North America's Building Trades Unions v. Department of DefenseNorth America's Building Trades Unions v. Department of Defense
GRANTING PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION
I. INTRODUCTION
North America‘s Building Trades Unions (“NABTU“) and Baltimore-D.C. Metro Building and Construction Trades Council (“Baltimore-DC Building Trades“) (collectively, “Plaintiffs“) seek a preliminary injunction against the Department of Defense (“DoD“); Peter B. Hegseth, in his official capacity as Secretary of Defense; the General Services Administration (“GSA“); and Stephen Ehikian, in his official capacity as Acting Administrator of GSA (collectively, “Defendants“). Plaintiffs challenge recent memoranda issued by the DoD and GSA that exempt certain large-scale construction projects from the Project Labor Agreement (“PLA“) 1 requirements
these actions unlawfully revoke the PLA mandate and harm their ability to negotiate and administer PLAs, particularly affecting major projects like the Marine Barracks in Washington, D.C. and the United States Department of Agriculture (“USDA“) Dairy Forage Research Center in Wisconsin. The DoD and GSA contend that, although PLAs will not be mandated for large-scale construction projects, projects that contain PLAs will still be considered, but Plaintiffs assert that the memoranda undermine their role in the process and deprive them of the “bargaining chip” the EO PLA mandate providеs them. As a result, Plaintiffs seek a preliminary injunction to prevent further harm and ensure compliance with the EO. For the foregoing reasons, the Court grants Plaintiffs’ motion for preliminary injunction.
II. REGULATORY BACKGROUND
On February 4, 2022, President Biden issued
However, “[a] senior official within an agency may grant an exception from the requirements . . . for a particular contract” under circumstances specified in section 5 of the EO.
III. FACTUAL AND PROCEDURAL BACKGROUND
NABTU represents over three million workers through 14 national and international unions and over 330 trade councils. Decl. of Sean McGarvey (“McGarvey Decl.“) ¶ 3, ECF No. 5-2. NABTU, including its affiliate, the Baltimore-D.C. Building Trades, plays a key role in negotiating and administering PLAs for federal construction projects, including those subject to the EO. See Mem. in Supp. of Pls.’ Mot. for Prelim. Inj. (“Pls.’ Mot.“) at 1, ECF No. 5-1. NABTU and its affiliates enter into hundreds of PLAs each year, including agreements for various large-scale projects funded by federal agencies like the DoD and GSA. See McGarvey Decl. ¶¶ 9-11. Examples include PLAs for projects such as the $137 million Indian River Lagoon-South project in Florida, see
On February 7, 2025, DoD issued a memorandum stating that contracting officers should no longer require agreements to negotiate PLAs for large-scale projects, instructing them to amend solicitations accordingly. Mem. re: Class Deviation—Waiver of Project Labor Agreement Requirements, Dep‘t of Defense (“DoD Mem.“), ECF No. 5-6. Similarly, on February 12, 2025, GSA issued its own memorandum, exempting Land Port of Entry (“LPOE“) projects from the PLA requirement, citing specific conditions in these projects, such as their locations and anticipated timelines, as grounds for the exception. Mem. for All PBS Contracting Activities and Heads of Contracting Activity, GSA (“GSA Mem.“), ECF No. 5-7. The memoranda “announce that the agencies intend not to require PLAs in future solicitations.” See Defs.’ Mem. Opp‘n Pls.’ Mot. Prelim. Inj. (“Defs.’ Opp‘n“) at 10, ECF No. 14.
Plaintiffs argue that these memoranda unlawfully revoke the PLA requirement set forth in
On April 9, 2025, Plaintiffs filed this action against Defendants over the memoranda they issued regarding PLAs. Plaintiffs are a labor organization composed of national and international unions, along with a local labor council reprеsenting construction trades unions in Maryland, D.C., and Northern Virginia. See Compl. ¶¶ 9-10. Plaintiffs allege injury based on the agencies’ decisions not to include the PLA requirement in future solicitations, which exclusion they claim interferes with Plaintiffs’ ongoing practice of negotiating such agreements with contractors bidding on federal large-scale construction projects. See
On April 10, 2025, Plaintiffs filed a motion for a preliminary injunction to prevent enforcement of the agencies’ memoranda while the case proceeds. See generally Pls.’ Mot. Defendants argue that both DoD and GSA‘s memoranda continue to allow bids for major construction projects that contain PLAs; the memoranda merely remove the mandatory requirement to negotiate their inclusion in the solicitations for such projects. See Defs.’ Opp‘n at 2. To which Plaintiffs replied that the agencies’ actions unlawfully hinder their ability to negotiate PLAs by eliminating the “bargaining chip” that the PLA mandate provides them, and thus, they seek a preliminary injunction to prevent further harm. Reply Mem. in Supp. Pls.’ Mot. Prelim. Inj. (“Pls.’ Reply“) at 4, ECF No. 16. The motion is fully briefed and ripe for resolution.
