Enforcement Orders That Compel “Compliance” with a Reinstated Federal CBA Likely Modify an Injunction and Trigger Sovereign-Immunity Limits on Specific Performance

1. Introduction

In American Federation of Gov't Employees Local 2305 v. United States Department of Veterans Affairs (1st Cir. May 16, 2026), the First Circuit addressed an emergency request by the Department of Veterans Affairs (“VA”) and the Secretary of Veterans Affairs to stay two district-court orders while interlocutory appeals were pending: (i) a preliminary injunction requiring reinstatement of a Master Collective Bargaining Agreement (“CBA”) between the VA and the American Federation of Government Employees National Veterans Affairs Council (“NVAC”) (covering employees represented as well by AFGE Local 2305), and (ii) an enforcement order entered after the VA “re-terminated” the CBA.

The dispute arose after President Trump issued an executive order excluding the VA from the Federal Service Labor-Management Relations Statute (“FSLMRS”) under 5 U.S.C. § 7103(b)(1). NVAC and AFGE Local 2305 sued under the Administrative Procedure Act (“APA”) and the First Amendment, alleging that the VA’s termination of the CBA was retaliatory and arbitrary and capricious.

The core issues at the stay stage were procedural and remedial:

  • Whether the government made the “strong showing” required to stay the preliminary injunction.
  • Whether the enforcement order was (a) appealable under 28 U.S.C. § 1292(a)(1) as a “modif[ication]” of an injunction and (b) likely unlawful, especially insofar as it compelled “compliance” with the CBA under threat of contempt.
  • Whether the district court’s determination that the VA’s re-termination was unlawful was itself appealable on an interlocutory basis and should be stayed.

2. Summary of the Opinion

Applying the stay factors from Nken v. Holder, 556 U.S. 418 (2009), the First Circuit:

  • Denied a stay of the preliminary injunction reinstating the CBA, concluding the government did not make the requisite strong showing of likely success on the merits (including because key arguments were forfeited or underdeveloped).
  • Granted in part a stay of the enforcement order, but only as to the portions requiring the VA to “compl[y]” with the CBA “in both form and substance” and to continue processing pending grievances and arbitrations. The court held these directives likely modified the injunction (making them interlocutorily appealable) and that the government made a strong showing it would likely succeed—principally on sovereign-immunity/Tucker-Act limits on specific performance.
  • Denied a stay of the enforcement order’s separate determination that the VA’s re-termination letter was unlawful and “shall not be given any force or effect,” because the government failed to show that this portion itself modified the injunction or was otherwise interlocutorily appealable, and did not satisfy the stay factors as to that portion.

3. Analysis

3.1 Precedents Cited

A. The stay standard and the “strong showing” requirement

  • Nken v. Holder, 556 U.S. 418 (2009): Supplied the four-factor test and the emphasis that likelihood of success and irreparable harm are the “most critical” factors.
  • New York v. Trump, 133 F.4th 51 (1st Cir. 2025): Reinforced that a stay is an “extraordinary intervention” and framed how the First Circuit weighs the Nken factors.
  • Ind. State Police Pension Tr. v. Chrysler LLC, 556 U.S. 960 (2009) (per curiam): Used to underscore that a stay is not a matter of right even with alleged irreparable injury; equity-balancing may matter in close cases.

B. Forfeiture, briefing, and appellate procedure constraints

  • García-Navarro v. Universal Ins. Co., 173 F.4th 1 (1st Cir. 2026): The court invoked this to treat arguments not raised below as forfeited and reversible only on plain error—undercutting the VA’s new “inoperability” theory.
  • Rhode Island v. Trump, 155 F.4th 35 (1st Cir. 2025): Used twice—(i) to reject a stay theory not properly preserved and (ii) to emphasize Federal Rule of Appellate Procedure 8(a)(1)(A)’s expectation that stay grounds be presented first to the district court.
  • United States v. Casillas-Montero, 152 F.4th 306 (1st Cir. 2025): Cited for the rule that arguments raised for the first time in a reply brief are not considered.
  • United States v. Zannino, 895 F.2d 1 (1st Cir. 1990): Supported the court’s insistence on developed argumentation; perfunctory assertions are treated as waived.

