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21 “These employees have lost the ability to bargain collectively at a time when it matters the most, as the Administration continues to make significant, ongoing changes to employees’ working conditions and employment.” –POPA/NWSEO motion
On October 24, the National Weather Service Employees Organization (NWSEO) and the Patent Office Professional Association (POPA) filed a motion for a preliminary injunction in the U.S. District Court for the District of Columbia, alleging that Executive Orders Nos. 14,251 and 14,343 unlawfully threaten employees’ rights to organize and bargain collectively, not on the basis of “legitimate ‘national security’ issues,” but to retaliate against unions such as NWSEO and POPA for their efforts to represent employees.
The unions are asking the court to enjoin the application and enforcement of the executive orders while the case is litigated and requested a hearing for November 13.
Unions ‘Fight Back’ Against Administration Policies
POPA, the union that has represented patent examiners and other professionals at the U.S. Patent and Trademark Office (USPTO) since 1964, filed its official complaint against the Trump Administration , following a pre-Labor Day Executive Order (EO) that effectively bars USPTO patents employees from joining the union.
The Order, titled “Further Exclusions from the Federal Labor-Management Relations Program,” purports to be aimed at enhancing national security.
National Security Arguments Challenged
The unions argued in their preliminary injunction motion that President Donald Trump “exceeded the discretion granted to him” under 5 U.S.C. § 7103(b), and asserted that “this unlawful conduct threatens to eliminate the rights to organize and bargain collectively, not because of any legitimate ‘national security’ issues, but to retaliate against unions, like NWSEO and POPA, for their efforts to represent these employees.”
The National Weather Service Organic Act of 1890 defines the NWS’s primary functions as providing weather forecasts “for the benefit of agriculture, commerce, and navigation,” with no mention of national security. A declaration from former NOAA Administrator Dr. Richard Spinrad stated that “the services which the NWS provides the U.S. military are the same as what the NWS provides to the public. Nothing exclusive is provided.”
Regarding the USPTO, the motion stated that “the USPTO does not assess whether the release of patent applications could harm national security.” The screening of patent applications for referral to defense agencies is an ancillary duty of just 25 patent examiners of the nearly 9,000 examiners employed by the USPTO, who spend little more than two minutes per application to determine whether a particular patent application warrants referral. Only about 50 of the 600,000 patent applications received each year are ultimately subject to a secrecy order.
Former Commissioner of Patents Robert Stoll stated in a declaration that “intelligence, counterintelligence, investigative, or national security work” is not “a primary function” of the Office of the Commissioner of Patents and that administration of the USPTO’s responsibilities under the Invention Secrecy Act “involves only a few dozen of the 10,000 or so employees who work in that Office and is a minor part of its responsibilities.”
Retaliation Claims
The unions alleged that the executive orders constituted unlawful retaliation for exercising their First Amendment rights and that the “POPA and NWSEO bargaining units were not included among the first tranche of exemptions in the March Executive Order but were excluded after they engaged in robust opposing to the Defendants’ policies, evinces that national security concerns were not the motivation for their exclusion.”
The unions pointed to a White House Fact Sheet issued with the March executive order, which stated that “certain Federal unions have declared war on President Trump’s agenda” and that “President Trump supports constructive partnerships with unions who work with him” while warning that “he will not tolerate mass obstruction that jeopardizes his ability to manage agencies with vital national security missions.”
The motion further noted that on April 17, Department of Veterans Affairs (VA) Secretary Collins restored collective bargaining rights to particular unions, not because continued bargaining was consistent with national security requirements, but because these unions were compliant and non-threatening to operations. “[S]pecial treatment of favored unions ‘offers further evidence of a retaliatory motive,’” added the motion.
Irreparable Harm Arguments
The motion argued that the exclusion of employees from the labor-management relations statute inflicts immediate, irreparable harm, and that “these employees have lost the ability to bargain collectively at a time when it matters the most, as the Administration continues to make significant, ongoing changes to employees’ working conditions and employment.”
October 2, USPTO management notified the examining corps that it was unilaterally changing the Performance Appraisal Plan (PAP) by increasing the production quota, thereby reducing the amount of time examiners were allocated to act on each patent application to retain employment. POPA has traditionally been allowed to bargain over the impact of changes to the patent examiners’ PAP, but the USPTO terminated its discussions with POPA as a result of the Executive Order.