IV. LEGAL STANDARD
“A preliminary injunction is ‘an extraordinary remedy that may only be awarded upon a clear showing that the [movant] is entitled to such relief.‘” John Doe Co. v. Consumer Fin. Prot. Bureau, 849 F.3d 1129, 1131 (D.C. Cir. 2017) (alteration in original) (quoting Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008)). “A plaintiff seeking a preliminary injunction must establish [(1)] that he is likely to succeed on the merits, [(2)] that he is likely to suffer irreparable harm in the absence of preliminary relief, [(3)] that the balance of equities tiрs in his favor, and [(4)] that an injunction is in the public interest.” Winter, 555 U.S. at 20. When “the Government is the opposing party,” the determination of the third and fourth factors regarding “harm to the opposing party” and “the public interest” merge. Nken v. Holder, 556 U.S. 418, 435 (2009). “Of course, the movant carries the burden of persua[ding]” the Court that these factors merit preliminary relief, Fla. EB5 Invs., LLC v. Wolf, 443 F. Supp. 3d 7, 11 (D.D.C. 2020), and must do so by making a “clear
“The standard for irreparable harm is particularly high in the D.C. Circuit. Plaintiffs have the considerable burden of proving that their purported injuries are certain, great and actual—not theoretical and imminent, creating a clear and present need for extraordinary equitable relief to prevent harm.” Fisheries Survival Fund v. Jewell, 236 F. Supp. 3d 332, 336 (D.D.C. 2017) (internal quotation marks omitted). “In addition, the certain and immediate harm that a movant alleges must also be truly irreparable in the sense that it is beyond remediation.” Id. (internal quotation marks omitted). Plaintiffs must “substantiate” their claim of irreparable harm with “proof.” Wis. Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir. 1985).
In general, “[a] preliminary injunction may be granted based on less formal procedures and on less extensive evidence than in a trial on the merits,” although an evidentiary hearing is required where there are “genuine issues of materiаl fact” precluding a decision on the filings. Cobell, 391 F.3d at 261; cf. Shvartser v. Lekser, 330 F. Supp. 3d 356, 361 (D.D.C. 2018) (deciding hearing was unnecessary where defendants did not request hearing or raise any “genuine issues of material fact“). Here, neither party requests an evidentiary hearing. See Defs.’ Consent Mot. for Extension of Time to Respond to Pls.’ Mot. for Prelim. Inj. ¶ 3, ECF No. 7 (“At this stage, neither party requests oral argument.“). Accordingly, the Court will consider Plaintiffs’ motion only on the parties’ written submissions. That said, because preliminary injunctions are a significant measure, “any injunction that the court issues must be carefully circumscribed and tailored to remedy the harm shown” by the facts. Beacon Assocs., Inc. v. Apprio, Inc., 308 F. Supp. 3d 277, 284 (D.D.C. 2018) (quoting Morgan Stanley DW Inc. v. Rothe, 150 F. Supp. 2d 67, 72 (D.D.C. 2001)).
V. ANALYSIS
Plaintiffs seek a declaration that the memoranda are unlawful, an injunction to prevent their enforcement, and an order granting Plaintiffs costs. Compl. ¶¶ A-C. Plaintiffs contend that they are likely to succeed on the merits of each of their three claims under the APA,
A. Standing
Before considering the merits of Plaintiffs’ APA arguments, the Court must first dеtermine whether Plaintiffs maintain standing to bring these claims. It is an “essential and unchanging part of the case-or-controversy requirement” that a plaintiff must establish Article III standing to sue in federal court. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992). To establish Article III standing, a party must show that: (1) they have suffered an injury in fact, (2) the injury is fairly traceable to the challenged action of the defendant, and (3) it is likely that the injury will be redressed by a favorable decision. Id. at 560-61. A party seeking a preliminary injunction “must show a substantial likelihood of standing.” Green v. U.S. Dep‘t of Just., 54 F.4th 738, 744 (D.C. Cir. 2022) (quoting Food & Water Watch, Inc. v. Vilsack, 808 F.3d 905, 913 (D.C. Cir. 2015)).
Plaintiffs argue that they have standing because they suffered concrete and particularized
In response, Defendants argue that Plaintiffs lack Article III standing because they fail to demonstrate a concrete injury. Defs.’ Opp‘n at 9-13. Defendants assert that Plaintiffs’ claimed injury is speculative, because the memoranda merely direct government agencies to remove the PLA requirement from future solicitations, without precluding contractors from submitting bids that voluntarily contain them.
