAS A. COLLINS, in the official capacity as U.S. Secretary of Veterans Affairs,

Defendants, Appellants.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND

[Hon. Melissa R. DuBose, U.S. District Judge]

Before

Barron, Chief Judge, Aframe and Dunlap, Circuit Judges.

Charles C. Calenda, United States Attorney, Brett A. Shumate, Assistant Attorney General, Yaakov M. Roth, Principal Deputy Assistant Attorney General, Melissa N. Patterson, Joshua M. Koppel, Benjamin T. Takemoto, Tyler J. Becker, Attorneys, Appellate Staff, Civil Division, U.S. Department of Justice, were on brief for appellants. Brook Dooley, Travis Silva, JiLon Li, Alexandra Wheeler, Elizabeth Heckmann, Keker, Van Nest & Peters LLP, David Zimmer, Edwina Clarke, and Zimmer, Citron & Clarke LLP were on brief for appellees. May 16, 2026 BARRON, Chief Judge. The U.S. Department of Veterans

Affairs ("VA") and its Secretary, Douglas A. Collins

(collectively, the "defendants"), seek to stay two District Court

orders -- one issuing a preliminary injunction and the other

enforcing that injunction -- while their interlocutory appeals of

those orders are pending in this Court. The orders concern the

termination of a collective bargaining agreement between the VA

and the American Federation of Government Employees National

Veterans Affairs Council ("NVAC"). The agreement also covers

employees whom the American Federation of Government Employees

Local 2305 ("AFGE Local 2305") represents.

NVAC and AFGE Local 2305 (collectively, the

"plaintiffs") challenged the defendants' termination of the

agreement in the United States District Court for the District of

Rhode Island. The plaintiffs allege that the termination violated

the Administrative Procedure Act ("APA") and the First Amendment

to the U.S. Constitution. We grant the defendants' motion for a

stay pending appeal in part and deny it in part. The defendants'

accompanying motion for an administrative stay is denied as moot.

See Victim Rts. L. Ctr. v. U.S. Dep't of Educ., 154 F.4th 5, 11

(1st Cir. 2025).

- 3 - I.

A.

The Civil Service Reform Act of 1978 includes the Federal

Service Labor-Management Relations Statute ("FSLMRS"), which gives

federal employees the "right" to collectively bargain. See Pub.

L. No. 95-454, § 701, 92 Stat. 1111, 1191 (1978) (codified at 5

U.S.C. §§ 7101-06, 7111-23, and 7131-35); Ohio Adjutant Gen.'s

Dep't v. Fed. Lab. Rels. Auth., 598 U.S. 449, 452 (2023). The

FSLMRS creates "a comprehensive framework governing

labor-management relations in federal agencies," Ohio Adjutant,

598 U.S. at 452, and establishes the Federal Labor Relations

Authority ("FLRA") to manage this framework, see 5 U.S.C. § 7104.

The FLRA determines whether a union has been selected,

for collective bargaining purposes, to be the "exclusive

representative" for the employees in an agency or agency

subdivision. Id. § 7105(a)(2)(B). It also adjudicates disputes

over alleged unfair labor practices and arbitration awards made

pursuant to collective bargaining agreements between agencies and

unions. See id. § 7105(a)(2)(G)-(H).

The FSLMRS expressly gives the President of the United

States the authority to "exclud[e]" an agency or an agency's

subdivision from the statute's coverage upon making certain

findings. Id. § 7103(b)(1). Those findings are that: (1) "the

agency or subdivision has as a primary function intelligence,

- 4 - counterintelligence, investigative, or national security work[;]"

and (2) the FSLMRS's protections and collective bargaining

framework "cannot be applied to that agency or subdivision in a

manner consistent with national security requirements and

considerations." Id.

B.

On March 27, 2025, President Donald Trump issued an

executive order (the "EO") pursuant to § 7103(b)(1) in which, after

making the two findings described above, he excluded the VA from

the FSLMRS's coverage. See Exec. Order No. 14251, 90 Fed. Reg.

14553, 14553-54 (Mar. 27, 2025). In the EO, the President

"delegated" authority to the Secretary of the VA to suspend that

"exclusion[]" for "any subdivision[]" of the VA, such that those

subdivisions would remain subject to the FSLMRS. Id. at 14555.

In April 2025, various unions (not including the

plaintiffs here) sued the VA, Secretary Collins, President Trump,

and other federal agency officials in the Northern District of

California. The unions alleged that the EO, among other things,

"constituted First Amendment retaliation" for their advocacy. Am.

Fed'n of Gov't Emps. v. Trump, 148 F.4th 648, 653 (9th Cir. 2025)

("AFGE I"). A few days later, Secretary Collins exercised his

delegated authority under the EO and exempted specific unions from

the FSLMRS's coverage by name. He did not exempt the plaintiff

unions in this case.

- 5 - On June 24, 2025, the federal district court in the

Northern District of California preliminarily enjoined the

defendants there from implementing the EO against the plaintiff

unions involved in that case. Id. It concluded that those unions

were likely to succeed on their First Amendment retaliation claim.

See id. The Ninth Circuit thereafter granted a motion to stay the

preliminary injunction pending appeal, id. at 656, and ultimately

vacated it on the merits, see Am. Fed'n of Gov't Emps. v. Trump,

167 F.4th 1247, 1259 (9th Cir. 2026) ("AFGE II").

C.

On August 6, 2025, Secretary Collins sent a letter to

NVAC, notifying the union that the Master Collective Bargaining

Agreement ("CBA") between it and the VA had been terminated

effective that day. The CBA was signed in August 2023, went into

effect on August 8, 2023, and provided that it would "remain in

full force and effect for a period of three years after its

effective date." The CBA further provided that it "may only be

amended, modified, or renegotiated in accordance with the

provisions of this Agreement," and that "[n]egotiations initiated

by either party during the term to add to, amend, or modify this

Agreement may be conducted only by mutual consent of the parties."