The motion contends that Executive Orders 14,251 and 14,343 constitute unlawful, ultra vires actions that violate the First Amendment. Accordingly, NWSEO and POPA requested that the court issue a preliminary injunction prohibiting enforcement of the executive orders in the agency divisions where the unions serve as the certified collective bargaining representatives for employees.
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Join the Discussion
21 comments so far. Add my comment.
Nobody
November 7, 2025 09:04 amAnon,
I did. Did you? Your lack of a substantive response is telling. Thank you for being so gracious in defeat.
To clarify, merely having a primary function of national security is not enough, you have to show the statute cannot be applied consistent with national security requirements and considerations.
I find your analysis wanting of the basic fundamentals of even the first clause. Is a primary function of an examiner turning on their computer? No examiner can do their job without turning on their computer. This is a front and controlling step to examination.
Why don’t we start over with the basics, can you define primary function?
Anon
November 6, 2025 04:53 pmNobody,
Did you read all the way down through my first post?
everyone groaned,
Your own analysis is found wanting. You repeat several of the mistakes that I have already addressed.
everyone groaned
November 6, 2025 12:49 amNo, nobody at the patent office – “patent”, from the Latin “patens,” meaning “lying open” – is ever screening an application for a mitten or a ladder or a golf club to see how it affects ‘national security.’ Not even for 1 (one) second. Not even a single staffer off in a corner, who is only doing so as some ancillary duty. No such ‘controlling process step’ is performed – what trolling! Maybe next you can argue whether the true ‘primary’ function at the office is unlocking the doors in the morning? Sheesh.
Even if some imagined national security analysis were to be performed on every single filing (talk about govt waste!), that wouldn’t be done by the busy, STEM&law-trained patent examiners – the union which is being busted here. This imaginary waste would still just amount to light clerical (or even automated) work, rather than any sort of POPA matter.
Virtually all patent examiners go their entire careers in this extremely public, service role without ever encountering or thinking about NatSec once. Even when Heritage Foundation saboteurs appeal in bad faith to ‘national security’, patent examiners still do not think about it. Same goes for the NWS union.
No matter how many times one **bolds** their tortured logic, even below-average judges are not interested in wasted breath from some fraud who craves abuse. Union busting is disgusting.
Nobody
November 5, 2025 10:08 pmAnon,
-Pure “on a whim” versus what I have provided below – these are very different states (both of the conversation and what that conversation reflects).-
I disagree. Your argument below is regarding what is considered a primary function. There is nothing in your arguments regarding the second clause. You even wrote yourself “how much latitude is there in the word “consideration” that falls entirely to the ‘whims’ of the President?” and then said that your analysis is different than a whim (although you never discuss the second clause).
The President has not stated what the national security considerations ARE that the president determines can’t be applied to the agency with a union. Currently, your analysis below states that there’s a primary function of national security (great, I disagree, but fine). How does that show it cannot be applied consistent with that statute?
Can the President point to anything in there that cannot be done with the union involved other than “determining” it? What are the “considerations”?
It appears that you believe the statute has been fulfilled by merely filing an executive action saying the President determined that the USPTO runs afoul of the requirements. I do not.
Here’s what we get from the Executive Order
“Section 1. Determinations. The agencies and agency subdivisions set forth in section 2 of this order are hereby determined to have as a primary function intelligence, counterintelligence, investigative, or national security work. It is also hereby determined that Chapter 71 of title 5, United States Code, cannot be applied to these agencies and agency subdivisions in a manner consistent with national security requirements and considerations.”
That’s it. Is that all we need? It seems to me that you believe, yes, that’s it. The President determined it, we’re done. Nothing in your analysis leads me to believe that you think anything else. Feel free to enlighten me if I’ve missed something where you talked about the President needing more than a whim to determine that the provisions cannot be applied consistent with national security interests and considerations.
Anon
November 5, 2025 03:15 pmThanks Nobody,
So you admit to “consideration” being both present and broad. I also appreciate your stepping back from the “well, history has always…” point.
How broad appears to be the ‘issue’ then.
Pure “on a whim” versus what I have provided below – these are very different states (both of the conversation and what that conversation reflects).
Clearly – or perhaps the issue is not so clearly – the statute is able to be read for my points. I do “get” that you would prefer a different reading. My points do not make the statute useless and my points do not reach a state of pure whim.
No blank checks necessary to reach the conclusion you do not like.