1. Injury in Fact
As set forth above, to establish that a plaintiff possesses standing to bring a claim, the plaintiff must show that he has suffered an injury in fact. Lujan, 504 U.S. at 560. To establish that he has suffered an injury in fact, a plaintiff must have suffered “an invasion of a legally protected interest,”
Plaintiffs argue that they have each suffered a concrete, particularized, and actual injury due to Defendants’ memoranda, which deprive them of the “bargaining chip” the EO PLA requirement provided them in the contracting process for large-scale construction projects. Pls.’ Mot. at 15-17. As a result, Plaintiffs claim they have lost the opportunity to negotiate PLAs—both currently and in the future—with contractors, as well as leverage when contractors do negotiate over PLAs, thеreby weakening their bargaining position. Plaintiffs further argue that this harm is not speculative: the memoranda have directly diminished their leverage in negotiations. While Defendants contend that the memoranda merely express an intent not to require PLAs, rather than barring
Plaintiffs have sufficiently demonstrated an injury in fact: a concrete, particularized, and actual harm resulting from the memoranda‘s discouragement of PLAs. This harm is not conjectural or hypothetical; it is sufficiently demonstrated in the explicit removal of PLA requirements in amended solicitations, including for the Marine Barracks project, which abruptly ended ongoing PLA negotiations. This satisfies the standard in Nat‘l Fam. Plan. & Reprod. Health Ass‘n, Inc. v. Gonzales, 468 F.3d 826, 828-29 (D.C. Cir. 2006), and Food & Water Watch, 808 F.3d at 914, requiring an injury to be “real” and “immediate,” not speculative. The facts point to the fact that NABTU and its affiliates had a direct role in negotiating PLAs for federal large-scale construction projects for which the solicitations were amended post the memoranda, demonstrating a tangible change in their operating environment.
As in Building & Construction Trades Department, AFL-CIO v. Allbaugh, 172 F. Supp. 2d 138 (D.D.C. 2001), the loss of bargaining opportunities tied to PLAs constitutes a concrete and justiciable injury.3 In Allbaugh, the district court recognized that the removal of a government policy encouraging PLAs was sufficient to constitute an injury in fact, as it impacted the unions’ ability to effectively advocate for labor protections through PLAs. 172 F. Supp. 2d at 147-148 (holding that the loss of the plaintiff‘s ability to negotiate similar agreements in federal construction projects was “a change in bargaining position” that was “itself a particularized and concrete harm“). Here, the challenged memoranda operate similarly: by broadly exempting projects from PLA mandates without applying the EO‘s case-by-case exceptions, the memoranda deprive Plaintiffs of the structured leverage the EO is designed to ensure.
Similarly, in Clinton v. City of New York, 524 U.S. 417, 432-33 (1998), the Supreme Court found that loss of a statutory benefit that diminished bargaining strength was a cognizable injury, reinforcing Plaintiffs’ claim. Just as the loss of the tax deferral in Clinton nullified a negotiation position and terminated pending transactions, see id. at 426-27, 432, the removal of the PLA mandate here also undercuts NABTU‘s leverage and has already disrupted actual negotiations, Pls.’ Mot. at 12-13. The Court in Clinton emphasized that economic leverage lost due to governmental action—even where no direct prohibition existed—was sufficient for standing. 524 U.S. at 433 n.22 (“[A] denial of a benefit in the bargaining process can itself create an Article III injury . . . .“). Here, too, Plaintiffs do not challenge the ability to voluntarily include PLAs in projects, but they instead challenge the withdrawal of a government-imposed requirement that previously strengthened their bargaining power. That is a sufficient injury to establish standing.
Plaintiffs have also shown that this impairment has an alleged direct effect on their members’ ability to participate in federal contracting, satisfying Lujan‘s requirement that the injury be personal and specific. 504 U.S. at 563. Plaintiffs’ injury is not a generalized grievance
Thus, Plaintiffs’ alleged injury is neither hypothetical nor generalized, but immediate and particularized, and ongoing. It flows directly from the memoranda‘s effect on federal contract practices for large-scale projects, which now direct contracting officers to omit PLA requirements from future solicitations without engaging in the individualized exception analysis mandated by the EO. This shift undermines Plaintiffs’ ability to secure PLAs not only for specific ongoing projects, but it also affects Plaintiffs’ ability across the full spectrum of future large-scale federal construction projects. The deprivation of this regulatory “bargaining chip” mirrors the harm recognized as cognizable in both Clinton and Allbaugh. Taken together, the holdings in these cases confirm that when a government action strips away a statutory or regulatory structure that meaningfully enhances a party‘s negotiating power—as Plaintiffs allege occurred here—standing is established. Plaintiffs have substantiated this harm with concrete examples of halted negotiations and the demonstrable weakening of their bargaining position. Accordingly, Plaintiffs have adequately alleged a cognizable injury in fact under Article III.
2. Causation
Second, in order to establish standing, a plaintiff must show that his injury in fact is “fairly traceable” to the challenged action of the defendant. Steel Co. v. Citizens for a Better Env‘t, 523 U.S. 83, 103 (1998). The injuries must flow from Defendants’ actions and cannot be the “result [of] the independent action of some third party not before the court.” Lujan, 504 U.S. at 561 (alteration in original) (quoting Simon v. E. Ky. Welfare Rts. Org., 426 U.S. 26, 41-42 (1976)). The Supreme Court has held that plaintiffs attempting to show causation generally cannot “rely on speculation about the unfettered choices made by independent actors not before the courts.” Clapper v. Amnesty Int‘s USA, 568 U.S. 398, 415 n.5 (2013) (quotation marks omitted); see also Bennett v. Spear, 520 U.S. 154, 168-69 (1997). Therefore, the plaintiff must show that the “third parties will likely react in predictable ways” that in turn will likely injure the plaintiffs. California v. Texas, 593 U.S. 659, 675 (2021) (quoting Dep‘t of Com. v. New York, 588 U.S. 752, 768 (2019)).