Later that fall, on November 4, 2025, the plaintiffs

filed a complaint in the District of Rhode Island alleging that

the termination of the CBA: (1) violated § 706(2)(A) of the APA on

- 6 - arbitrary and capricious grounds; (2) violated § 706(2)(B) of the

APA on the grounds that the termination, in turn, contravened the

First Amendment's protections against, among other things,

expression-based retaliation, and also contravened the Fifth

Amendment's Equal Protection Clause; (3) violated § 706(2)(C) on

the grounds that the Secretary exceeded his authority in issuing

the termination; (4) violated various protections guaranteed by

the First Amendment; and (5) violated the Fifth Amendment's Equal

Protection Clause on the grounds that the termination subjected

the plaintiffs to "disfavored" treatment based on their perceived

"oppos[ition] to the Trump Administration."

The plaintiffs named as defendants the VA, as "a party

and signatory to the [CBA]," and Secretary Collins, in his official

capacity. The plaintiffs sought, among other things, a declaratory

judgment and an order permanently enjoining the defendants from

"implementing or enforcing the August 6 termination."

Three weeks later, the plaintiffs filed an amended

complaint and a motion for a preliminary injunction. The amended

complaint dropped the equal protection claim and the equal

protection-based APA claim, both of which were partially rooted in

the defendants' initial removal of the FSLMRS's protections for

only some unions, including the plaintiffs. The amended complaint

also alleged that, after the plaintiffs' lawsuit was filed, the

defendants removed the FSLMRS's protections from the other unions

- 7 - that had initially remained covered by that statute. In the

amended complaint, the plaintiffs asked for three new forms of

relief -- a preliminary injunction, relief pending review under 5

U.S.C. § 705, and permanent relief under 5 U.S.C. § 706.

D.

On March 13, 2026, the District Court granted the

plaintiffs' preliminary injunction motion and ordered that the

defendants "shall reinstate the . . . CBA -- as well as any

amendments, local supplemental agreements, and memoranda of

understanding that were in place subsidiary to the . . . CBA -- for

the remainder of the agreed-upon term provided in the . . . CBA."

The District Court reasoned that the plaintiffs were likely to

succeed on their First Amendment retaliation claims "because the

termination of the . . . CBA on August 6 seem[ed] substantially

motivated by the [p]laintiffs' history and frequency of vocally

opposing changes to labor policies."

First, the District Court identified certain statements

from a White House fact sheet that accompanied the EO, as well as

other statements from VA officials related to the terminations of

collective bargaining agreements, all of which highlighted unions'

advocacy. Second, it noted that the defendants initially excluded

some unions from the EO's coverage by name, "rather than [by]

subdivisions" of the agency as the EO "actually authorized."

Third, it noted that the U.S. Office of Personnel Management

- 8 - ("OPM") had told federal agencies to refrain from terminating

collective bargaining agreements until certain litigation

challenging the EO had concluded but that the defendants terminated

the CBA anyway -- "far from the conclusion of th[e] litigation and

far earlier than the guidance from the OPM indicated was

appropriate." Finally, it found that, "[o]ther than . . . one,

vague, post hoc statement about national security," there was "zero

indication" that the defendants would have terminated the CBA

absent a "retaliatory motive."

The District Court separately determined that the

plaintiffs were likely to succeed on their arbitrary and capricious

claim under the APA. It did so largely because it determined that

the August 6 termination letter, as well as other "same-day

statements the [VA] made when announcing" the termination, did not

mention national security, which was the basis that the FSLMRS and

the EO provided for excluding agencies from the FSLMRS's

protections.

E.

On March 18, 2026, a VA official shared a letter with

other VA officials noting that the CBA had been reinstated pursuant

to the preliminary injunction. Then, on March 20, 2026, the

defendants filed a motion to clarify the preliminary injunction.

The motion asked the District Court, among other things, to clarify

- 9 - whether the defendants were permitted to terminate the reinstated

CBA "for other reasons."

That same day, the plaintiffs filed a motion to enforce

the preliminary injunction. In their motion, the plaintiffs

alleged that the defendants, "[w]hile asserting that the [CBA]

ha[d] been reinstated," were "not, in fact, complying with the

terms of the [CBA] and, thus, . . . [were] not complying with the"

preliminary injunction. Specifically, they alleged that the

defendants "continue[d] to deny employees benefits due under the

[CBA], to deny union officials official time to attend to union

duties, to deny employees right during the disciplinary process,

and to refuse to participate in the negotiated grievance and

arbitration procedure."

On March 23, 2026, before ruling on the motion to

enforce, the District Court "granted" the defendants' motion to

clarify the preliminary injunction. It explained, in relevant

part, that it was "at a loss to understand how . . . the

[preliminary] injunction could possibly be read to order

that . . . the [d]efendants are wholesale prohibited from

terminating the . . . CBA again prior to the end of the three-year

term governing the contract." The District Court further explained

that "[t]o reinstate the . . . CBA means that all parties covered

by [the CBA] will continue to be covered by [the CBA] until it is

terminated or amended in a lawful manner." It concluded the order

- 10 - by stating that "the [c]ourt expects that the [d]efendants'

compliance with the plain language of the preliminary injunction

order will not be delayed" and that "the pending motion for

enforcement is no reason to delay compliance with the [c]ourt's

March 13, 2026 order to reinstate the . . . CBA in full."

The next day, on March 24, 2026, the defendants filed

their opposition to the plaintiffs' motion to enforce. The

defendants argued that the motion to enforce "is, in essence, an

improper request that the [c]ourt police the terms of the

three-year [CBA]." They contended in that regard that "[t]he root

of this improper request is clear: [the] [p]laintiffs conflate the

[c]ourt's order reinstating the . . . CBA (including its panoply

of remedies available for breach thereof) with an order mandating

adherence to each and every one of its terms (under penalty of

judicial contempt)." The defendants continued that the

"[p]laintiffs' recourse for alleged breaches is to follow the

procedures provided in the [CBA] -- the same procedures that they

followed before the termination of the . . . [CBA]."

That same day, the District Court scheduled a hearing on

the plaintiffs' enforcement motion to be held on March 27, 2026.

