The Solidarity Docket
September 8, 2026
The Merit Systems Protection Board will no longer require agencies and its own judges to work through the twelve Douglas factors that test whether an agency’s discipline is justified. A federal court held that the challenge to the Department of Agriculture's relocation of headquarters staff belongs in a separate lawsuit, leaving the relocations to continue. Congress funded the government through December 11 without restoring the layoff protections that expired in February.
MSPB Ends the Requirement to Work Through the Douglas Factors
A final rule published in theSeptember 3 Federal Register changes how the Merit Systems Protection Board reviews the reasonableness of an agency's chosen penalty in misconduct-based adverse actions. The rule takes effect thirty days after publication, in early October.
The Board will no longer require consideration of the twelve factors set out inDouglas v. Veterans Administration in every case. It will instead ask whether the agency's penalty falls within the tolerable limits of reasonableness in light of the totality of the circumstances, determined case by case. That formulation is drawn from Douglas itself, and the inquiry is codified at 5 C.F.R. 1201.56.
The Board stated that the rule does not make the Douglas factors irrelevant. Parties remain free to raise them, deciding officials remain free to address them absent contrary direction from the Office of Personnel Management, and the Board and its administrative judges will weigh record evidence bearing on them wherever they are material. What ends is the treatment of the twelve factors as a compulsory analytic code. The Board specifically identified three practices it is discontinuing: the expectation that every factor be recited in every case, the litigation of penalty appeals as audits of factor recitation, and the premise that an otherwise reasonable penalty may be disturbed because a decision letter or an initial decision did not march through an enumerated list.
Several protections do not change. The agency must still show that its action promotes the efficiency of the service under 5 U.S.C. 7513(a). The agency still bears the burden of proving the reasonableness of its penalty by a preponderance of the evidence under 5 U.S.C. 7701(c)(1)(B). The Board still may not sustain a decision that resulted from harmful procedural error, was based on a prohibited personnel practice, or was not in accordance with law. Board decisions remain subject to review in federal court under 5 U.S.C. 7703(c). The practical shift for employees and their representatives is that a penalty defense resting on gaps in the agency's factor recitation is unlikely to carry an appeal on its own. Record evidence bearing on whether the penalty itself is reasonable now does that work.
Court Sends USDA Reorganization Claims to a New Lawsuit
Department of Agriculture employees facing relocation out of the Washington, D.C. area were denied an order protecting them against the plan to move them to five other cities. A federal district court in California declined to let unions and other plaintiffs add claims about the Department's reorganization to the pending challenge to Executive Order 14210, and denied the related request for a preliminary injunction as moot. The Department may continue implementing the move.
The plaintiffs inAmerican Federation of Government Employees, AFL-CIO v. Trump asked to supplement their complaint with allegations that the Department is shifting to a five hub-city structure and relocating most of its headquarters staff to Raleigh, Kansas City, Dallas and Fort Worth, Fort Collins, and Salt Lake City. They argued that the reorganization flows from the same directives already at issue in the case, and that Congress specifically directed the Department not to restructure or downsize without further congressional approval. The government responded that the current reorganization is distinct from the Department's 2025 reduction in force and reorganization plans, disputed the characterization of the reorganization as a backdoor reduction in force, and asserted that the Department projects a modest staffing increase for fiscal year 2026.
The court denied leave to supplement on procedural grounds. At the hearing, the plaintiffs identified their primary claim as a violation of the fiscal year 2026 appropriations statutes for the Department of Agriculture and the Forest Service. The court found that this theory raises questions the operative complaint does not present, including severability, the effect of legislative history, and whether private plaintiffs can enforce congressional appropriations restrictions. Because supplementation under Rule 15(d) cannot be used to introduce separate and distinct causes of action, the court held that the claims belong in a separate lawsuit.
The order decides nothing about whether the reorganization is lawful. The plaintiffs remain free to file a new action raising the appropriations claims, and the preliminary injunction request can be renewed there. The practical effect is delay. Two other motions argued at the same hearing remain undecided, a request for remedies over the preservation of electronic records and a cross motion for partial summary judgment on supplemental claims already in the case.