Plaintiffs argue that their injury is directly traceable to the Defendants’ actions—specifically, the issuance of memoranda by the DoD and GSA removing the mandatory inclusion of the PLA requirement on large-scale construction projects. Pls.’ Reply at 10-11. Plaintiffs argue that this policy shift altered the bidding process and weakened Plaintiffs’ bargaining position, as contractors were no longer required to negotiate PLAs with unions.
Plaintiffs have sufficiently demonstrated that their injuries are “fairly traceable” to Defendants’ issuance of the memoranda because those injuries are not the result of “the independent action of some third party not before the court,” but rather flow in a direct and predictable manner from the challenged policy change. Lujan, 504 U.S. at 561 (cleaned up). Plaintiffs do not rely on speculative predictions about contractor behavior; instead, they identify a specific instance where a contractor ceased negotiating PLAs immediately after the issuance of the DoD and GSA memoranda. Pls.’ Reply at 11. And this is a natural and probable consequence of the elimination of a requirement that solicitations must include a mandate to negotiate PLAs. This pattern of conduct illustrates that third parties reacted in “predictable ways” to the removal of the mandatory PLA requirement, satisfying the traceability standard articulated in California v. Texas and Department of Commerce v. New York. While Defendants argue that the causal chain is broken by the independent decision-making of contractors, Plaintiffs have shown a “predictable chain of events leading from the government action,” here, the purported revocation of the PLA requirements, “to the asserted injury,” the contractors choosing not to negotiate PLAs now that they are no longer required to do so. See FDA v. All. for Hippocratic Med., 602 U.S. 367, 385 (2024). Because Plaintiffs have shown that the policy shift foreseeably and materially weakened their bargaining position within the federal contracting framework, they sufficiently demonstrated the traceability requirement.
3. Redressability
The third requirement to establish standing is a showing that the plaintiff‘s injury will likely be redressed by a favorable decision by the Court. See Lujan, 504 U.S. at 561. To satisfy the redressability requirement for injunctive relief, a plaintiff must show it is “likely, as opposed to merely speculative,” that a favorable court decision will remedy their injury, see
Plaintiffs argue that their injuries—loss of bargaining leverage in negotiating PLAs due to the challenged memoranda
Plaintiffs have sufficiently demonstrated redressability by establishing that their asserted injury—diminished bargaining leverage in negotiating PLAs—is likely to be remedied by the relief sought. While Defendants argue that agency discretion breaks the causal chain, the Supreme Court has made clear that redressability does not require plaintiffs to demonstrate certainty or eliminate all hypothetical alternatives. Massachusetts v. EPA, 549 U.S. 497, 518 (2007) (noting that plaintiffs “ha[ve] standing if there is some possibility that the requested relief will prompt the injury-causing party to reconsider the decision that allegedly harmed the litigant“) (emphasis added). Plaintiffs have identified a specific injury caused by the removal of the EO‘s presumption in favor of PLAs and have shown that vacating the memoranda and enforcing the EO would likely restore the procedural framework that enhanced their bargaining position. This is sufficient under the standard articulated in Lujan, which requires only that a favorable decision be “likely, as opposed to merely speculative,” to redress the alleged harm. See 504 U.S. at 561 (internal quotation marks omitted); see also Nat‘l Wildlife Fed‘n, 839 F.2d at 705 (recognizing that a plaintiff “need not show to a certainty” that relief will redress the injury). Here, an order setting aside the memoranda would re-establish the “bargaining chip” thаt the EO provides the unions, realigning the agencies and the contractors’ conduct with the EO‘s presumption, and thereby enhancing Plaintiffs’ ability to secure PLAs in future large-scale construction contracts. This is not a request for speculative third-party action, but a direct challenge to official action that, if rescinded, would likely restore the prior policy environment under which Plaintiffs previously had greater leverage—making their injury redressable under prevailing precedent.
B. Likelihood of Success of Plaintiffs’ APA Claims
Having established Plaintiffs’ standing to raise the claims in this case, the Court turns to their substantive APA claims. The Court begins with the “most important factor” in its preliminary injunction analysis: whether Plaintiffs have demonstrated a “likelihood of success on the merits.” Aamer v. Obama, 742 F.3d 1023, 1038 (D.C. Cir. 2014). The Court concludes that Plaintiffs are likely to succeed on the merits of their APA claims because Defendants’ memoranda are not in accordance with the law, as they deviated from the requirements of the EO without providing adequate justification or following the proper exception process.
1. Final Agency Action
As a preliminary matter, Defendants argue that the challenged memoranda are not final agency actions subject to judicial review. Defs.’ Opp‘n at 16-19. According to Defendants, the memoranda are intermediate steps that merely direct future actions, such as amending or omitting PLA requirements in solicitations for large-scale construction projects, which solicitations are themselves the final agency actions.