C. The federal labor-law backdrop and parallel litigation

  • Ohio Adjutant Gen.'s Dep't v. Fed. Lab. Rels. Auth., 598 U.S. 449 (2023): Cited to describe the FSLMRS as a comprehensive labor-management framework administered by the FLRA.
  • Am. Fed'n of Gov't Emps. v. Trump, 148 F.4th 648 (9th Cir. 2025) (“AFGE I”) and Am. Fed'n of Gov't Emps. v. Trump, 167 F.4th 1247 (9th Cir. 2026) (“AFGE II”): The VA relied on AFGE II to challenge the district court’s inference of retaliation drawn from a White House fact sheet; the First Circuit held this did not rebut the other evidence the district court relied on (OPM guidance, selective exclusions by name, officials’ statements).

D. Interlocutory jurisdiction: enforcement vs modification of injunctions

  • New York v. Trump, 171 F.4th 1 (1st Cir. 2026): Supplied the principle that an order enforcing an injunction is appealable under 28 U.S.C. § 1292(a)(1) only if it “modifies” the injunction.
  • Hatten-Gonzales v. Hyde, 579 F.3d 1159 (10th Cir. 2009): Cited for the general rule that mere enforcement orders are not appealable under § 1292(a)(1).
  • Morales Feliciano v. Rullan, 303 F.3d 1 (1st Cir. 2002): Provided the “substantially readjusts the legal relations of the parties” test for whether an order modifies an injunction.
  • In re Fin. Oversight & Mgmt. Bd. for P.R., 52 F.4th 465 (1st Cir. 2022): Used to place the burden of establishing appellate jurisdiction on the appellant.
  • Dominguez v. Better Mortg. Corp., 88 F.4th 782 (9th Cir. 2023): Cited to reject the notion that appealability of one part of an order automatically makes all other issues in the same order reviewable.
  • Aleynikov v. Goldman Sachs Grp., Inc., 765 F.3d 350 (3d Cir. 2014): Referenced in discussing (and noting the government did not invoke) pendent appellate jurisdiction.

E. Sovereign immunity and specific performance against the federal government

  • Coggeshall Dev. Corp. v. Diamond, 884 F.2d 1 (1st Cir. 1989): Central to the partial-stay holding; cited for the principle that federal courts generally lack power to order specific performance against the United States for alleged contractual obligations.
  • American Public Health Ass'n v. National Institutes of Health, 145 F.4th 39 (1st Cir. 2025) and Puerto Rico v. United States, 490 F.3d 50 (1st Cir. 2007): Invoked by plaintiffs to argue APA/constitutional claims are not barred as contract claims; the First Circuit held these cases did not squarely answer whether, post-reinstatement, a district court can use contempt-backed orders to police each instance of compliance with CBA procedures.
  • Herbert v. Dickhaut, 695 F.3d 105 (1st Cir. 2012): Used to reject waiver where a party lacked opportunity to raise an argument (here, the sovereign-immunity objection to newly imposed “compliance” obligations).

