The Solidarity Docket
September 15, 2026
OPM's rewritten reduction in force rules are now in effect and change who keeps their job during a RIF. Agriculture Department employees face a relocation deadline. A federal court stopped the Presidential Executive Order popularity contest foisted upon job applicants. Here is what federal workers and their advocates need to know.
OPM's New Reduction in Force Rules Are Now in Effect
OPM's final reduction in force regulations took effect September 2, and the agency issued implementing guidance the same day. The changes rewrite how retention registers are built.
Performance now drives retention. Employees are ranked by points tied to their rating: seven points for a level 5, five for a level 4, three for a level 3, and none for levels 1 and 2. Veterans’ preference points are added. Tenure and length of service, which used to come first, now function only as tiebreakers, and when every factor is identical the agency may select any tied employee for release. Agencies may award additional points on documented criteria established before the reduction in force where the highest rating available is a level 3.
Three further changes matter for how a reduction in force will feel in practice. Competitive service and excepted service employees go on separate registers. Bump and retreat is gone, replaced by a single right to reassignment that generally requires a qualification assessment. And probationary employees, along with Schedule C and Schedule G employees, are excluded from the process entirely, which means they can be terminated without the protections the process otherwise supplies.
These rules arrive alongside OPM’s performance regulations from earlier this summer, which lifted the ban on forced distribution and capped how many employees an agency may rate at levels 4 and 5.
Read together, a rating system that limits high ratings now determines who keeps their job in a RIF. The September 8 edition covered the companion appeals rules moving reduction in force, probationary, and suitability appeals from the Merit Systems Protection Board to OPM. Federal News Network has more detail on the guidance.
Court Stays (Some) USDA Relocation Deadlines Through October 2
Our last edition reported that the court overseeing the broader workforce litigation sent the Agriculture Department claims to a separate lawsuit. AFGE, AFSCME, NFFE, NTEU, five local governments, and five nonprofit organizations filed that suit on September 8 in the Northern District of California, along with a motion for a preliminary injunction.
On September 14, the court issued an administrative stay. From the date of the order through October 2, 2026, the deadlines in all management directed reassignment letters, and in any other notice or directive of reassignment or relocation issued under the challenged Reorganization Plan, are stayed. That includes deadlines requiring employees to report to new locations and deadlines to accept or decline a reassignment. USDA may not implement, carry out, or enforce those deadlines.
USDA may not proceed with any termination, separation, or other disciplinary proceeding against an employee, and may not place an employee on absent without leave status, based on that employee's decision to decline a reassignment, to not respond to a notice of reassignment, or to not relocate.
The stay covers eight components: the Food and Nutrition Administration, the Research, Education, and Economics mission area, the Forest Service, the Foreign Agricultural Service, the Rural Development mission area, the Farm Production and Conservation mission area, the Office of the General Counsel, and the Office of the Assistant Secretary for Civil Rights. It does not reach employees currently located in the National Capital Region who are being moved to another location within the National Capital Region.
The court stated that the stay preserves the status quo, gives it time to address the merits of the preliminary injunction motion, and accommodates the government's request for more time to brief. It says nothing about the merits. The next hearing is indicated for September 29, and the stay expires October 2 unless the court extends it.
The practical effect for employees in the covered components is that the September 21 reporting deadline and the October 5 deadline are both stayed for now, and declining or not responding cannot be the basis for discipline while the stay is in place.
Court Halts the Executive Order Question on Job Applications
On September 11 the U.S. District Court for the District of Massachusetts stayed the portion of OPM’s Merit Hiring Plan directing agencies to ask applicants which executive orders or policy initiatives are their favorites, and how they would help implement them. The stay covers applications for federal jobs at GS-5 and above and runs until further order of the court. AFGE, AFSCME, and the National Association of Government Employees brought the case.
The court held the unions are likely to succeed on their claim that the question violates the Administrative Procedure Act as contrary to a constitutional right. The question asks for an applicant’s personal views on a political topic and ties those views to the duties of the job, and OPM’s guidance saying answers are not an ideological litmus test does not appear anywhere in the question as applicants encounter it. The court relied on a declaration from a federal employee who said she felt compelled to give an answer contrary to her actual views.
Two parts of the ruling deserve attention. The court rejected the government’s channeling argument that these claims belong before the Federal Labor Relations Authority or the Merit Systems Protection Board first, holding the constitutional claims are collateral to those schemes because no personnel action is at issue. And the court declined to enjoin agencies from considering answers applicants have already submitted. The unions had emphasized that the injury occurs regardless of any hiring decision, so an order reaching individual hiring decisions would not redress it. Applicants who already answered the question have no relief from this order.
OPM must notify the heads of all covered agencies of the stay by September 18 and file a status report describing its compliance by September 25.
CDC Gives Employees 20 Days to Resubmit Accommodation Documentation
The Centers for Disease Control and Prevention is directing employees who already submitted supporting medical documentation for a reasonable accommodation to update or resubmit it, and giving them 20 days to do so. The direction follows months of delay in processing those requests. Employees who have an accommodation in place or a request pending should confirm the deadline that applies to them and keep a record of what they send and when. Government Executive has the details.
Sanctions and Judgment Against DHS and FEMA
On September 11, the court in the workforce reduction litigation issued two rulings for the plaintiff unions and local governments.
The first grants remedies for spoliation under Federal Rule of Civil Procedure 37(e). The government may not rely on testimony denying that it planned to substantially reduce FEMA staffing, denying that the Department of Homeland Security directed that plan, or denying that it was carried out through indiscriminate separation of Cadre of On-Call Response and Recovery employees. In any further proceedings the court will presume the deleted Signal messages would have been unfavorable to the government. Plaintiffs are entitled to fees for uncovering the conduct, with a fee application due October 9 if the parties cannot agree.