One day before the hearing on the motion to enforce, however, the

defendants filed a status report with the District Court. The

report stated that the defendants had "re-terminated" the CBA,

effective that day. The defendants attached a letter from

- 11 - Secretary Collins to NVAC notifying NVAC of the termination. It

explained that the CBA was being terminated again because

(1) President Trump excluded the VA from the FSLMRS's coverage,

(2) the CBA cannot operate without the FSLMRS, and (3) "continued

adherence" to the CBA would be inconsistent with both the

President's EO and the "national security determinations therein."

That same day, the plaintiffs filed their reply to the

defendants' opposition to the plaintiffs' enforcement motion, as

well as a "response" to the defendants' status report. In their

reply, the plaintiffs argued that the preliminary injunction

"clearly requires [the] [d]efendants to abide by the substantive

terms of the [CBA] with respect to all employees who were covered

by the [CBA] before the [t]ermination." They further contended

that the "[d]efendants' opposition [to the plaintiffs' preliminary

injunction motion], [d]efendants' oral argument presentation, and

the [preliminary injunction] [o]rder itself all address the

application of the [CBA] -- in a meaningful, substantive way -- to

covered employees."

In their response to the defendants' status report

noting the re-termination, the plaintiffs contended that the

defendants should have sought leave from the District Court before

re-terminating the CBA. The plaintiffs also asserted that the

"[d]efendants have no free-standing authority to terminate the

[CBA] during its term."

- 12 - After the hearing on March 27, 2026, the District Court

granted the plaintiff's motion to enforce. It concluded that the

re-termination of the CBA was not in compliance with the

preliminary injunction as clarified, which required that any

re-termination be done "in a lawful manner." It then ruled that

"the re-termination letter shall not be given any force or effect."

The District Court also "order[ed] and instruct[ed]"

that "[t]he [d]efendants' reinstatement of and compliance with

the . . . CBA . . . be in both form and substance." It further

directed the defendants to continue processing "the currently

pending grievances and arbitrations submitted under

the . . . CBA."

On April 2, 2026, the defendants issued guidance

pursuant to the District Court's enforcement order. The guidance

noted that, "the August 6, 2025, termination letter and the

March 26, 2026, re-termination letter will not be given any force

or effect."

F.

The defendants filed an emergency motion to stay the

preliminary injunction and the enforcement order pending the

defendants' interlocutory appeal to the Court of the injunction

and order. The District Court denied the motion. The defendants

thereafter filed in this Court a timely motion for a stay pending

appeal and an administrative stay of both the preliminary

- 13 - injunction and the order granting the motion to enforce the

preliminary injunction.

II.

A stay is an extraordinary intervention into the usual

process of appellate adjudication. See New York v. Trump, 133

F.4th 51, 65 (1st Cir. 2025). As the party seeking such

intervention here, the defendants have the burden to "(1) make a

strong showing that they are likely to succeed on the merits in

their appeal; (2) show that they will be irreparably injured absent

a stay; (3) show that issuance of the stay will not substantially

injure the other parties interested in the proceeding; and (4) show

that the stay would serve the public interest." Id. (citation

modified) (citing Nken v. Holder, 556 U.S. 418, 434 (2009)). The

first two factors -- likelihood of success and irreparable

injury -- are the most critical. See id. at 66. We review legal

questions de novo. See Dist. 4 Lodge of the Int'l Ass'n of

Machinists & Aerospace Workers Loc. Lodge 207 v. Raimondo, 18 F.4th

38, 43 (1st Cir. 2021).

III.

We start with the stay motion's request to stay the

preliminary injunction. As we will explain, we conclude that the

defendants have not shown that they are entitled to that stay.

- 14 - A.

Consistent with Nken, we focus first on the critical

"likelihood of success" factor. See 556 U.S. at 434. The

defendants fail to make the required "strong showing." Id.

1.

The defendants' lead argument is that the President's

decision to exclude the VA from the FSLMRS rendered the CBA

"inoperable" because "VA employees may not collectively bargain,

AFGE may not exclusively represent VA employees, and the [CBA's]

negotiated-grievance process -- which is enforced through

arbitration, FLRA orders, and limited review by courts of

appeals -- is no longer available." For that reason, the

defendants contend, it was "error" for the District Court to

"order[] reinstatement of a collective-bargaining agreement

against an agency now outside the statutory collective-bargaining

framework."1

1 Although an order issuing a preliminary injunction is not itself a final order, it is subject to interlocutory appeal under 28 U.S.C. § 1292(a)(1). Moreover, although the CBA has been reinstated in response to the enforcement order, rather than in response to the preliminary injunction itself, the request to stay that preliminary injunction, if granted, would be of use to the defendants precisely because the enforcement order depends on the preliminary injunction being enforceable. See Dep't of Homeland Sec. v. D.V.D., 145 S. Ct. 2627, 2629 (2025) (ruling that a "remedial order cannot . . . be used to enforce an injunction that [a] stay rendered unenforceable"); U.S. Philips Corp. v. KBC Bank N.V., 590 F.3d 1091, 1094-95 (9th Cir. 2010) ("If the preliminary injunction is dissolved, then a modification of that preliminary

- 15 - The plaintiffs correctly assert, however, that the

defendants did not make this argument in opposing the motion for

a preliminary injunction. At that time, the defendants advanced

the distinct argument that, even if the VA were not excluded from

the FSLMRS's coverage, the District Court would not have

jurisdiction over the plaintiffs' claims because the FSLMRS would

channel those claims to a different enforcement regime.

The defendants attempt to recast their original,

channeling-based argument as if it were no different from the

inoperability-based argument that they now advance. But we are

not persuaded, given the clear differences between the two

arguments. And, insofar as the arguments are different, the

defendants do not contend that the inoperability argument was

separately advanced below.

It is a problem, therefore, that the defendants neither

explain why the demanding standard of review that applies to a

forfeited argument does not apply, see García-Navarro v. Universal

Ins. Co., 173 F.4th 1, 7 (1st Cir. 2026) ("As we have repeatedly

warned, arguments that were not raised below are forfeited and

will only lead to reversal upon a showing of plain error."), nor

explain how they likely meet that standard. Indeed, we note, the

injunction cannot stand, because it was entered in error."); Fraihat v. U.S. Immigr. & Customs Enf't, 16 F.4th 613, 651 (9th Cir. 2021) (reversing a preliminary injunction and then "direct[ing] that all orders premised on it be vacated").