It is well established that under the APA, “a court may not review a non-final agency action.” Conservation Force v. Salazar, 919 F. Supp. 2d 85, 89 (D.D.C. 2013); see also Holistic Candlers & Consumers Ass‘n v. FDA, 664 F.3d 940, 943 (D.C. Cir. 2012) (“The APA . . . only provides a right to judicial review of ‘final agency action for which there is no other adequate remedy in a court.‘” (quoting
In evaluating the first Bennett prong, the Court will consider whether the action is “informal, or only the ruling of a subordinate official, or tentative.” Abbott Lab‘ys v. Gardner, 387 U.S. 136, 151 (1967) (citations omitted). The decisionmaking processes set out in an agency‘s governing statutes and regulations are key to determining whether an action is properly attributable to the agency itself and represents the culmination of that agency‘s consideration of an issue. See Holistic Candlers, 664 F.3d at 944 (relying upon the FDA Manual‘s description of warning letters as preceding enforcement action to conclude they “do not mark the consummation of FDA‘s decisionmaking“); Reliable Automatic Sprinkler, 324 F.3d at 732-33 (holding a letter interpreting a safety regulation was not a final agency action because “the Commission itself ha[d] never considered the issue,” and “[t]he Act and the agency‘s regulations clearly prescribe a scheme whereby the agency must hold a formal,
The Court concludes that Plaintiffs have alleged facts sufficient to demonstrate that Defendants’ memoranda constitute final agency action within the meaning of the APA. First, with respect to Bennett‘s requirement that the action “marks the consummation of the agency‘s decision making process,” see Conservation Force, 919 F. Supp. 2d at 89, the memoranda issued by DoD and GSA are plainly not tentative or preliminary. Rather, they are the agencies’ definitive and authoritative positions on the requirement (or now, the lack thereof) for PLAs in their respective procurement processes. The DoD memorandum directs that, “[e]ffective immediately, contracting officers shall not use project labor agreements for large-scale construction projects,” and further instructs officials to “remove [PLA] requirements, including any solicitation provisions.” See DoD Mem.; see also Pls.’ Reply at 12-13. This is not an invitation for further deliberation, nor does it permit agency officials discretion to apply the prior PLA policy on a case-by-case basis. Similarly, the GSA memorandum announces a categorical policy shift exempting an entire class of projects—LPOE projects—from the PLA requirement, concluding that PLAs would not advance the government‘s efficiency goals for such projects. GSA Mem. at 1-3; see also Pls.’ Mot. at 16. These memoranda are thus not intermediate steps in a broader deliberative process; they are final instructions that implement a binding policy and preclude further consideration at the individual solicitation level, absent discrete exceptions. This is the agencies “last word” on the matter, as confirmed by Defendants’ own acknowledgment that the memoranda “announce that the agencies intend not to require PLAs in future solicitations.” See Defs.’ Opp‘n at 10. Courts have consistently recognized such actions as final under Bennett. See Mass. Coal. for Immigr. Refоrm v. DHS, 621 F. Supp. 3d 84, 101 (D.D.C. 2022) (memorandum constituted final agency action); see also Nat. Res. Def. Council v. EPA, 643 F.3d 311, 320 (D.C. Cir. 2011) (finding an EPA guidance document that bound officials to a specific approach qualified as final agency action).
Second, under Bennett‘s requirement that the action “affects the rights or obligations or the legal consequences of the party seeking review,” see Conservation Force, 919 F. Supp. 2d at 89 (cleaned up), the memoranda have a direct and appreciable impact on legal obligations and practical rights. By eliminating the requirement that bidders on DoD and GSA projects negotiate PLAs, the memoranda alter the legal framework established by the EO, which mandated that agencies include the PLA requirements on solicitations for large-scale projects absent a project-
specific exception. The memoranda functionally nullify that mandate in broad swaths of the agencies’ procurement activity—a legal and regulatory shift that has substantial effects. For contractors, the memoranda strip them of the necessity to negotiate PLAs for theMoreover, the practical implementation of these memoranda confirms their legal effect. Plaintiffs have submitted declarations showing that actual solicitations—including those for the Marine Barracks project in D.C. and the USDA Dairy Forage Research Center in Wisconsin—were amended in reliance on the memoranda to remove PLA requirements. See, e.g., McGarvey Decl. ¶ 16; Akerman Decl. ¶ 10. Contractors ceased PLA negotiations, and unions like NABTU lost opportunities to engage with bidders under the framework contemplated by the EO. McGarvey Decl. ¶ 16. These changes are not hypothetical or speculative; they have already materialized and produced a direct and adverse impact on Plaintiffs’ interests. This distinguishes the memoranda from the nonbinding guidance at issue in Southern California Alliance of Publicly Owned Treatment Works v. EPA, 8 F.4th 831, 837 (9th Cir. 2021) cited by Defendants, where no concrete consequences flowed from the guidance itself. Here, by contrast, the memoranda use imperative language, compel changes to active solicitations, and eliminate mandatory contractual conditions. As in Nat‘l Park Serv.” docket=“19-cv-3629” cite=“2021 WL 1198047” pinpoint=“*8” court=“D.D.C.” date=“2021-03-30“>Public Employees for Environmental Responsibility v. National Park Service, No. 19-cv-3629, 2021 WL 1198047, at *8 (D.D.C. Mar. 30, 2021), where a National Park Service directive regarding e-bikes was found final because it imposed binding requirements on park officials, the DoD and GSA memoranda likewise impose immediate obligations on agency officials and reshape the legal landscape for affected stakeholders.
