The Solidarity Docket
September 2, 2026
Three big changes for federal workers in the last week. The Department of Defense re-terminated its collective bargaining agreements and put a fifteen-day clock on pending grievances. The appeals structure for reductions in force, probationary terminations, and suitability actions moved from the Merit Systems Protection Board to the Office of Personnel Management. And the Equal Employment Opportunity Commission proposes to completely change elements of the federal EEO complaint process.
Defense Department Re-Terminates Its Agreements and Sets a Fifteen-Day Clock on Pending Grievances
On August 24, 2026, the Secretary of Defense issued a memorandum that rescinds and replaces its April 9, 2026 memorandum terminating collective bargaining agreements across the Department under Executive Order 14251. The new memorandum directs components to terminate or re-terminate their agreements on or about August 31. It states that nothing in it reinstates any terminated agreement. DoD now gives additional reasons for its timing, identifies different legal grounds it says make continued performance unlawful, weighs the reliance interests of employees and unions, and explains why it rejected waiting for litigation to conclude or letting the agreements expire.
Some units remain carved out. The memorandum does not reach the immediate local employing offices of Department police officers, security guards, or firefighters, the same four subdivisions covered by the April 2025 certification at 90 Fed. Reg. 17052, or any bargaining unit covered by an operative court order enjoining implementation of the executive order or termination of agreements. Workers who are unsure whether their unit is covered should contact their union.
Where Appeals Go Now
Four Office of Personnel Management rules take effect September 2, routing appeals of reductions in force, probationary terminations, and suitability actions to OPM rather than the Merit Systems Protection Board.
The Board retains jurisdiction in just two situations. Foreign Service appellants continue to appeal under 22 U.S.C. 4010a. Claims with an independent statutory home also survive, including claims under the Uniformed Services Employment and Reemployment Rights Act, veterans preference claims, equal employment opportunity claims, and complaints to the Office of Special Counsel. An employee facing a suitability action after September 2 should identify whether any of those independent grounds apply before assuming the only available forum is OPM.
The Partnership for Public Service has published a question and answer with the former Vice Chairman of the Merit Systems Protection Boardcovering forum selection and filing deadlines under the new structure.
Unions Challenge Two OPM Rules Already in Effect
AFGE, AFSCME, IFPTE, NFFE and four AFGE locals sued the Office of Personnel Management on August 24 in the United States District Court for the Northern District of California. The unions together represent roughly one million federal employees.
The first rule, published at91 Fed. Reg. 39361and effective July 30, 2026, extends OPM’s suitability authority to conduct occurring after an employee is hired. Suitability had historically been a pre-employment screening tool. Under the new rule, OPM claims sole authority to find a sitting employee unsuitable based on post-appointment conduct, to direct the employing agency to remove that employee within five business days, and to bar the employee from future federal employment. OPM estimates that half of all removal actions will move out of Chapter 75 and into this process. Employees in this new process lose workplace protections like notice of the allegations and a right to answer them that Chapter 75 provides.
The second rule, published at 91 Fed. Reg. 41521 and effective August 6, 2026, authorizes OPM to require agencies to rate employees on a standardized distribution. OPM regulations had long forbidden forced distribution because it measures employees against each other rather than against the objective criteria the statute requires. The rule also removes the requirement that higher-level management review any appraisal at the lowest summary level, and it closes the negotiated grievance procedure to performance evaluations once current agreements expire.
The complaint pleads four counts under the Administrative Procedure Act, arguing that both rules exceed OPM’s statutory authority, conflict with the Civil Service Reform Act, and are arbitrary and capricious. Neither rule is blocked. Employees remain subject to both while the case proceeds.
FMCS Republishes Its Arbitration Rule and Moves Comments Off Regulations.gov
On August 4 the Federal Mediation and Conciliation Service published an interim final rule, RIN 3076-AA31, allowing the agency to decline to issue an arbitration panel on criteria it sets. The rule took effect immediately without notice and comment. On August 28 FMCS republished the rule in full, attributed the republication to a technical error, and extended the comment deadline to September 28, 2026.
The regulatory text is identical in both versions. So is the preamble, including the good cause findings and the sovereign immunity discussion. Four things changed: the effective date, the comment deadline, the signature date, and the method for submitting comments. The August 4 version directed comments to the Federal eRulemaking Portal, where submissions post publicly at regulations.gov as they are received. The August 28 version directs comments to an FMCS email address or by mail to the agency’s Office of General Counsel, and states that comments will be posted on the FMCS website. Regulations.gov does not appear in the new version.
The practical effect is that public comment on this rule no longer posts automatically to a government-wide site. Comments are due September 28, 2026 to register@fmcs.gov.
EEOC Proposes to Rebuild the Federal EEO Complaint Process
The Equal Employment Opportunity Commission voted two to one on August 26 to approve a notice of proposed rulemakingthat would change every stage of the federal sector complaint process at 29 C.F.R. Part 1614. The proposal was published August 28 and comments are due September 28, 2026.
Four changes matter most to workers. Mandatory pre-complaint counseling would be replaced with a direct-file model giving an individual sixty days from the discriminatory event to file. Complainants could no longer elect a hearing before an administrative judge, although the Commission could refer a complaint for a hearing on its own. The Commission would stop adjudicating class complaints. The proposal also revises the rules governing attorney fee awards, including how market rates are determined.