- 16 - record shows that the defendants chose to keep the CBA in place,

seemingly as if it remained binding on them, for months after the

President issued the EO, even though they were not subject during

those months to any court order to do so.

It may be that there is some reason why it was more

workable to keep the CBA in place as a binding agreement at that

time than it is now. But, if so, the defendants do not contend

that the CBA has since become any more unworkable than it was when

they chose to keep it in place during that period.

Thus, the defendants have not satisfied their burden as

to the "likelihood of success" factor based on their lead argument

for challenging the preliminary injunction. See Rhode Island v.

Trump, 155 F.4th 35, 43-45 (1st Cir. 2025).2

2 To the extent that the defendants mean to reassert the jurisdictional argument based on the FSLMRS that they made below, they develop no argument as to how the District Court erred in rejecting it. We also emphasize that, while the defendants in their stay motion raise a sovereign immunity challenge to a portion of the District Court's enforcement order, they do not do so as to the preliminary injunction. And, we note, although sovereign immunity raises a subject matter jurisdiction question, there is a difference between considering "whether to stay an order's operation," and "whether to reverse the underlying order." Am. Fed'n of State, Cnty. & Mun. Emps. v. Soc. Sec. Admin., 172 F.4th 361, 367 n.4 (4th Cir. 2026). Thus, while the defendants do appear to attempt to make such a sovereign immunity argument as to the preliminary injunction in their reply to the plaintiffs' opposition to the stay motion, "we do not consider arguments raised for the first time in a reply brief." United States v. Casillas-Montero, 152 F.4th 306, 320 n.8 (1st Cir. 2025). Moreover, the defendants failed to make this broader argument to the District Court in their stay motion. We therefore decline to

- 17 - 2.

The defendants separately contend, as to the first Nken

factor, that the District Court likely erred both in ruling that

the CBA's termination was retaliatory and in ruling that it was

arbitrary and capricious. Notably, each of those rulings, if

sound, in and of itself would support the preliminary injunction.

Thus, because we conclude that the challenge concerning the

District Court's retaliation ruling falls short, the defendants

have not met their burden as to the "likelihood of success" factor.

To challenge the District Court's retaliation ruling,

the defendants rely chiefly on the way that the Ninth Circuit in

AFGE II interpreted a White House fact sheet related to the EO.

See 167 F.4th at 1254-55. As we have noted, the District Court

relied on that fact sheet in ruling that the termination here was

likely retaliatory.

The defendants do not argue, however, that the record

fails to support the other bases for the District Court's

retaliation determination -- including that (1) the defendants

terminated the CBA, even though there was "explicit OPM guidance

consider that argument for that reason, too, "because Federal Rule of Appellate Procedure 8(a)(1)(A) ordinarily requires parties to move first for a stay in the district court before seeking relief in the court of appeals. Allowing appellants in this court to rely on arguments that they did not make in their motion before the district court undermines that rule." Rhode Island v. Trump, 155 F.4th 35, 46 (1st Cir. 2025).

- 18 - that agencies should refrain from terminating any CBAs until

[certain] litigation challenging the" underlying EO concluded and

(2) the defendants exempted certain unions by name, rather than

"subdivisions" of the agency. In fact, the defendants do not

grapple with those other bases.3 The defendants therefore do not

explain why the District Court likely erred in treating the fact

sheet, when considered along with the other evidence of retaliatory

motive on which the District Court relied, as providing support

for a finding that the defendants had a retaliatory motive. The

defendants also make no argument that the District Court's

retaliation determination would lack sufficient factual support

even if the fact sheet were disregarded.

In addition, we note that the defendants develop no

argument that, even if the District Court's factual findings

underlying its retaliation ruling are likely correct, the District

Court likely erred as a matter of law in making that ruling. See

United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) ("[I]ssues

adverted to in a perfunctory manner, unaccompanied by some effort

at developed argumentation, are deemed waived."). The defendants

thus cannot meet their burden as to the first Nken factor based on

3 The defendants do reference, in a single sentence contained in a footnote, the District Court's reliance on various VA officials' statements, but they do not even attempt to attack the other bases cited by the District Court.

- 19 - their challenge to the District Court's retaliation ruling. See

Nken, 556 U.S. at 434.

Given the defendants' failure to meet their burden as to

the critical "likelihood of success" factor, we do not see how the

defendants' arguments as to the three remaining Nken factors

suffice to support their request to stay the preliminary

injunction. Starting with the second Nken factor, we do not

dispute the defendants' contention that the CBA's reinstatement

will cause them additional financial expenses and result in VA

employees spending time on union-related matters rather than on VA

work. Nor do we dispute their contention that these resulting

harms are irreparable. We also may proceed on the understanding

that, as the defendants contend, because "the President[]

determin[ed] that collective bargaining by most VA employees is

inconsistent with national security -- an undisputed determination

meriting the utmost judicial respect," the preliminary injunction

causes them some irreparable harm by impeding national security.

The defendants go on to assert that the second Nken

factor merges with the fourth, because their asserted harms merge

with the public's interest. See Nken, 556 U.S. at 435. But, as

we have explained, the defendants have not shown that the

preliminary injunction likely was issued in error. Accordingly,

we must separately account for the public's interest in the

- 20 - CBA -- which is provided for and governed by federal law -- being

kept in place as a binding agreement until lawfully terminated.

See League of Women Voters v. Newby, 838 F.3d 1, 12 (D.C. Cir.

2016) ("[T]here is a substantial public interest in having

governmental agencies abide by the federal laws that govern their

existence and operations." (citation modified)).

Finally, as to the third Nken factor, which concerns

injury to the plaintiffs, the defendants assert that the plaintiffs

would not be substantially injured if a stay of the preliminary

injunction were granted. The defendants reason that the

plaintiffs' claimed loss of a right to a union representative

during disciplinary proceedings and decreased parental leave are

entitled to little weight. The defendants rely for this contention

on AFGE II's determination that such harms "would likely be

mitigated to a fair extent by reinstating the terminated agreements

if the union plaintiffs were to prevail." 167 F.4th at 1259. But,

even under the reasoning of that case, the plaintiffs' alleged

injuries would be manifest during the period in which the CBA was

not reinstated and so while the present appeal is pending.