The Court finds that both prongs of the Bennett test are satisfied. The memoranda are final agency actions because they (1) constitute the culmination of DoD and GSA‘s decision-making regarding PLA requirements and (2) carry binding legal consequences that alter rights, obligations, and economic relationships between the agencies, contractors, and labor organizations. As such, the Court finds that judicial review under the APA is appropriate.
2. Accordance with the Law
Having established that the issuance of the memoranda constitutes final agency action subject to APA review, the Court turns to the substantive APA claims. Plaintiffs argue that the DoD and GSA violated the APA by issuing memoranda that contradict the EO. Pls.’ Mot. at 17–20; Pls.’ Reply at 16–18. Plaintiffs contend that, instead of following the major contract solicitation process mandated by the EO, the agencies implemented sweeping class deviations or exceptions that effectively nullify the PLA requirement across all future projects, in direct conflict with the EO‘s plain language and implementing regulations. Pls.’ Mot. at 17–20. Plaintiffs further argue that the justifications offered by Defendants for their sweeping class deviations—such as the potential for bid protests or labor market concerns—do not satisfy the stringent exception criteria outlined in the EO or the
Defendants also contend that the DoD memorandum is not arbitrary and capricious because it was issued in response to an urgent need to prevent significant delays in future large-scale projects, citing recent legal decisions and market research. Id. at 21–22. Finally, Defendants emphasize that the EO is not judicially enforceable, further undercutting Plaintiffs’ claims. Id. at 21 n.3. Again, Plaintiffs have the stronger argument.
Under the APA, courts must “hold unlawful and set aside agency action” that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,”
Agencies are bound to follow binding executive orders unless rescinded or overridden through lawful procedures. See Ass‘n for Women in Sci. v. Califano, 566 F.2d 339, 344 (D.C. Cir. 1977); see also Allbaugh, 295 F.3d at 33. In this context, the EO is akin to a regulation. See League of United Latin Am. Citizens v. Exec. Off. of the President, 2025 WL 1187730, at *18 (D.D.C. Apr. 24, 2025) (“Some executive orders, like legislative rules, purport to create binding, enforceable obligations on their own.” (intеrnal citation omitted)). Evaluating a claim that agency action is contrary to law, then, necessarily involves interpreting the language of the EO. As when interpreting regulations, the “court must exhaust all the traditional tools ofconstruction“—considering the law‘s “text, structure, history, and purpose.” Kisor v. Wilkie, 588 U.S. 558, 575 (2019) (internal quotations marks omitted).
The Court finds that the memoranda are contrary to the law set forth in the EO because they flatly contradict the unambiguous requirements of the EO and its implementing regulations, in direct violation of the APA. Under
These set of facts are analogous to those found in National Wildlife Federation v. Morton, 393 F. Supp. 1286 (D.D.C. 1975), where the Bureau of Land Management‘s broad designation of open land for off-road vehicle (“ORV“) use, made without regard to the specific criteria mandated by an executive order, was found to be not in accordance with law. Id. at 1292. Like the blanket ORV access conditions that were
Further, the memoranda are legally impermissible under the
The Ninth Circuit‘s analysis in City & Cnty. of San Francisco v. Trump, 897 F.3d 1225 (9th Cir. 2018) further confirms this Court‘s conclusion. In City & County of San Francisco, the Department of Justice attempted to mitigate the legal consequences of a judicial injunction by issuing a memorandum that effectively neutralized a binding executive order penalizing sanctuary cities. Id. at 1240–41. The circuit court rejected this post hoc effort to rewrite the law, holding that agencies may not “render[] the Executive Order a toothless threat” by adopting interpretations inconsistent with its plain terms. Id. Similarly, here, DoD and GSA cannot sidestep the EO‘s prescriptive PLA mandate through internal memoranda that fundamentally alter its legal effect.
Finally, Defendants’ reliance on the MVL USA, Inc. v. United States, 174 Fed. Cl. 437 (Fed. Cl. 2025) decision is misplaced. The MVL USA holding was limited to the specific procurements before the Court of Federal Claims, and it expressly stated that its conclusions didnot apply to unrelаted solicitations. MVL USA, 174 Fed. Cl. at 441, 463 (limiting the court‘s holding to “the functionality of the mandate as applied to the individual contracts in this case” and to “FAR requirements [for PLAs] in the solicitations . . . as applied to the contracts at issue here” (emphases added)). Indeed, in a decision on the request for reconsideration of a bid protest decision, the Government Accountability Office reaffirmed this limited scope, finding that MVL‘s analysis was nonbinding on future procurements. Decision at 4, 4K Global-ACC JV, LLC, B-423092.2 (Comp. Gen. Apr. 11, 2025), available at https://www.gao.gov/assets/880/876975.pdf (“In any event, even if we were to accept that the MVL USA court‘s interpretation of the PLA requirements had any bearing on our Office‘s review of a protest challenging an agency‘s PLA evaluation, nothing in the court‘s decision indicates that its interpretation would apply to the award here.“). Thus, Defendants cannot rely on MVL USA as justification for wholesale noncompliance with the EO.
