The Solidarity Docket
Week of April 30, 2026
This week's docket covers a significant development in federal-sector grievance arbitration, new whistleblower complaints at the EPA, and an important jurisdictional ruling for federal workers seeking MSPB relief. We also have updates on the loyalty question litigation, several cases to watch, and new personnel policy changes from OPM. Oh, and the DHS partial shutdown continues! Let’s get into it.
FMCS Requires Agency Consent Before Referring Unions to Arbitrators
The Federal Mediation and Conciliation Service issued a new policy memorandum on April 22 requiring that agencies excused from collective bargaining under the administration's national security executive orders consent before FMCS will refer a union to an arbitrator from its roster. If the agency withholds consent, FMCS says it will hold the union's request in abeyance indefinitely.
The policy is a significant departure from FMCS's traditional ministerial role. Federal-sector union contracts typically allow either party to demand arbitration unilaterally if one side fails to participate. Many Federal CBAs specifically require the use of FMCS rosters and arbitrators. Under established court precedent, whether a dispute is arbitrable is a question for the arbitrator -- not for FMCS. The new policy gives affected agencies effective veto power over whether a union can access the FMCS roster at all, which in practice may block arbitration entirely for unions whose contracts require it.
Court Clears the Way for Article II Termination Cases to Bypass MSPB
Maurene Comey, a former assistant U.S. attorney for the Southern District of New York, filed suit last fall challenging her termination as politically motivated. Comey is the daughter of frequent Trump foe, former FBI-director James Comey. On April 28, the court denied the government's motion to dismiss, finding that it has jurisdiction over the case under the federal question statute.
The government argued the case should be channeled to the Merit Systems Protection Board. The court rejected that argument, reasoning that because the agency cited Article II of the Constitution -- rather than the Civil Service Reform Act -- as the basis for her removal, the claims fall outside the MSPB's jurisdiction.
This decision clears the way for federal employees terminated under Article II justifications to file directly in federal court, bypassing the MSPB entirely. The administration has invoked Article II to justify a large number of career employee terminations, and agencies have consistently argued that the Board lacks jurisdiction over those removals.
EPA Employees File Whistleblower Complaints Over Dissent Letter Suspensions
Attorneys at the Government Accountability Project and Lawyers for Good Government have filed 15 complaints with the Office of Special Counsel on behalf of Environmental Protection Agency employees who were suspended after signing a public declaration of dissent last summer. Attorneys say they plan to file additional complaints soon.
The complaints allege that EPA violated federal whistleblower protection laws and the First Amendment when it suspended employees for signing the declaration. More than 600 EPA employees signed the declaration in June 2025, criticizing Administrator Lee Zeldin's policies. EPA responded with proposed terminations for some employees and suspensions for others. Probationary employees were terminated outright.
The OSC complaints cover employees who received exactly 14-day suspensions. MSPB jurisdiction over suspensions generally requires that the suspension exceed 14 days, so these employees cannot bring their claims directly to the Board. The OSC complaints provide an alternative avenue for relief, including back pay, removal of the suspensions from personnel records, and credit for missed promotions or raises.
MSPB cases and union grievances have also been filed seeking relief on behalf of EPA impacted employees.
Loyalty Question Litigation: Applicants Cannot Skip Field Marked Required
Unions challenging the Merit Hiring Plan's “loyalty question” have presented evidence that directly contradicts the government's primary defense.
OPM has maintained that the essay questions -- which ask applicants to identify executive orders they find personally significant and explain how they would advance the president's policy priorities -- are optional. New declarations submitted to the court show that in practice, applicants cannot submit job applications without answering the question. The field is marked with a red asterisk indicating a required response, and the application system will not accept a submission if the field is left blank.
Plaintiffs also presented data showing the question has appeared on approximately 33,000 job postings, with 16,000 added in March and April of this year alone. The question appears on nearly 100 percent of Labor Department postings and approximately 75 percent of Justice and Energy Department postings during that period.
OPM has acknowledged that individual agencies can configure the field as required, but says that is contrary to its guidance. Plaintiffs argue that OPM's internal training told agencies the questions are mandatory to include while optional for applicants to answer -- a distinction that has not held up in practice. The union are awaiting a ruling on their motion for a preliminary injunction.
More Cases to Watch and Recent Developments
National Council of Prison Locals v. Bureau of Prisons (D. Conn.): The court denied BOP's motion to dismiss on April 28, keeping alive AFGE's challenge to BOP's termination of the union's collective bargaining agreement. Oral argument on the union's motion for a preliminary injunction is scheduled for today, April 30.
Mullady v. Office of Management and Budget (D. Md.): On April 24, a group of 142 former career federal employees filed a motion for preliminary injunction, asking the court to deem their RIF terminations unconstitutional and reinstate them. The employees allege their terminations were politically motivated and violated the due process clause and the APA.
AFSA v. Trump (D.C. Cir.) -- USAID: A D.C. Circuit panel heard oral argument on April 23 in the appeal of the district court's dismissal of AFSA's challenge to the dismantling of USAID. No ruling yet.
AFSCME v. Trump (D.C. Cir.) -- USAGM: On April 28, the D.C. Circuit ordered the case held in abeyance pending the outcomes of the NTEU, AFSA, and FEA collective bargaining cases argued in December. Those cases remain pending.
A complete roundup of these developments and more can be found in our Litigation Tracker, updated weekly.
Performance Appraisal Requirements Eliminated for Schedule C and G Employees
OPM has officially excluded all Schedule C and Schedule G General Schedule positions from performance appraisal requirements under 5 U.S.C. Chapter 43, eliminating requirements for performance standards, progress reviews, and annual ratings of record for those employees. The reason is because OPM says Schedule C and Schedule G GS employees serve in the excepted service under political appointments and thus are effectively “at-will” employees.
DHS Shutdown Expected to End… Maybe?
The House is expected to vote this week to pass a Senate-approved bill funding most of the Department of Homeland Security, which would end the 75-day partial government shutdown of the agency. ICE and Customs and Border Protection are excluded from the bill and will be funded separately through the budget reconciliation process. President Trump has indicated he will sign the bill.
If enacted, DHS agencies including FEMA, the Coast Guard, and TSA would be funded through September 30. Secretary Mullin had warned that emergency funding for employee pay would run out if Congress did not act by April 30th.
Looking Ahead
The D.C. Circuit's decisions in the consolidated collective bargaining cases -- NTEU, AFSA, and FEA, argued in December -- remain the most consequential pending rulings for federal union rights. Multiple cases have now been stayed or held in abeyance waiting on those outcomes. We will update here and on our Litigation Tracker when there is a decision.
In solidarity,
Suzanne Summerlin
General Counsel
Rise Up: Federal Workers Legal Defense Network