F. Injunction stays and remedial orders

  • Dep't of Homeland Sec. v. D.V.D., 145 S. Ct. 2627 (2025): Cited for the concept that a remedial order cannot be used to enforce an injunction rendered unenforceable by a stay—explaining why a stay of the preliminary injunction would matter.
  • U.S. Philips Corp. v. KBC Bank N.V., 590 F.3d 1091 (9th Cir. 2010) and Fraihat v. U.S. Immigr. & Customs Enf't, 16 F.4th 613 (9th Cir. 2021): Cited for the proposition that when an underlying preliminary injunction falls, dependent enforcement/modification orders may fall as well.
  • Trump v. CASA, Inc., 606 U.S. 831 (2025): Cited to support granting partial stays where the government shows likely ultra vires remedial action causing irreparable harm and little countervailing harm to plaintiffs.
  • League of Women Voters v. Newby, 838 F.3d 1 (D.C. Cir. 2016): Used to articulate the public interest in agencies complying with governing federal law.
  • Gun Owners of Am., Inc. v. Barr, No. 19-1298, 2019 WL 1395502 (6th Cir. Mar. 25, 2019): Used to show how likelihood-of-success shortfalls can defeat a stay request even with claimed irreparable harm.
  • Victim Rts. L. Ctr. v. U.S. Dep't of Educ., 154 F.4th 5 (1st Cir. 2025): Cited on mootness of an administrative stay request once the merits stay motion is resolved.
  • Dist. 4 Lodge of the Int'l Ass'n of Machinists & Aerospace Workers Loc. Lodge 207 v. Raimondo, 18 F.4th 38 (1st Cir. 2021): Cited for de novo review of legal questions.

3.2 Legal Reasoning

A. Why the stay of the preliminary injunction was denied

  1. The government’s “inoperability” theory was treated as forfeited and underdeveloped. The VA’s lead appellate contention—that excluding the VA from the FSLMRS made the CBA “inoperable” and thus made reinstatement erroneous—had not been presented as such in the preliminary-injunction opposition. The court, citing García-Navarro v. Universal Ins. Co., emphasized the heightened burden on forfeited arguments and found the VA did not attempt to satisfy it.
  2. The retaliation analysis was not adequately undermined. Even if AFGE II limited the significance of a White House fact sheet, the district court’s retaliation finding also rested on other evidence (including OPM guidance and the VA’s selective-by-name approach). The VA did not “grapple” with those bases; under United States v. Zannino, undeveloped attacks could not carry the “strong showing” burden.
  3. Balancing Nken factors favored leaving reinstatement in place. The court accepted that reinstatement could impose irreparable burdens (costs, time, and asserted national-security implications), but held the public interest also favors lawful adherence to a binding agreement and the legal framework, citing League of Women Voters v. Newby. Plaintiffs’ harms during the pendency of appeal were not trivialized.

B. Why the enforcement order was partially stayed

  1. The “compliance” directives likely modified the injunction and were thus interlocutorily appealable. The preliminary injunction required “reinstate[ment]” of the CBA. The enforcement order added language requiring “compliance” “in both form and substance” and singled out ongoing processing of grievances and arbitrations. Under Morales Feliciano v. Rullan, this likely “substantially readjust[ed] the legal relations of the parties,” satisfying the modification requirement for 28 U.S.C. § 1292(a)(1), as framed by New York v. Trump (2026).
  2. The government made a strong merits showing based on sovereign-immunity limits on contempt-backed specific performance. The court did not interpret the enforcement order to disregard the CBA’s remedial procedures entirely. But it accepted a narrower and still significant concern: the order could make each breach of CBA procedural terms (especially grievance/arbitration processing) a contempt-enforceable violation of the injunction itself. In that posture, the government’s reliance on Coggeshall Dev. Corp. v. Diamond—that specific performance generally cannot be ordered against the United States and that Tucker Act/Little Tucker Act principles may limit nonmonetary enforcement—was substantial, particularly because the district court offered no jurisdictional analysis for contempt-backed performance of the reinstated contract’s ongoing administration.
  3. The remaining Nken factors supported a targeted stay. The irreparable harm was not the CBA’s reinstatement per se (which remained in effect), but the asserted separation-of-powers intrusion of a contempt-policed supervisory regime over day-to-day labor contract administration. With that likely ultra vires remedial expansion, the balance resembled Trump v. CASA, Inc., supporting partial relief.