The second grants partial summary judgment on the plaintiffs’ Administrative Procedure Act claims against DHS and FEMA and denies the government’s cross-motion. The court held the agencies acted in excess of statutory authority and contrary to law, in violation of the Post-Katrina Act and the appropriations act that ended the shutdown. It found DHS has taken over FEMA’s authority to renew CORE terms, that renewals stopped in January, and that CORE employees are now being renewed for six months to a year rather than the historical two-year or four-year terms. It found the agency’s 11,383 staffing figure was submitted first and justified afterward, citing an internal document tasking a strategy to cut the FEMA workforce by half.
Relief is not set. The parties must confer on scope and file a joint statement on any outstanding relief by October 9.
Arbitrators Reach the Merits in Cases the Agency Refused to Attend
For unions holding grievances an agency has refused to process, two awards issued a week apart are worth close attention. Neither depends on the courts striking down Executive Order 14251. One holds the order cannot reach the agreement at all. The other assumes the order is entirely valid and finds the grievances arbitrable anyway, because the facts arose first. Both involve the Environmental Protection Agency. In both, the Agency declined to appear.
In the first, decided September 2, NTEU grieved EPA’s reduction in force and reorganization, arguing the Agency gave no adequate notice, never held the required briefing, and implemented without bargaining. EPA advised the arbitrator a month before the hearing that it had terminated the national agreement and that she therefore lacked jurisdiction. She rejected that position, held the hearing, and found for the Union. Executive orders are government-wide rules subordinate to existing agreements, she held, and the Agency had no power to terminate the contract unilaterally or to dissolve the panel of arbitrators the parties had jointly selected. She also noted that EPA had confirmed three hearing dates with her after the order issued and never sought a stay. On the merits she found violations of the reduction in force, midterm bargaining, and transfer of function articles, found unfair labor practices under 5 U.S.C. 7116(a)(1) and (5), and found that EPA repudiated the agreement. The remedy is a return to the status quo ante, bargaining over corrective relief and reconstruction of affected positions, a cease and desist order, and a posted notice.
The second, decided September 9, arose from AFGE Local 704’s grievances over four employees suspended for fourteen days after signing a Declaration of Dissent addressed to Administrator Zeldin and copied to congressional committees. The arbitrator took a different route to the same place. He assumed for the sake of argument that the executive order was valid and that EPA could terminate the master agreement, then held it did not matter. In the federal sector the duty to arbitrate comes from 5 U.S.C. 7121 rather than from continuing consent, so the private sector cases the Agency would need do not apply and Authority precedent controls. He also held the order is not retroactive, pointing to OPM’s own guidance telling agencies what to do after terminating their agreements and to OPM’s February 2026 memo attaching a template termination notice effective on its own date. EPA learned of the signatures on July 3, 2025 and began discipline that month. It terminated the agreement on August 8. The grievances survived.
On the merits the Agency put in no proof. It asserted the Declaration disrupted the workforce and damaged EPA’s reputation but offered nothing to support it, and the deciding official’s own penalty analysis conceded that the employees’ public statements warranted First Amendment or merit systems protection. The employees signed in their personal capacity, on their own time, without Agency resources. The arbitrator found they engaged in protected activity under the agreement and under 5 U.S.C. 7102, and that they exercised the right to petition Congress protected by 5 U.S.C. 7211. Discipline for that conduct cannot promote the efficiency of the service. He rescinded the suspensions, ordered the records expunged, ordered back pay with interest, and awarded attorney fees in the interest of justice because the Agency’s action was clearly without merit. He retained jurisdiction over back pay, fees, and compliance.
One procedural point carries across both: an agency’s refusal to participate does not stop an arbitration.
Federal Workers Can Refuse Illegal Orders
Joshua Gotbaum of the Brookings Institution and Sean O’Keefe of the Syracuse Maxwell School published a piece on September 10 on a protection most federal employees have never heard of. The Follow the Rules Act, passed unanimously by Congress and signed in 2017, makes it a prohibited personnel practice to fire, demote, or otherwise sanction a federal employee for refusing to obey an order that would require the employee to violate a law, rule, or regulation. It is codified at 5 U.S.C. 2302(b)(9)(D).
The authors are careful about what the protection does not cover. It does not permit refusing an order because an employee disagrees with the policy behind it, and it does not rest on the employee’s own view that an order is unlawful. That question is ultimately decided elsewhere, by the Merit Systems Protection Board for civilians. They also address Trump v. Slaughter directly, noting that a decision about the President’s power to remove agency heads does not give officials the right to order illegal acts or excuse employees from refusing them.
Air Traffic Controllers Still Waiting on Part of an Approved Raise
Senators Tammy Duckworth and Dick Durbin have called on the Federal Aviation Administration to implement the 3.8 percent pay raise Congress authorized for air traffic controllers in April. Controllers have received part of it and are still waiting on the remainder, and the senators tie the delay to the chronic staffing shortages in that workforce.
Our Litigation Tracker
We are launching our new and more comprehensive Litigation Tracker! We are working on website visibility improvements, but for now we will link you to our spreadsheet so it is easy to search and find what you are looking for.
View the Embedded Litigation Tracker Here
View the filter/sortable Spreadsheet Here
Questions, comments, or concerns? Reach out and let us know what you would like to see changed or improved in our litigation tracker: info@workerslegaldefense.org
In Solidarity,
Suzanne Summerlin
General Counsel
Rise Up: Federal Workers Legal Defense Network
