The Solidarity Docket
July 23, 2026
This week a federal court held that the administration's Article II removal theory has constitutional limits, an arbitrator again rejected mass cancellation of telework, and the Merit Systems Protection Board held the Office of Personnel Management responsible for a federal retiree's attorney's fees. Also talk of an autumngovernment shutdown in the fall is already percolating before we even get to the end of summer.
Court Orders Name-Clearing Hearing for Fired FEMA Chief Financial Officer
A federal district court in Virginia ruled in Comans v. Executive Office of the President that the summary termination of former FEMA Chief Financial Officer Mary Comans, carried out at the express direction of the President, deprived her of property and liberty without due process. The court granted her motion for summary judgment in part and ordered that she receive a name-clearing hearing.
Comans joined the Department of Homeland Security in 2004 and became FEMA's Chief Financial Officer in 2017. She was fired on February 11, 2025. Her termination memorandum alleged no cause and cited only Article II of the Constitution and the direction of the President. Separately, DHS publicly accused Comans and three colleagues of making improper payments for hotel rooms for migrants, and those accusations were amplified on social media by the head of the Department of Government Efficiency. The agency never presented the accusations as a basis for her removal, and she was given no opportunity to answer them.
When an agency fires an employee and simultaneously publicizes stigmatizing accusations the employee cannot contest, the employee has a liberty interest in clearing her name. The court directed the parties to confer and submit a joint proposal within fourteen days setting out the process for the hearing.
The court dismissed several of her claims in April and struck her request for back pay and monetary damages, so this decision does not order reinstatement or restore lost income. What it does is reject the position that Article II permits the President to fire a career employee without cause and without process, in a case where the government made that argument squarely. Democracy Defenders Fund, which represents Comans, describes the decision as the first federal court ruling to reject the administration's Article II position.
Arbitrator Orders IRS to Restore Telework and Rescind Related Personnel Actions
An arbitrator has ruled that the Internal Revenue Service violated its collective bargaining agreement with the National Treasury Employees Union, a remote work memorandum of understanding, and the Statute when it unilaterally terminated telework and remote work arrangements. The arbitrator ordered the agency to restore those arrangements to their levels before the cancellation, to stop further violations, and to rescind any personnel actions taken on the basis of the cancellation.
Like many agencies, the IRS ended regular and recurring telework in early March 2025, in response to the presidential return-to-work memorandum and related OPM guidance. NTEU grieved that month, the agency denied the grievance in May 2025, and the union invoked arbitration. Article 50 of the parties' agreement and the remote work MOU permit telework to be modified or cancelled only on a case-by-case basis and based on business needs. The arbitrator found that the agency made no individualized determinations and offered no evidence of a business need for eliminating telework across the workforce, and that the violations amounted to a repudiation of the agreement and the MOU, which is an unfair labor practice.
The agency did not participate in the arbitration. Two holdings matter beyond this bargaining unit. On jurisdiction, the arbitrator held that the obligation to arbitrate survives a contract's expiration where the dispute arose during the life of the contract, so this grievance survived the purported termination of the agreement under Executive Order 14251. Employees with grievances that predate an agency's claimed termination of their contract have an argument that those grievances remain arbitrable. On management rights, the arbitrator rejected the agency's claim to an inherent right under 5 U.S.C. 7106(a) to end telework at will, noting that the Federal Labor Relations Authority and the federal courts have held that telework arrangements do not affect an agency's rights to determine its mission or assign work, and that even if they did, they fall within the Section 7106(b) exceptions.
This case is among a pattern. Arbitrators have repeatedly found that the across-the-board cancellation of telework breached negotiated agreements, and we will continue tracking these awards. The practical question now is compliance. The IRS has thirty days to file exceptions with the FLRA, and NTEU is urging the agency to comply rather than appeal.
AFGE and NFFE Ask Court to Restore Defense Department Contracts
The American Federation of Government Employees and the National Federation of Federal Employees asked a federal district court in Maryland on July 20 to issue a preliminary injunction restoring their collective bargaining agreements with the Department of Defense. The unions filed suit earlier this month over the Department's April termination of those contracts, which covered tens of thousands of civilian employees. The case has been assigned to a judge nominated to the bench by both President Obama and President Trump.
The motion does not challenge the legality of the underlying executive order. It argues that the Secretary of Defense failed to engage in reasoned decision-making under the Administrative Procedure Act when he ordered every contract terminated on twenty-four hours' notice. The unions contend that the April memorandum identified no facts showing that any particular agreement conflicted with national security, and considered none of the available alternatives, including waiting for the executive order litigation to conclude, letting the agreements expire on their own terms, or terminating only those provisions the Secretary found inconsistent with national security. The unions also point out that the Department did not follow the termination template OPM issued in February, which directs agencies to state that they considered whether to terminate each agreement in whole or in part. That template, the unions argue, confirms that these terminations are discretionary and therefore subject to the APA's requirements.
The irreparable harm the unions describe is the part most relevant to workers now. Since April, according to the filing, management officials have told employees that their union no longer exists, some employees have been required to sign documents attesting that they lack union representation, employees in disciplinary proceedings have been denied union representation, and managers have changed work schedules unilaterally with little notice. The unions argue that workers are afraid to engage in union activity or confused about whether they may, and that membership is declining as a result.