C. Why the court refused to stay the “re-termination is unlawful” portion

  1. The government did not carry its burden to show interlocutory appealability. The First Circuit held the VA did not explain how the district court’s invalidation of the re-termination “greatly expanded” or otherwise modified the injunction under § 1292(a)(1). The court stressed the appellant’s burden under In re Fin. Oversight & Mgmt. Bd. for P.R.. It also declined to infer “pendent” review, citing Dominguez v. Better Mortg. Corp. and noting the VA did not argue pendent appellate jurisdiction (compare Aleynikov v. Goldman Sachs Grp., Inc.).
  2. The equities mirrored the denial of a stay of reinstatement. With no strong showing of likely success (procedurally and substantively), and given ongoing harms to plaintiffs, the balance did not justify staying the unlawfulness determination.

3.3 Impact

  • Clarifies the line between “reinstatement” and “contempt-backed compliance.” This decision signals that, at least at the stay/jurisdictional threshold, an enforcement order that converts a reinstated CBA into a court-supervised, contempt-enforceable performance regime can be treated as a modification of an injunction—opening the door to interlocutory review under § 1292(a)(1).
  • Raises the cost of expansive enforcement language against federal agencies. Parties seeking enforcement should expect federal defendants to press sovereign-immunity and Tucker Act limits when enforcement looks like specific performance rather than preservation of the status quo pending merits.
  • Encourages precision in district-court remedial drafting. “Reinstate” may be safer than “comply” if the goal is to restore a contract’s legal status while leaving breach remediation to the contract’s own procedures (or the statutory scheme). Conversely, if a district court intends contempt-backed oversight, it will likely need a clear jurisdictional foundation.
  • Procedural discipline matters in emergency appellate practice. The First Circuit’s treatment of forfeiture, reply-brief arguments, and underdeveloped points reinforces that emergency stay litigation does not relax preservation and briefing norms; it may heighten them given the “extraordinary” nature of stays.

4. Complex Concepts Simplified

  • Preliminary injunction: A temporary court order entered before final judgment to prevent harm and preserve the parties’ positions while the case proceeds.
  • Stay pending appeal: A pause of the district court’s order while an appeal is ongoing. Under Nken v. Holder, the movant must usually show a strong likelihood of success and irreparable harm.
  • Interlocutory appeal (28 U.S.C. § 1292(a)(1)): An appeal allowed before final judgment for orders granting, denying, or modifying injunctions. Mere “enforcement” of an existing injunction is often not immediately appealable unless it changes the injunction’s practical/legal scope.
  • “Modification” vs “enforcement”: An enforcement order applies an existing injunction; a modification changes what the injunction requires. The First Circuit treated “comply with the CBA” as potentially changing obligations beyond “reinstate.”
  • Sovereign immunity and the Tucker Act: The federal government cannot be sued unless it consents. The Tucker Act framework is commonly understood to channel many contract claims into money damages rather than orders compelling performance. Coggeshall Dev. Corp. v. Diamond reflects this traditional limit on specific performance against the United States.
  • Forfeiture (not raising an argument below): If a party fails to raise an argument in the district court, an appellate court may refuse to consider it or apply a much tougher standard (often “plain error”).

5. Conclusion

The First Circuit’s decision is a cautionary, procedure-forward precedent in federal labor and public-law injunction practice: it refused to pause reinstatement of a CBA where the government did not make the required “strong showing” under Nken v. Holder, but it did pause contempt-backed “compliance” directives that likely transformed the injunction into an expansive, court-supervised specific-performance regime—triggering serious sovereign-immunity concerns under Coggeshall Dev. Corp. v. Diamond and making that portion likely appealable as a “modif[ication]” under § 1292(a)(1). At the same time, the court drew a hard line on interlocutory jurisdiction by refusing to stay (or effectively review) the enforcement order’s separate invalidation of the VA’s re-termination, because the VA did not adequately show that issue was itself appealable at this stage.