Curious
November 5, 2025 02:58 pmBut that’s just not how the law works.
I’m sorry, something that takes up probably less than 0.1% of the USPTO’s time is not a PRIMARY function of the USPTO. You want to provide a definition of “primary function”?
I suspect that several here have never dealt with National Security matters.
I’ve worked as an engineer on (very high profile) military equipment, which required security clearances. I’ve prepared patent applications coming out of one of the national laboratories (that clearly had security implications). Regardless, having experience dealing with national security matters is irrelevant to the points being debated.
What is obvious is that the current administration is engaged in overreach in an attempt to remove union representation of government employees. These actions were not made because of some national security concerns — rather, these actions were just one step (of many) intended to make it easier for this administration to gut the federal workforce.
One can see, in the interests of national security, a need to prevent collective bargaining from interfering with the operations involving national security. However, that need was explicitly limited by Congress to those agencies whose “primary function” involves “intelligence, counterintelligence, investigative, or national security work.” Primary function is not incidentally touching upon.
Nobody
November 5, 2025 12:16 pmI’d say the statute does provide the president a decent amount of deference, but it’s not a blank check. History isn’t dispositive, but I think it’s something that favors POPA. Currently, all we have from the administration is an executive order.
If you want to go down that route of national security “considerations” being subject to the whim of the president, the whole statute is moot.
You really could wipe out any public union at all because it’s whether the president “determines” the primary function is X. The president could “determine” the USPTO’s (or FDA, USDA, whatever he chooses) primary function is counterintelligence.
Clearly the statute is attempting to limit the power of the president, reading it only depend on the whims of the president would not do that.
I don’t know the standard requirement but I think there would need to be SOME evidence of what “considerations” related to national security that can’t be done with a union involved.
There’s a reason this statute exists, reading it to defer entirely to the president makes it useless.
Anon
November 5, 2025 09:31 amNobody,
Good add – thank you.
One quick question: how much latitude is there in the word “consideration” that falls entirely to the ‘whims’ of the President?
I get your point about wanting to rely entirely on history, but history is not controlling, now is it (not with the plain meaning of dependence on the President’s consideration)?
Nobody
November 4, 2025 12:38 pm(b)(1) The President may issue an order excluding any agency or subdivision thereof from coverage under this chapter if the President determines that–
(A) the agency or subdivision has as a primary function intelligence, counterintelligence, investigative, or national security work, AND
(B) the provisions of this chapter cannot be applied to that agency or subdivision in a manner consistent with national security requirements and considerations.
I would argue that the USPTO does not have as a PRIMARY function, national security work. Yes, it does have a function, but I’d argue time, resources, and money allocated to that function will tell you if it a primary one. In the USPTOs case it is minuscule, thus not primary.
Even IF it’s considered a primary function, it should fail under the second clause. There is no way that someone can say that the provisions cannot be applied in a manner consistent with national security requirements and considerations. It’s been happening since 1964. The administration will need to say why it can’t be applied consistent with network security interests. Based on what I’ve seen, they should clearly fail here.
Anon
November 4, 2025 09:47 amI suspect that several here have never dealt with National Security matters.
I will share that I have.
Anon
November 3, 2025 07:35 pmCurious,
I “get” you want a (one single) different “primary” function.
But that’s just not how the law works.
Curious
November 3, 2025 04:02 pmthe patent office does – in fact – serve a vital national security role as a front and controlling process step.
Read the law. Touching upon security is NOT ENOUGH. It must be a PRIMARY FUNCTION of the agency — not a secondary or tertiary function.
The primary function of the USPTO is to “be responsible for the granting and issuing of patents and the registration of trademarks” and “be responsible for disseminating to the public information with respect to patents and trademarks.” 35 USC 2(a).
The “Power and Duties” of the USPTO are outlined in 35 USC 2 — none of which refer to security matters. Notably, the USPTO is under the Department of Commerce — not the Department of Defense. While this is certainly not dispositive, it should be very informative as to the “primary function” of the USPTO.
Not a single application is allowed to bypass that critical step.
The process (or portions thereof) being performed by the agency is not the deciding factor under 5 U.S.C. § 7103(b)(1).
I do get that such is one step – but as not a single application is permitted to not adhere to that, it is clearly a de facto primary aspect.
Primary aspect of what? Again, stick with the definition that the law provided.
Anon
November 3, 2025 09:07 amJudge Dred,
Thank you for adding a piece of meaningful law into the discussion.