Government Drops Its Appeal, Leaving VA Bargaining Agreements in Place
The government voluntarily dismissed its appeal on July 15 in the First Circuit challenge to a preliminary injunction restoring collective bargaining agreements at the Department of Veterans Affairs. The district court entered that injunction on March 27 in United Nurses Association of California v. Department of Veterans Affairs, brought by seven labor organizations representing roughly 2,800 VA employees, including nurses at VA medical centers and housekeeping, kitchen, and facility maintenance staff. The court set aside the November 2025 rescission order as to the plaintiffs and ordered the VA to reinstate the agreements immediately, notify the affected bargaining units, resume processing pending grievances and arbitrations, and accept new grievances filed under the agreements.
The practical effect is that those agreements remain in force and there will be no appellate ruling on the injunction. Employees in these units can continue to file grievances and pursue arbitration under their agreements. The underlying case proceeds on the merits in the district court.
MSPB Holds OPM Responsible for a Retiree's Attorney's Fees
The Merit Systems Protection Board ruled in Griffith v. Office of Personnel Management that OPM must pay a retiree's attorney's fees because its refusal to waive a collection action was clearly without merit. The Board granted the petition for review, reversed the administrative judge's denial of fees, and awarded $16,230.
The underlying facts illustrate the problem. The appellant retired as an aerospace engineer under the Civil Service Retirement System in 2000 and elected survivor annuity coverage for both his current spouse and a former spouse. OPM acknowledged those elections in 2001 and then failed for twenty-two years to reduce his annuity to account for his current spouse's survivor benefit. The error surfaced in 2022 only because the appellant notified OPM that his former spouse had died. OPM responded by assessing an overpayment of $102,239 against him and demanding repayment over forty-one months. It denied his waiver request on reconsideration. The Board eventually waived the entire debt, holding that OPM's twenty-two-year delay was egregious and that collecting from a retiree of advanced age was unconscionable.
This matters beyond retirement cases. Retirees and employees facing overpayment collections should know that OPM's own administrative error is relevant to waiver, that delay of this magnitude has been held egregious, and that the cost of counsel may be recoverable when the agency's refusal to waive disregards established precedent.
Here We Go Again: Congress Opens Fall Funding Fight
Federal workers are three months out from the end of the fiscal year and the shutdown fight has already started. The House passed a continuing resolution on July 21 that would fund the government through December 4, on a largely party-line vote of 220 to 205. House Democratic leaders rejected the bill as a premature attempt to avoid negotiating a bipartisan agreement with months still on the calendar. In the Senate, the Majority Leader said the Appropriations Committee chair is working with Democrats on the committee to fund the government past the November elections. The early start reflects what the last two years cost federal employees: a forty-three day shutdown followed by a seventy-six day partial shutdown at the Department of Homeland Security, with missed paychecks in both.
The House Appropriations Committee is separately revisiting the Prevent Government Shutdowns Act, which would trigger an automatic two-week continuing resolution whenever appropriations lapse, extend that resolution if no deal is reached, and require members of Congress and OMB staff to remain in Washington until one is. AFGE supports the bill. Its national president wrote the committee that there are no concrete signs the regular appropriations process will produce enacted spending measures in time to avoid a lapse on October 1, and that the union is increasingly concerned federal workers will go unpaid for a second consecutive year. Several Republicans on the committee spoke favorably. Democrats on the committee opposed it, arguing that automatic continuing resolutions would consolidate control over federal spending in the White House at a moment when the administration is already withholding and rescinding appropriated funds, and that they do not protect federal workers or federal resources.
For federal employees the open question is not only whether a lapse occurs but what protections travel with whatever vehicle passes. The reduction in force prohibition that Congress attached to the shutdown-ending continuing resolution expired on January 30, and agencies have since resumed restructuring. Whether any fall funding measure restores that protection is unresolved. We will report as it develops.
OPM Has Cut a Third of Its Own Workforce
The agency that administers federal personnel policy has shed 35 percent of its staff. A Government Accountability Office report released this week found that the Office of Personnel Management's headcount fell by more than a third between December 2024 and March 2026, that more than half of those who left had eleven or more years of service, and that the losses have reduced institutional knowledge and operational capacity. Retirement services lost 16 percent of its staff, and employees who took deferred resignation offers last year are still waiting on their paperwork while annuity payments sit unprocessed. The Merit System Accountability and Compliance division has lost more than 40 percent of its staff, and that is the division OPM proposed to use when it asked to take over probationary, reduction in force, and suitability appeals now handled by the Merit Systems Protection Board.
Looking Ahead
The parties in Comans are due to submit a joint proposal on the process for the name-clearing hearing at the end of this month. The First Circuit hears argument on July 28 in the challenge to the deferred resignation program. The D.C. Circuit has now gone more than seven months without ruling in the consolidated collective bargaining cases argued in December, and a number of district court cases remain stayed pending that decision.
In Solidarity,
Suzanne Summerlin
General Counsel,
Rise Up: Federal Workers Legal Defense Network