Having considered all the Nken factors, we deny the

defendants' request to stay the preliminary injunction. The

defendants have not made the requisite "strong showing" in their

stay motion that they are likely to succeed in challenging the

preliminary injunction in their pending appeal. Nor have they

- 21 - shown that staying that injunction in the interim would not cause

substantial injury to the plaintiffs or the public. See Ind. State

Police Pension Tr. v. Chrysler LLC, 556 U.S. 960, 960-61 (2009)

(per curiam) (noting that "[a] stay is not a matter of right, even

if irreparable injury might otherwise result" and suggesting that

"in a close case . . . balanc[ing] the equities" "may be

appropriate" (citation modified)); Gun Owners of Am., Inc. v. Barr,

No. 19-1298, 2019 WL 1395502, at *1-2 (6th Cir. Mar. 25, 2019)

(denying a motion to stay a preliminary injunction pending appeal

and reasoning that, while the movant may suffer irreparable harm

in absence of the stay, the movant was unlikely to succeed on the

merits of their appeal and "the public interest in safety

support[ed] the denial of [the] stay").

IV.

We now turn to the portion of the defendants' motion

that seeks to stay the District Court's order granting the

plaintiffs' motion to enforce the preliminary injunction. We

emphasize two points up front.

First, in seeking to stay the enforcement order, the

defendants take aim at two distinct aspects of it: (1) the portion

that requires the defendants to "compl[y]" with the CBA, including

by "process[ing]" the "currently pending grievances and

arbitrations submitted under the . . . CBA"; and (2) the portion

that rejected the defendants' new termination as unlawful. Second,

- 22 - the defendants appear to agree that, absent a stay of the

preliminary injunction, they must make a strong showing both that

they likely can appeal each of these aspects of the enforcement

order on an interlocutory basis and that their interlocutory appeal

of that aspect of that order is likely to succeed. We follow the

defendants' lead by starting with their arguments challenging the

"compliance" portion of the enforcement order before then

addressing their arguments challenging the other portion of that

order.

As to the portion of the enforcement order that requires

the defendants to "compl[y]" with the CBA, we once again begin

with the "likelihood of success" factor. See Nken, 556 U.S. at

434. We then consider the other Nken factors.

In the ordinary course, even though a preliminary

injunction is subject to interlocutory appeal under 28 U.S.C.

§ 1292(a)(1), an order enforcing a preliminary injunction is not.

Rather, such an order may be appealed under that provision on an

interlocutory basis only if it modifies the preliminary

injunction. See New York v. Trump, 171 F.4th 1, 29 (1st Cir.

2026); Hatten-Gonzales v. Hyde, 579 F.3d 1159, 1170-71 (10th Cir.

2009) (explaining that appellate courts lack § 1292(a)(1)

- 23 - jurisdiction over orders that merely "enforce[]" preliminary

injunctions).

The defendants do not directly address our appellate

jurisdiction in their opening stay motion, even though they bear

the burden to establish such jurisdiction. See In re Fin.

Oversight & Mgmt. Bd. for P.R., 52 F.4th 465, 476-77 (1st Cir.

2022). We nonetheless understand them to be arguing that the

"compliance" portion of the enforcement order did modify the

preliminary injunction and so, for that reason, is itself subject

to interlocutory appeal. See 28 U.S.C. § 1292(a)(1) (granting

jurisdiction over district court orders that

"modify[] . . . injunctions").

Specifically, the defendants argue that the "compliance"

portion of the enforcement order "greatly expanded the

[preliminary] injunction's scope" "by stating for the first time

that the injunction encompassed 'compliance with the . . . CBA' in

addition to 'reinstatement.'" They also note, seemingly in support

of that same contention, that the enforcement order explicitly

required compliance with specific duties under the CBA -- namely,

that they "process[]" "the currently pending grievances and

arbitrations submitted under the . . . CBA."

The defendants are right that the preliminary injunction

contains no language that, on its face, refers to "compliance with

the . . . CBA." It instead states the following: "The Defendants

- 24 - shall reinstate the . . . CBA -- as well as any amendments, local

supplemental agreements, and memoranda of understanding that were

in place subsidiary to the . . . CBA -- for the remainder of the

agreed-upon term provided in the . . . CBA."

The defendants are also right that the order clarifying

the injunction does not mention "compliance" with the CBA. It

simply provides that "[t]o reinstate the . . . CBA means that all

parties covered by [the CBA] will continue to be covered by [the

CBA] until it is terminated or amended in a lawful manner." And

insofar as it refers to "compliance," it refers only to compliance

with the preliminary injunction itself.

The defendants are right as well that, by contrast, the

enforcement order states -- for the first time -- that

"reinstatement of and compliance with the . . . CBA . . . shall be

in both form and substance." (First emphasis added.) And they

are right, too, that, in the enforcement order, the District Court

expressly directed the defendants to "continue to . . . process[]"

"the currently pending grievances and arbitrations submitted under

Against this backdrop, we take the defendants to be

contending as follows. The "compliance" portion of the enforcement

order imposed a new requirement to comply with each and every term

in the CBA, even while it has been reinstated, subject to "fac[ing]

judicial contempt should [they] breach any obligation in the

- 25 - agreement's 67 articles." We emphasize that we do not understand

the defendants, in pressing this argument, to be disputing that

the preliminary injunction itself requires them to do more than

simply "reinstate" the CBA in name only, such that, even though

nominally "reinstate[d]," the CBA still would not constitute a

binding agreement with which they would have to comply. Indeed,

the defendants' arguments about the irreparable harms that they

contend that they will incur from reinstating the CBA are

unintelligible if the "reinstate[ment]" requirements would oblige

them to do no more than engage in a paper exercise of that

meaningless sort.