The Department told the court on August 28 that 725 employees have received management directed reassignment letters and that 64 percent of them have accepted. AFGE and employees at several components dispute that figure. A labor relations specialist for AFGE told the court the number is inflated because employees must accept the reassignment before they can request a hardship exemption or a reasonable accommodation, and many of those employees will not be able to relocate if their requests are denied. Employees also report accepting in order to buy time to apply for other positions in the Washington area. The Department has sent notices to fewer than a third of the roughly 2,500 employees expected to receive them, and expects no more than 2,000 of the approximately 4,600 employees in the national capital region to remain there.
Employees who receive relocation directives in the interim should preserve dates and documents, and bargaining unit employees should raise impact and implementation bargaining and grievance rights through their unions. Federal employees can also sign up for a legal consultation with Rise Up, which can help them determine how best to reach their union and what their legal rights and options are.
EEOC Class Complaints Resume
Processing of federal sector class complaints at the Equal Employment Opportunity Commission has resumed. A federal district court denied AFGE's motion for a preliminary injunction and stay on September 2 without prejudice in AFGE v. EEOC, but the reasoning gives employees with pending class complaints more than the outcome alone suggests.
AFGE, a class agent, and a member of a certified class filed the suit on July 28. They alleged that the Commission adopted a categorical policy of pausing all adjudication of federal sector class complaints. Their allegations rest on a Notification of Case Processing Abeyance issued in December 2025 in a certified class of women alleging that the Bureau of Prisons failed to address a pattern of sexual harassment of female correctional workers by inmates at the Federal Correctional Complex in Pollock, Louisiana. The notification paused all case processing, cancelled all scheduled deadlines and appearances, and stated on its face that it applied to all class cases in the federal sector, including those alleging disparate impact.
The Commission denied that any such policy exists, called the challenged action a fiction, described the notification as an isolated order issued in error, and reported that it had reassigned the affected matters to new administrative judges who entered scheduling orders. It declined to file an administrative record. AFGE replied with declarations from attorneys representing employees in other federal sector class cases, argued that the pause was general rather than isolated, and argued that the reassignments were retaliation against the administrative judges who had described the delays candidly. AFGE also noted that the Commission announced its proposed overhaul of the federal sector complaint process three business days before the ruling, a proposal that would end the Commission's adjudication of class complaints entirely.
The court denied preliminary relief on irreparable harm alone. Because processing has resumed and the Commission represented that a suspension will not recur, the court found no certain and imminent future injury, and held that past harm cannot support an injunction. It expressed no view on the merits and did not decide whether the voluntary cessation doctrine applies. Two parts of the order matter going forward. The court stated that its ruling depends on the Commission having disclaimed the authority to suspend class processing, and that if the Commission later takes a clearly inconsistent position the court will entertain an argument that the Commission gained an unfair advantage by changing position after successfully opposing the motion. The court also found that AFGE presented substantial evidence supporting an inference of a coordinated policy, ordered limited discovery into the contours of the challenged action, and set expedited deadlines for resolution on the merits. AFGE may renew its motion. Employees with class complaints pending at the Commission should confirm that a scheduling order has issued in their case.
Funding Runs to December 11 With No Layoff Protections
The President signed H.R. 6500, the Continuing Appropriations and Extensions Act, 2027, which funds the government at fiscal year 2026 levels through December 11, 2026. The House approved the Senate-passed measure by a vote of 370 to 48. The bill averts a shutdown at the start of the fiscal year on October 1.
The bill does not restore the prohibition on reductions in force found in previous CRs. The continuing resolution that ended the 2025 shutdown barred the use of federal funds to initiate, notice, carry out, or implement a reduction in force, and nullified reduction in force actions taken during the shutdown. That protection ran through January 30, 2026, was extended to February 13 by the Homeland Security stopgap, and expired then. AFGE asked Congress in January to extend the safeguard through 2026. Nothing comparable appears in this bill. Agencies face no statutory bar on new reductions in force between now and December 11.
The bill temporarily blocks the Office of Management and Budget rule revising the guidance that governs how federal financial assistance is administered, and it addresses a funding provision related to Immigration and Customs Enforcement and Customs and Border Protection. The bill also extends a range of expiring authorities, including surface transportation programs and several Department of Veterans Affairs authorities. The next funding deadline falls on December 11, after the November elections. Full-year appropriations for fiscal year 2027 remain unfinished.