C. Irreparable Harm
Moving to the next prong of the preliminary injunction analysis, Plaintiffs argue that, absent a preliminary injunction, they will suffer irreparable harm because Defendants‘memoranda obstruct their ability to negotiate and implement PLAs for large-scale construction projects. Pls.’ Mot. at 21–23. The Supreme Court has cautioned that a district court vacating an agency action under the APA should not issue an injunction unless doing so would “have [a] meaningful practical effect independent of its vacatur.” Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 165 (2010). This is because “[a]n injunction is a drastic and extraordinary remedy, which should not be granted as a matter of course” or where “a less drastic remedy . . . [is] sufficient to redress” the plaintiffs’ injury. Id. Beginning with irreparable harm—and for the additional reasons set forth below—the Court finds that the Plaintiffs have independently demonstrated that an injunction is necessary to secure the relief to which thеy are entitled.
Plaintiffs argue that the memoranda have already disrupted ongoing and potential PLA negotiations, causing lasting damage to collective bargaining relationships. Pls.’ Mot. at 21–23. They contend that without injunctive relief, this harm will continue and cannot be reversed once contracts are awarded. Id. In response, Defendants reiterate many of their arguments on standing, claiming that Plaintiffs cannot demonstrate irreparable harm because their alleged injury is speculative, not imminent, and not directly caused by the challenged DoD and GSA memoranda. Defs.’ Opp‘n at 23–24. Defendants reason that the memoranda do not bar Plaintiffs from negotiating PLAs since such decisions lie with prospective contractors. Id.
The Court finds that Plaintiffs have also made a sufficient showing of irreparable harm. In order to demonstrate irreparable harm, a plaintiff must demonstrate that its alleged injury is “certain and great, actual and not theoretical, and so imminent that there is a clear and present need for equitable relief.” League of Women Voters of U.S. v. Newby, 838 F.3d 1, 7–8 (D.C. Cir. 2016) (cleaned up). The “possibility” of irreparable harm is not enough. See Winter, 555 U.S. at 22. The moving party must demonstrate “a clear аnd present need for equitable relief to preventirreparable harm.” Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297 (D.C. Cir. 2006) (internal quotation marks omitted). The Court has already concluded that Plaintiffs have established a substantial likelihood that they face an injury that is imminent enough to provide them with the legal right to file an action in federal court alleging that Defendants have violated the APA. Therefore, the Court‘s assessment of whether Plaintiffs have shown that they are likely to face irreparable harm absent a preliminary injunction will focus first on
Plaintiffs have sufficiently shown that without declaring that the memoranda are unlawful and an injunction to prevent their enforcement, imminent harm is unavoidable. The harm at issue is not speculative or remote; rather, it is concrete, immediate, and directly traceable to the issuance of Defendants’ memoranda. First, this kind of injury squarely meets the requisite irreparable harm standard because Plaintiffs’ harm is certain and great, actual, and imminent. See League of Women Voters, 838 F.3d at 8. Plaintiffs have sufficiently dеmonstrated that they are currently experiencing concrete disruptions in PLA negotiations—disruptions that are traceable to agency action and not within the Plaintiffs’ control to remedy. Defendants’ argument that the harm is speculative overlooks the fact that the PLA mandate functioned as a bargaining lever. Its removal changes the entire negotiating landscape, leaving NABTU and its affiliates in a substantially weakened position that undermines their statutory and contractual role in large-scale federal construction projects.
Moreover, the D.C. Circuit has repeatedly recognized that interference with collective bargaining rights constitutes irreparable harm. In O‘Donnell Constr. Co. v. District of Columbia, 963 F.2d 420, 428–29 (D.C. Cir. 1992), the court acknowledged the unique and irreversiblenature of harms associated with the procurement process—once a contract is awarded without the application of a PLA, neither the opportunity to negotiate nor the benefits conferred by such agreements can be retroactively imposed. This principle reinforces the irreparability of the injury in this case: once solicitations are amended and contracts awarded, Plaintiffs’ opportunity to influence project labor conditions vanishes.
Plaintiffs also cite to Arcamuzi v. Cont‘l Air Lines, Inc., 819 F.2d 935, 938 (9th Cir. 1987), which underscores the principle that harm to the collective bargaining process itself is irreparable. The Court agrees. The loss of bargaining power, particularly the mandated context within which such bargaining historically occurred under the EO, cannot be restored through damages or later litigation. This aligns with Fox Television Stations, Inc. v. FilmOn X LLC, 966 F. Supp. 2d 30, 50 (D.D.C. 2013), where damage to ongoing contractual relationships was found to support injunctive relief. Here, Plaintiffs show not only lost opportunities on specific projects, but also a broader chilling effect on contractor willingness to engage in future PLA negotiations, disrupting established and economically significant union-contractor relationships. See, e.g., McGarvey Decl. ¶ 16; Akerman Decl. ¶ 10.