Put otherwise, we understand the defendants to be

arguing that the "compliance" portion of the "enforcement order

greatly expand[s]" the preliminary injunction's scope -- and

thereby modifies it -- in the specific sense that it makes each

and every breach of the CBA itself a violation of the preliminary

injunction, even after the CBA has been reinstated as a binding

agreement. And so, as the defendants see things, the "compliance"

portion of the enforcement order subjects them for the first time

to District Court-ordered specific performance as a remedy for any

such breach, seemingly notwithstanding the distinct grievance

procedures and related remedies contemplated under the CBA and

- 26 - seemingly also including breaches of those CBA-specified

procedures.4

It is not clear whether the District Court in fact

understood the "compliance" portion of its enforcement order to

have this consequence. It is therefore important to explain our

understanding of that portion of the enforcement order in relation

to the defendants' argument in seeking to stay it.

As an initial matter, the defendants, as we have

explained, at times appear to contend that the "compliance" portion

of the enforcement order must be construed to permit (albeit

impermissibly, in their view) the District Court to ignore the

provisions of the CBA that provide procedures for remedying an

alleged "breach" of the CBA's non-remedial terms. The defendants

appear to be contending, in other words, that this portion of the

enforcement order empowers the District Court to directly order

specific performance of each substantive CBA term whenever it

determines that such a term has been violated.

4 The FSLMRS provides that CBAs "shall provide procedures for the settlement of grievances," which include "claim[s] of breach" of a CBA. 5 U.S.C. §§ 7121(a)(1), 7103(a)(9)(C). And subject to a few exceptions, those procedures "shall be the exclusive administrative procedures for resolving grievances which fall within its coverage." Id. § 7121(a)(1). The CBA here likewise notes that, with a few exceptions, "any complaint . . . concerning the interpretation or application" of the CBA must be made using an "exclusive procedure" that begins informally -- for example, with a letter written to a supervisor describing the problem -- and escalates in formality -- all the way through arbitration -- if the complaint is not resolved.

- 27 - We cannot agree with this construction of the

"compliance" portion of the enforcement order. The order's text

does not require that construction, as "compliance" with an

agreement's terms does not naturally entail the disregard of those

terms that specify how violations of other terms must be addressed.

Indeed, the enforcement order itself acknowledges that the CBA

does set forth terms that specify such procedures and then

expressly provides that the defendants must "process[]" "the

currently pending grievances and arbitrations submitted under

We also understand the defendants to argue, however,

that the "compliance" portion of the enforcement order separately

expands the preliminary injunction in a more limited, but still

important, way. Here, they argue that, even after the CBA has

been reinstated, the order requires them to adhere (on pain of

judicial contempt) to each of the procedures that the CBA specifies

for addressing an asserted "breach" of one of its other terms in

each and every instance in which there is an asserted breach of

that term. That is, in requiring "compliance" with the terms of

the CBA and further "order[ing]" that the defendants comply with

a specific subset of the CBA's terms -- those that govern the

"grievance[] and arbitration[]" procedures -- even after the CBA

is reinstated, the defendants argue that the District Court has

thereby expanded the preliminary injunction and so modified it.

- 28 - Based on the difference between the terms used in the

challenged portion of the enforcement order and those used in the

preliminary injunction, we see no reason to reject this

construction of the "compliance" portion of the enforcement order.

We do recognize, of course, that there can be no breach of the

CBA, once it has been terminated, until it is reinstated as a

binding agreement. But that fact does not undermine the

defendants' argument that the "compliance" portion of the

enforcement order expanded -- and so modified -- the preliminary

injunction in the way just described. The duty to "reinstate" the

CBA as a binding agreement that has its own independent legal force

that the preliminary injunction imposes, and the duty not to

violate the reinstated CBA in any particular instance (even though

that violation in that instance is only of one of the CBA's

provisions specifying the procedure for addressing an asserted

violation of one of the CBA's substantive terms), are distinct

obligations.

The plaintiffs do dispute the defendants' contention

that the "compliance" portion of the enforcement order greatly

expanded the preliminary injunction's scope. As support, the

plaintiffs assert that "[t]he parties and district court

understood that [p]laintiffs were seeking substantive

reinstatement of the . . . CBA, and that is what the court ordered

in the [preliminary] injunction." The plaintiffs also point out

- 29 - that, in the District Court's analysis of the equities and public

interest in its opinion accompanying the preliminary injunction,

it "acknowledge[d] that the changes resulting from the termination

of the . . . CBA are significant and that reversing these changes

will have associated costs of time and resources for the VA." And

they observe that, during the hearing on the preliminary

injunction, counsel for the defendants said, "The government, if

the CBA is reinstated, will have to give back . . . office space,"

"allow employees to engage in union activity during the workday,"

and "reengage in arbitrations."

These statements do not show, however, that the

preliminary injunction itself made any individual instance of a

breach of one of the CBA's terms providing for "grievance[] and

arbitration[]" procedures itself a violation of that injunction.

The statements show only that the "reinstate[ment]" requirement is

one of substance that results in the re-establishment of a binding

agreement and not a merely nominal "reinstate[ment]." Thus, if by

pointing to the statements that we have just recounted, the

plaintiffs mean to argue that the enforcement order did not modify

the preliminary injunction because the preliminary injunction

itself empowered the District Court to order specific performance

for each and every breach of the CBA's terms providing for

"grievance[] and arbitration[]" procedures, even after the CBA has

been reinstated as a binding agreement, then we cannot agree.

- 30 - In sum, we conclude that the defendants have made a

strong showing that, in requiring "compliance with the . . . CBA"

and further in requiring the defendants to "process[]" "the

currently pending grievances and arbitrations submitted under

the . . . CBA," the enforcement order likely "substantially

readjusts the legal relations of the parties." Morales Feliciano

v. Rullan, 303 F.3d 1, 7 (1st Cir. 2002). And so, because that

portion of the order likely modified the preliminary injunction in

a manner contemplated by 28 U.S.C. § 1292(a)(1), it follows that

if the defendants were to make a strong showing that they would

likely succeed on the merits of their challenge to this portion of

the enforcement order, then they would have made a strong showing

that they would have satisfied the "likelihood of success" factor

as to that portion.

2.

We turn, then, to the question of whether the defendants

have made the requisite strong showing. We begin and end our

analysis of that question with the defendants' contention that the

District Court likely lacks jurisdiction to order specific

performance in the expanded manner that we have just explained

that the "compliance" portion of the enforcement order

contemplates.