That being said, your conclusion does not follow from that piece of law.
First, that section is constrained to “in which the Government has a property interest…” (other rules and sections of laws have other impacts – this points to the error of presuming “only one” section of the government can have a pertinent type of national security function).
Second, that section of law does not control the fact that all applications (every single one) must be evaluated by the Office under BIS/EAR and foreign filing license protocols.
No exceptions.
Certainly, specific actions by others than the Patent Office can be invoked without changing the fact that it is a primary duty of the Patent Office to safeguard national security by way of what inventions may or may not compromise that security for information that the Patent Office becomes aware of.
There is no “only this part of the government” that precludes many parts from having critical national security functions.
Judge Dred
October 31, 2025 03:51 pmThe fact that the Office does not have the power to make a final natsec determination (35 USC 181) indicates natsec is not a primary function. The 25 are merely the postman.
Anon
October 31, 2025 10:05 amCurious,
The agency – as a whole – reinforces my point.
Not a single application is allowed to bypass that critical step.
Not a one. And there is zero basis for any exception – be it applicant based or otherwise.
Yes, I do get that such is one step – but as not a single application is permitted to not adhere to that, it is clearly a de facto primary aspect.
Anon
October 31, 2025 10:02 amTo (different) Anon,
” However, it does matter how many examiners are making that decision. ”
No. No it does not matter at all just how many examiners are making that decision and that statement absolutely misses the point that the patent office does – in fact – serve a vital national security role as a front and controlling process step.
Secondary steps – and granted here, the bulk of examination – being done after the national security screen has no bearing on whether or not that critical role is played.
Anon
October 31, 2025 10:02 amTo (different) Anon,
” However, it does matter how many examiners are making that decision. ”
No. No it does not matter at all just how many examiners are making that decision and that statement absolutely misses the point that the patent office does – in fact – serve a vital national security role as a front and controlling process step.
Secondary steps – and granted here, the bulk of examination – being done after the national security screen has no bearing on whether or not that critical role is played.
Curious
October 31, 2025 09:55 amIt is not a matter of how many are “ultimately subject to a secrecy order, but rather, it is that every application is subject to the screening.
I think this comment misses the mark. The issue isn’t how many applications are being reviewed — rather it is the characterization of the work being performed by the agency as a whole.
5 U.S.C. § 7103(b)(1) reads “The President may issue an order excluding any agency or subdivision thereof from coverage under this chapter if the President determines that– (A) the agency or subdivision has as a primary function intelligence, counterintelligence, investigative, or national security work.”
When the work is the ancillary duty of 25 patent examiners out of nearly 9,000, then I don’t think it is reasonable to say that the work being performed is a “primary function” of the USPTO. The fact that ALL applications are screened does not make it a “primary function.” We are talking less than 1% of the Examiners are involved in this function and probably less than .1% of the USPTO’s work hours are devoted to this function. It is NOT a “primary function” — a “function” yes. Primary no.
Anon
October 30, 2025 05:03 pmYou are correct that it doesn’t matter how many patents are ultimately subject to a secrecy order. However, it does matter how many examiners are making that decision. 8975 examiners aren’t involved at all in that decision. They should be denied union representation because 25 screen new, potentially secret applications?
Post
October 30, 2025 02:32 pmIf there are 50 spam emails out of 600,000 emails a workforce receives, we don’t consider emails to pose a significant security threat. Yes, continue with the anit-spam measures already in place regardless, but to declare it a major threat and make significant policy changes (axing the union) that adversely affect the workforce is misleading if not a ruse for ulterior motives.
Anon
October 29, 2025 02:55 pmI think that this: “Regarding the USPTO, the motion stated that “the USPTO does not assess whether the release of patent applications could harm national security.” The screening of patent applications for referral to defense agencies is an ancillary duty of just 25 patent examiners of the nearly 9,000 examiners employed by the USPTO, who spend little more than two minutes per application to determine whether a particular patent application warrants referral. Only about 50 of the 600,000 patent applications received each year are ultimately subject to a secrecy order.”
misses.
It is not a matter of how many are “ultimately subject to a secrecy order, but rather, it is that every application is subject to the screening.
Let’s not forget the BIS warning – and consequence – that unless and until that National Security screen is performed, any sharing of information related to the patent application to a foreign entity risks the penalty of a void and unenforceable patent.
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