The Court also finds that Defendants’ failure to persuasively dispute that the elimination of the PLA mandate weakens Plaintiffs’ bargaining position only underscores Plaintiffs’ showing of irreparable harm. Courts have found that diminished negotiating leverage—especially where it stems from unlawful or procedurally flawed government action—constitutes a harm that is both “actual” and “beyond remediаtion.” League of Women Voters, 838 F.3d at 8. Accordingly, the facts presented by Plaintiffs demonstrate irreparable harm and support the conclusion that a preliminary injunction is necessary to prevent further injury that cannot be undone through post hoc judicial remedies. Because the removal of the PLA mandate has already interfered withspecific negotiations and threatens NABTU and its affiliates’
D. Balance of Equities and Public Interest
The final two factors—balancing the equities and the public interest—also support granting the preliminary injunction. Plaintiffs argue that enjoining the challenged memoranda serves the public interest because it ensures agency compliance with the APA and prevents enforcement of an unlawful, arbitrary directive. Pls. Mot. at 23. They emphasize that they are not asking the Court to mandate the use of PLAs or issue a generalized “obey the law” injunction. Pls.’ Reply at 24. Instead, Plaintiffs seek a specific injunction prohibiting Defendants from enforcing memoranda that override the binding EO, and they assert that Defendants would still retain discretion to grant exceptions under the EO on a case-by-case basis. Id. Defendants сounter that the balance of equities favors the government because Plaintiffs face no real injury, while an injunction would improperly restrict procurement officers’ discretion and disrupt lawful government operations. Defs.’ Opp‘n at 24–25.
When assessing the equities and public interest factors, courts “balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief.” Winter, 555 U.S. at 24. If the movant seeks to enjoin the government, the final two factors merge “because the government‘s interest is the public interest.” Pursuing Am.‘s Greatness v. Fed. Election Comm‘n, 831 F.3d 500, 511 (D.C. Cir. 2016). “There is generally no public interest in the perpetuation of unlawful agency action.” League of Women Voters, 838 F.3d at 12. In contrast, “there is a substantial public interest in having governmental agencies abide by the federal laws that govern their existence and operations.” Id. (internal quotation marks omitted).
Applying these principles here, the equities and public interest both favor an injunction. An injunction ensures that Defendants abide by the procedural and substantive requirements of the EO and the APA and halts any unlawful action in implementing memoranda that effectively nullify the EO‘s mandate. Defendants’ claimed harm—reduced flexibility in procurement discretion—is minimized where the EO already permits case-by-case exemptions, which Plaintiffs do not seek to eliminate. Thus, the requested injunction does not constrain lawful discretion but merely prevents the enforcement of an unlawful categorical exclusion.
Importantly, Plaintiffs are not seeking to compel agency action unlawfully withheld or to substitute the Court‘s judgment for agency expertise; they are simply seeking to preserve the status quo as defined by a duly issued Executive Order until the legality of the new memoranda is fully adjudicated. This is precisely the type of limited, specific injunctive relief the courts have authorized to maintain legal compliance without overstepping judicial boundaries. See United States v. Philip Morris USA Inc., 566 F.3d 1095, 1137 (D.C. Cir. 2009) (distinguishing enforceable, specific injunctions from improper “obey the law” directives).
Preserving fairness and accountability in governance serves the public interest. Therefore, the final two factors warrant injunctive relief.
E. Scope and Implementation of Injunctive Relief
1. Vacatur as the Appropriate Remedy
When a rule is contrary to law, the “ordinary practice is to vacate” it. United Steel v. Mine Safety & Health Admin., 925 F.3d 1279, 1287 (D.C. Cir. 2019); see also
2. Waiver of Bond Requirement
Finally, the Court will not require a bond. Under
Requiring security in this case would serve no meaningful purpose, as Defendants have not sufficiently demonstrated any likelihood of suffering costs or damages if they are later found to have been wrongfully enjoined. Defendants have failed to identify any tangible financial harm—let alone quantifiable costs—they would incur as a result of being temporarily restrained from enforcing the challenged policy. In cases where the government is the enjoined party and no concrete economic injury is established, as is the case here, courts routinely waive the bondrequirement. See, e.g., P.J.E.S., 502 F. Supp. 3d at 520. Moreover, imposing a bond could unduly burden Plaintiffs and potentially impair their ability to seek judicial relief, a concern that courts have repeatedly recognized in declining to require bonds in public interest litigation. See id.; Nat‘l Council of Nonprofits, 2025 WL 597959, at *19. The same rationale applies here. Where the risk of financial harm is speculative at best and where a bond would have a chilling effect on access to justice, the balance of equities firmly supports waiving the bond. As such and consistent with this Court‘s broad discretion under Rule 65(c), no bond will be required.
VI. CONCLUSION
For the foregoing reasons, the Court grants Plaintiffs’ motion for preliminary injunction. An order consistent with this Memorandum Opinion is separately and contemporaneously issued.
Dated: May 16, 2025
RUDOLPH CONTRERAS
United States District Judge