Ordinarily, the defendants argue, a collective

bargaining agreement like the CBA is not so enforceable by a

- 31 - district court. It is instead enforceable only pursuant to the

specific requirements set forth in the FSLMRS and the CBA's terms.

So, the defendants contend, the District Court cannot claim such

enforcement authority insofar as the District Court understands

the FSLMRS to continue to govern the CBA after it is reinstated.

The defendants go on to contend that, insofar as the

FSLMRS for some reason does not oust the District Court from

directly enforcing the CBA in the manner that the "compliance"

portion of the enforcement order contemplates, the Tucker Act and

Little Tucker Act do. The defendants base this last contention on

their assertion that the federal government has waived its

sovereign immunity only as to the payment of money damages in

breach of contract cases and that "[f]ederal courts do not have

the power to order specific performance by the United States of

its alleged contractual obligations." Coggeshall Dev. Corp. v.

Diamond, 884 F.2d 1, 3 (1st Cir. 1989). As such, the defendants

argue, the Tucker Act and Little Tucker Act "create[] implied

exceptions to the APA's waiver of sovereign immunity for actions

seeking non-monetary relief." (Citing 5 U.S.C. § 702.)

The District Court did not address its jurisdiction in

issuing the enforcement order. It simply issued that order. The

District Court therefore did not identify a basis for rejecting

the jurisdictional challenge to the "compliance" portion of the

enforcement order that the defendants now mount.

- 32 - The plaintiffs, for their part, argue that the

defendants waived their jurisdiction-based challenge by not

raising it to the District Court in opposing the motion for the

preliminary injunction. But, consistent with the terms of the

preliminary injunction, the plaintiffs' motion requesting that

injunction sought only to have the CBA reinstated. And, as we

have explained, an order that requires the CBA's reinstatement

would not itself entail that the District Court could police the

enforcement of the agreement's terms in the manner that the

enforcement order's "compliance" requirement contemplates. Thus,

we do not fault the defendants for not having made this

jurisdictional argument earlier, and, we note, they did advance

this very same argument in their stay motion to the District Court.

See Herbert v. Dickhaut, 695 F.3d 105, 109 (1st Cir. 2012) ("There

can be no waiver where a party lacked an opportunity to raise an

argument.").

The plaintiffs also argue that Coggeshall does not apply

because their claims against the defendants are not contract-based

but instead are rooted in the APA and the First Amendment. In

support of this contention, they cite American Public Health Ass'n

v. National Institutes of Health, 145 F.4th 39, 50 (1st Cir. 2025),

and note that they are "neither seeking monetary relief nor

asserting a narrow breach of the CBA." They also cite Puerto Rico

v. United States, 490 F.3d 50, 57-58 (1st Cir. 2007), seemingly

- 33 - for the proposition that the APA's waiver of sovereign immunity

for nonmonetary relief extends to "any suit whether under the APA

or not," including their First Amendment claim.

It is true that, unlike this case, Coggeshall concerned

an action for mandamus to enforce a contract between a private

entity and the federal government in which no allegation was made

that the defendant officers had otherwise acted outside the scope

of their statutory or constitutional authority. See 884 F.2d at

2-4. But the question here concerns whether, even after the CBA

has been reinstated as a binding agreement pursuant to the

preliminary injunction, the District Court may then modify that

injunction as a means of enforcing it by ordering specific

performance in each instance in which it finds that there has been

a breach of one of the CBA's terms providing for "grievance[] and

arbitration[]" procedures. After all, such an individual breach

would not in and of itself suffice to show that the CBA had not

been reinstated as a binding agreement and need not itself result

from the defendant having in that instance "acted outside their

scope of authority." Id. at 4.

Notably, neither American Public Health Ass'n nor Puerto

Rico speaks to such a circumstance, as neither case concerned an

order to enforce an injunction at all. See American Public Health

Ass'n, 145 F.4th at 47; Puerto Rico, 490 F.3d at 56-57. Thus, at

least on this record, and given the absence of an explanation by

- 34 - the District Court of the basis of its authority to order such

specific performance, we conclude that the defendants have

satisfied their "strong showing" burden under Nken's first factor

as to the "compliance" portion of the enforcement order.

The plaintiffs do have one final response. They appear

to argue that the District Court has not actually ordered specific

performance of the entire CBA, such that any individual instance

of non-compliance with its provisions is thereby a violation of

the enforcement order. Rather, the plaintiffs contend, the

District Court in the enforcement order "simply ordered

substantive compliance with the . . . CBA without addressing any

narrow allegation of breach." As such, they contend "[i]t is

premature to predict that [d]efendants will breach specific terms

of the . . . CBA and whether or how the [D]istrict [C]ourt will

address such an event."

As we have explained, however, the "compliance" portion

of the enforcement order modifies the preliminary injunction,

which ordered "reinstate[ment]" of the CBA, in the way that we

have described. We therefore do not see how this last response by

the plaintiffs undermines the showing as to the first Nken factor

that the defendants have made.

3.

Having concluded that the defendants have met their

burden as to the "likelihood of success" factor with respect to

- 35 - the "compliance" portion of the enforcement order, we turn, then,

to the final three stay factors so that we may assess how they

bear on the defendants' request to stay that aspect of the

enforcement order. By way of reminder, those three factors

are: whether the defendants "will be irreparably injured absent a

stay," whether "issuance of the stay will substantially injure the

other parties interested in the proceeding," and whether issuance

of the stay will be in "the public interest." Nken, 556 U.S. at

434 (citation omitted). We conclude that, after accounting for

these three factors, the defendants are entitled to a stay of this

portion of the enforcement order.

The defendants identify an irreparable harm that stems

directly from the enforcement order's "compliance" directive: The

District Court's "mandat[e], under threat of contempt" "is utterly

foreign to any type of labor-relations or contract suit that

Congress has authorized and represents a significant intrusion on

the Executive Branch." (Citation omitted.) Given that the

defendants have shown that they are likely to succeed on their

challenge to the "compliance" portion of the enforcement order, we

agree.

