The Solidarity Docket
October 1, 2026
A settlement ends the challenge to layoffs during last fall's shutdown and requires agencies to remove RIF authority from their shutdown plans, subject to a notice mechanism. An FLRA dismissal adds another layer to federal court channeling arguments, and OPM has replaced the Executive Order essay question on federal job applications. Here is what federal workers and their advocates need to know.
Settlement Ends Shutdown RIF Case and Requires Agencies to Pull RIF Authority From Shutdown Plans
On September 23 the administration and eleven unions settled AFGE v. Office of Management and Budget, No. 3:25-cv-08302 (N.D. Cal.), the challenge to layoffs during last fall's 43-day shutdown. The plaintiffs are AFGE and two AFGE locals, AFSCME, NFFE, SEIU, NAGE, NTEU, IFPTE, AFT, and AFSA.
The government agreed to three things. The OMB and OPM guidance authorizing shutdown RIFs is rescinded. Every RIF notice issued during the shutdown has been rescinded. Separated employees were reinstated, with back pay from State, GSA, and SBA.
Within 30 days, OPM and OMB must publish a memorandum confirming the rescission. Agencies must remove from their shutdown contingency plans any language authorizing RIFs, or RIF work, during a lapse in appropriations, unless a statute expressly permits it.
The agreement does not bar agencies from restoring that language. A change takes effect only 30 days after the agency gives notice to the unions and posts the change publicly, and that notice would allow the unions to move to lift the abeyance and resume the case.
The commitment covers plans in effect through December 31, 2026, which includes the December 11 end of the current continuing resolution.
If no agency gives notice, the case will be dismissed with prejudice by December 31, or earlier if fiscal year 2027 appropriations are enacted.
FLRA Dismisses Exceptions in DoD Arbitration Case, Leaving Award Without Enforcement
On September 22, the Federal Labor Relations Authority issued a 2-1 decision in U.S. Marine Corps, Twentynine Palms, 74 FLRA No. 80. The majority took an AFGE local's arbitration case out of abeyance and dismissed the agency's exceptions for lack of jurisdiction under Executive Order 14251, a question still being litigated in federal court.
The award was not vacated. Statutorily, dismissal of exceptions leaves an award final and binding under 5 U.S.C. § 7122. The problem now is enforcement. Unions typically enforce awards through an unfair labor practice charge for noncompliance, and the Authority's jurisdictional holding would bar that charge. The union holds a final award with no forum to enforce it.
Member Wagner dissented. She noted that the Authority's practice has been to hold these cases in abeyance until the courts decide, that filed exceptions already stay an award, and that the majority's precedents involved exclusion orders never challenged in court.
The next day, NTEU cited the decision in a letter to the D.C. Circuit in its challenge to the exclusion orders. NTEU argues the ruling shows the FLRA route offers no remedy, because Authority orders on arbitration awards are not reviewable in the courts of appeals unless they involve an unfair labor practice, and therefore unions need the help of federal courts to enforce their rights.
OPM Replaces the Executive Order Essay Question After Court Stay
As readers may recall, on September 11 a federal court stayed part of OPM's Merit Hiring Plan in AFGE v. Kupor, No. 1:25-cv-13305 (D. Mass.), the challenge brought by AFGE, AFSCME, and NAGE. The stay covers the essay question that asked applicants to identify one or two of their favorite Executive Orders or policy initiatives. The court held the unions likely to succeed on their claim that the question violates applicants' First Amendment rights. It rejected the government's argument that the Civil Service Reform Act channels the claims to administrative review, but it denied a preliminary injunction.
OPM reported its compliance on September 25, and GovExec has more. Agencies may not consider answers to the old question for any open vacancy. Announcements that closed by September 25 were left as posted and will not be reopened. Announcements opening on or after September 19 carry a replacement question asking applicants for an example of carrying out leadership direction that differed from their own recommendation. OPM also added a fifth question asking how applicants would advance one to three agency-wide priorities, which agencies must submit to OPM by September 30.
Court Hearing USDA Relocation Challenge
This week a federal court will consider the preliminary injunction motion in AFGE v. U.S. Department of Agriculture, No. 3:26-cv-09976 (N.D. Cal.).
Before the hearing, the court asked both sides for supplemental briefs on how Congress and USDA have treated the appropriations language at issue since 2014. That language bars USDA from relocating offices or employees, or reorganizing programs, without advance approval from the House and Senate Appropriations Committees.
The court asked whether USDA has regularly acted without that approval or has refrained from doing so. The administrative stay described in our last two editions runs through October 2 unless the court extends it or rules on the motion. Until then, employees in the eight covered components remain protected from reassignment deadlines and from discipline for declining to relocate.
Also This Week:
The court dismissed without prejudice the Privacy Act class complaint brought by NOAA probationary employees terminated in February 2025, Goodman v. Lutnick, No. 8:25-cv-02097 (D. Md.). It held that the claims challenge the terminations themselves and that the Civil Service Reform Act provides the exclusive path for review. The plaintiffs must tell the court by October 30 whether they will amend.
The parties in AFGE v. Trump, No. 3:25-cv-03698 (N.D. Cal.), will return to a magistrate judge for a second settlement conference on September 29. The joint statement on outstanding relief remains due October 9.
The court heard argument on September 18 on the cross-motions for judgment on the pleadings in Comey v. Department of Justice, No. 1:25-cv-07625 (S.D.N.Y.), the former Assistant U.S. Attorney's challenge to her removal outside Civil Service Reform Act procedures. Discovery continues while the motions are pending.
The Fourth Circuit set a briefing schedule in the government's appeal in Comans v. Executive Office of the President, No. 26-2242 (4th Cir.), where the district court held that FEMA's former Chief Financial Officer was removed without due process. The government's opening brief is due November 2 and the response is due December 1.
The Government has filed a notice of appeal to the Ninth Circuit on September 25 in AFGE v. Noem, No. 2:25-cv-00451 (W.D. Wash.). The appeal is from the court's July 28 order denying motions to dismiss and to dissolve the preliminary injunction. The injunction protecting the Transportation Security Officers' 2024 agreement remains in effect.
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In Solidarity,
Suzanne Summerlin
General Counsel
Rise Up: Federal Workers Legal Defense Network