Fired Pardon Attorney Sues, Calling the Merit Systems Protection Board a Dead End
Liz Oyer, the former United States Pardon Attorney, filed suit on September 3 challenging her March 2025 removal from a career position at the Department of Justice. She was removed shortly after declining to recommend that the firearm rights of an actor with a previous domestic violence conviction be restored.
Oyer filed an appeal with the Merit Systems Protection Board shortly after her removal. She states that sixteen months later she had received no substantive review of her termination, and that in June 2026 an administrative judge dismissed her appeal without prejudice for a minimum of six additional months. Her complaint describes the Board as a dead end. She argues that this record, together with the fact that the Department removed her on constitutional grounds rather than through the procedures of the Civil Service Reform Act, permits her to proceed in district court without exhausting the administrative route.
She also argues that the Department did not follow its own policy governing removals under Article II. Her removal was signed by the Deputy Attorney General. On the Department's own account, she contends, only the Attorney General may exercise the President's removal authority. She brings claims under the First and Fifth Amendments and the Civil Service Reform Act.
Her removal was among the first in a series of Article II removals at the Department that later reached attorneys, prosecutors, and immigration judges. The Federal Circuit will hear argument en banc in Jackler v. Merit Systems Protection Board on December 10 on whether the President may remove career adjudicators under Article II notwithstanding the protections Congress enacted.
Veterans Affairs Agreement Stays in Force After a Second Stay Request Fails
The AFGE Master agreement covering more than 300,000 Department of Veterans Affairs employees remains operative. On August 28 a federal district court denied the Department's renewed emergency motion to stay pending appeal in AFGE Local 2305 v. Department of Veterans Affairs.
The Department had asked the court to stay both the preliminary injunction entered in March and the August 11 order enforcing it. The Department characterized the August 11 order as a modification of the injunction rather than an enforcement of it. The court rejected that characterization, describing the August 11 order as clear, narrow, and consistent both with its own earlier orders and with the First Circuit's decision in the same case.
The court also found that the Department had not shown a greater likelihood of success on appeal than when it first sought a stay in April, and had not shown that the asserted harm was imminent or irreparable. The preliminary injunction and the enforcement order both remain in effect. The Department's appeals remain pending in the First Circuit, where motions to consolidate them and to hold briefing in abeyance are still open.
Practice Notes and Deadlines
The Office of Personnel Management issued a memorandum explaining its final reduction in force rules, which took effect September 2. The memorandum breaks down coverage of probationary and trial employees, retention standing, competitive areas, assignment rights, and transfers and credits, and includes several sets of questions and answers. Compliance turns on the date the agency issues the reduction in force notice. Notices issued before September 2 are processed under the regulations in effect when the notice issued. Notices issued on or after September 2 are processed under the new provisions.
The Merit Systems Protection Board issued an updated Appeal Form 185. The instructions remove references to field offices and update the Privacy Act statement, Part 2 reflects the regulatory changes that took effect September 2, and Appendix B removes the Denver Field Office and moves Arizona, Colorado, Kansas other than Kansas City, Montana, Nebraska, New Mexico, North Dakota, South Dakota, Utah, and Wyoming into the Western Regional Office. Appellants in those states should confirm the correct filing office before filing.The Federal Labor Relations Authority published an updated Guide to Negotiability, reflecting changes to its negotiability regulations and more recent case citations. The rewrite reflects the 2023 amendments to 5 C.F.R. Part 2424, 88 Fed. Reg. 62441 (Sept. 12, 2023), and the elimination of CADRO, 90 Fed. Reg. 42131 (Aug. 29, 2025). Subsections were renumbered, so filings citing the old numbering need updating. The updated guide also removes material from the 2013 edition, including the two-factor test for conditions of employment, the diagram summarizing § 7106, and two examples from the list of negotiable procedures under § 7106(b)(2).
In Solidarity,
Suzanne Summerlin
General Counsel
Rise Up: Federal Workers Legal Defense Network