The Commission majority described the current process as too slow, citing an average wait of 962 days for a decision, and stressed that the proposal does not alter statutory rights under Title VII. The dissenting member argued that eliminating counseling and the right to a hearing removes the first and often only external review a federal employee gets short of filing suit, that a sixty-day filing window is far shorter than the private sector deadline, that the loss of discovery disadvantages employees, and that eliminating class complaints removes the tool for challenging systemic discrimination. Motions to table the proposal and to extend the comment period to sixty days both failed.
FLRA Sets Aside a Full-Time Telework Award
The Federal Labor Relations Authorityissued a decision on August 27 in a case involving U.S. Customs and Border Protection and NTEU Chapter 246 that will affect pending return-to-office disputes.
The arbitrator had read a contract article and a memorandum of understanding to require the agency to show that a particular employee’s pandemic telework was deficient before denying a telework request, and ordered full-time telework. A divided Authority set the award aside. Its reasoning turns on duty station. When an employee reports to the office fewer than two days a pay period, the official duty station becomes the employee’s residence, and determining where duty stations sit is a management right.
On that view an award ordering full-time telework does not just enforce a contract, it relocates positions, which put the union to the burden of showing the contract language fell within an exception. On appropriate arrangements, the Authority weighed relief from one weekly commute against requiring the agency to restructure where its positions are located and found the burden excessive. On procedures, it held that requiring the agency to prove a specific employee’s telework had failed is not a procedure for exercising a management right but a substantive limit on the right itself.
Arbitrator Finds Mass Probationary Terminations Were a Reduction in Force
An arbitrator held recently that the Department of Health and Human Services violated the reduction-in-force provisions of its agreement with NTEU and the RIF regulations when it terminated roughly five thousand probationary employees without applying RIF procedures. The award reasoned that releasing that many probationers within a few days showed the terminations were not individualized decisions about conduct or performance but part of a centrally directed downsizing effort.
Pay Freeze Proposed for 2027
The President issued a plan to freeze pay for most federal employees at 2026 levels next year, while directing the Office of Personnel Management to authorize a 3.8 percent increase for federal law enforcement officers and providing raises of between 5 and 7 percent for military service members depending on rank. Congress can still override the plan, and pay rates are not final until the President signs the annual executive order in December.
Unions and employee organizations oppose the plan. AFGE noted that private sector workers earn 27 percent more on average than federal employees doing the same work, and pointed to recently finalized rules that would allow OPM to approve critical position pay above $400,000 for as many as 400 positions. The National Active and Retired Federal Employees Association said that a freeze combined with inflation and expected health premium increases functions as a pay cut, and that because annuities are calculated on a high-three average salary, a freeze reduces future retirement income as well as current pay. The Professional Aviation Safety Specialists said a freeze will complicate the Federal Aviation Administration’s plan to hire 750 additional technicians.
Litigation Roundup
Jackler v. Merit Systems Protection Board, No. 2026-1575 (Fed. Cir.). The Federal Circuit set en banc argument for December 10, 2026, with thirty minutes per side. The Board and the Department of Justice filed their briefs on August 28. Two former immigration judges petitioned for review after the Board held that their removals were a lawful exercise of the President's constitutional authority. The case decides whether the President may remove career adjudicators under Article II notwithstanding the protections Congress enacted, and whether the Board may review such removals. Amicus briefs supporting the petitioners were filed by AFGE, AFSCME, IAM, IFPTE, NFFE, and SEIU jointly, by NTEU, by the National Association of Immigration Judges, by the National Employment Lawyers Association and the Metropolitan Washington Employment Lawyers Association, and by more than forty members of Congress.
Saladino v. U.S. Office of Special Counsel, No. 1:25-cv-03107 (D.D.C.). The court dismissed this challenge to the Office of Special Counsel's April 2025 directive closing investigations into probationary terminations. It held on August 24 that the terminations are cognizable injuries but that the closure of an investigation is not, and that ordering the Office to reopen investigations would not redress the terminations because the Office retains discretion over whether to seek relief. Probationary employees whose complaints were closed under that directive cannot use the Administrative Procedure Act to compel reinvestigation.
American Federation of Government Employees v. Office of Personnel Management, No. 25-5875 (9th Cir.), on appeal from No. 3:25-cv-01780 (N.D. Cal.). The Ninth Circuit heard argument and submitted the appeal on August 28. The permanent injunction entered in September 2025, which bars OPM from directing agencies to terminate probationary employees and required agencies to correct personnel records that recorded those terminations as performance based, remains in effect while the appeal is pending.
Comey v. Department of Justice, No. 1:25-cv-07625 (S.D.N.Y.). A former Assistant United States Attorney challenges her removal under the Civil Service Reform Act, the separation of powers, and the First and Fifth Amendments. Cross-motions for judgment on the pleadings became fully briefed on August 21. On August 25 the court refused to stay discovery, stating that at least some of her claims appear likely to survive those motions. Discovery proceeds while they are decided.
National Treasury Employees Union v. Trump, No. 25-5157 (D.C. Cir.), consolidated with AFSA v. Trump, No. 25-5184, and FEA v. Trump, No. 25-5303. These appeals challenge the exclusion of employees from Chapter 71 coverage under Executive Order 14251. They were argued December 15, 2025 and remain undecided. The preliminary injunctions are stayed, so the executive order remains in effect, and nine cases on our Litigation Tracker are stayed or held in abeyance pending the ruling.
In Solidarity,
Suzanne Summerlin
General Counsel
Rise Up: Federal Workers Legal Defense Network