We recognize that we also must consider the possible

harm to the plaintiffs from the requested stay. The defendants

have shown, however, that they are likely to succeed on their

challenge to the kind of district court-ordered specific

- 36 - performance that is contemplated by the "compliance" portion of

the enforcement order. Thus, because the defendants have shown

that they will suffer irreparable injury from being subject to the

"compliance" directive and that the requested stay will not cause

the plaintiffs to suffer additional injury that might flow from

it, the calculus looks different as it relates to the enforcement

order's "compliance" directive than it does as to the preliminary

injunction itself. See Trump v. CASA, Inc., 606 U.S. 831, 860-61

(2025) (granting the federal government's motion for a partial

stay pending appeal and reasoning that the "[g]overnment is likely

to suffer irreparable harm from the District Courts' entry of

injunctions that likely exceed the authority conferred by" statute

and that the "balance of equities" weighed in favor of the

government because the requested relief "will cause no harm to"

the plaintiffs). We therefore conclude that the defendants are

entitled to a stay of the "compliance" portion of the enforcement

There remains to address only the defendants' request to

stay the other portion of the enforcement order. In that portion,

the District Court deemed the defendants' second termination of

the CBA unlawful and therefore ineffective. Again, we begin with

the "likelihood of success" factor before addressing the other

Nken factors.

- 37 - 1.

The defendants appear to view this portion of the

enforcement order as being independently appealable on an

interlocutory basis because it, too, "greatly expanded the

injunction's scope." The defendants do not explain, though, how

this portion of the order does so.

True, the defendants argue that the re-termination was

"lawful" despite the District Court's contrary ruling. But the

defendants focus chiefly on whether the reasons given for the

re-termination reveal a retaliatory motive. They do not make a

separate argument about why the District Court's handling of the

re-termination of the CBA constituted, under 28 U.S.C.

§ 1292(a)(1), a modification of the preliminary injunction. And

that failure is conspicuous when we consider that the defendants

did develop such an argument as to the "compliance" portion of the

enforcement order.

After all, the defendants do not argue that the order

clarifying the preliminary injunction itself modified the

preliminary injunction or that the clarification permitted

unlawful terminations. Yet a mere disagreement about whether the

re-termination was in fact lawful would appear to be just a

disagreement about whether the defendants complied with the

injunction as clarified. As a result, such a disagreement would

- 38 - not itself reveal that the enforcement order expanded -- let alone

greatly expanded -- the preliminary injunction.5

The defendants do argue that, under Federal Rule of Civil

Procedure 65(d)(1), the District Court's "failure to explain the

re-termination's perceived defect . . . warrants a stay." But, to

the extent that the defendants invoke Rule 65(d)(1) to argue that

the District Court's failure to explain why the re-termination was

unlawful somehow itself modified the preliminary injunction, they

do not state this proposition clearly, let alone develop it. See

Zannino, 895 F.2d at 17.

We therefore conclude that the defendants have failed to

meet their burden to show that this portion of the enforcement

order "substantially readjusts the legal relations of the parties"

and thereby modifies the injunction for purposes of 28 U.S.C.

§ 1292(a)(1). Morales Feliciano, 303 F.3d at 7. As a result, the

defendants have not made a strong showing that they are likely to

succeed in their pending appeal of this portion of the enforcement

order.6

5 With respect to whether the termination was "lawful," the plaintiffs asserted in their "response" to the defendants' status report (which noted that the defendants had re-terminated the CBA) that the "[d]efendants have no free-standing authority to terminate the [CBA] during its term." 6 Although we have determined that the "compliance" portion

of the enforcement order likely does modify the preliminary injunction, it is the defendants' burden to establish that appellate jurisdiction exists as to their interlocutory appeal of

- 39 - 2.

With respect to the three remaining Nken factors, the

defendants appear to rely on the same arguments that they made as

to the preliminary injunction. We therefore conclude that those

arguments, on balance, shake out in the same manner: The competing

harms, in combination with the defendants' failure to make a strong

showing that they are likely to succeed on their challenge of the

re-termination, counsels against granting a stay of the

enforcement order's unlawfulness determination. See Gun Owners of

America, 2019 WL 1395502, at *1-2.

this distinct portion of that order. See In re Fin. Oversight & Mgmt. Bd. for P.R., 52 F.4th 465, 476-77 (1st Cir. 2022). They do not argue, however, that it follows from 28 U.S.C. § 1292(a)(1) that because we have appellate jurisdiction on an interlocutory basis over part of the enforcement order, we have it over even those portions of the order that do not themselves modify the preliminary injunction. Indeed, we have not previously so held, and there is contrary authority from at least one other circuit. See Dominguez v. Better Mortg. Corp., 88 F.4th 782, 794 (9th Cir. 2023) (noting that "[j]ust because part of the order being timely appealed is reviewable" under 28 U.S.C. § 1292(a)(1) "does not mean that every issue addressed in the same order" is reviewable and further noting that different issues would need to "fit" into an "exception that would allow for review"). The defendants thus have not made a strong showing in that respect. In addition, they have not separately made a showing based on the distinct theory of pendent appellate jurisdiction, see Aleynikov v. Goldman Sachs Grp., Inc., 765 F.3d 350, 357 (3d Cir. 2014) (concluding the court had jurisdiction under 28 U.S.C. § 1292(a)(1) and then considering, upon request of a party, the appropriateness of pendent appellate jurisdiction over different issues raised in a motion for summary judgment, which had been denied by the district court), as the defendants make no argument on that score either.

- 40 - V.

For the foregoing reasons, we grant the motion for a

stay pending appeal of the District Court's directive that the

defendants "compl[y] with the . . . CBA, along with any

'amendments, local supplemental agreements, and memoranda of

understanding related thereto' . . . in both form and substance,"

as well as its directive that the defendants "continue

to . . . process[]" "the currently pending grievances and

arbitrations submitted under the . . . CBA." We deny the

defendants' stay motion with respect to the preliminary

injunction. We also deny the defendants' stay motion with respect

to their challenge to the District Court's unlawfulness

determination in its enforcement order. Finally, we deny the

defendants' accompanying motion for an administrative stay as

moot.

- 41 -