The Solidarity Docket
August 5, 2026
This week FMCS wrote its arbitration interference practice into regulation. We also cover a vacated FLRA rule, a proposal to restructure how federal workers bring discrimination complaints, and new developments in three pending cases.
FMCS Issues Rule Allowing It to Refuse Arbitration Panels
The Federal Mediation and Conciliation Service issued aninterim final rulethat lets the agency decline to provide arbitration panels when it concludes that doing so would be inconsistent with law, a court order, or its own authority. The rule takes effect immediately.
For a union that has invoked arbitration and cannot get a panel, the practical effect is that the grievance ends without resolution. There is no arbitrator to rule on whether the dispute is arbitrable, because no arbitrator is ever appointed. The rule states that FMCS is not deciding arbitrability, but declining a panel because an agency says the arbitration is prohibited resolves that question in the agency's favor without the analysis of an arbitrator, or review by the FLRA.
The rule removes the language in 29 C.F.R. § 1404.9(b) providing that a panel request, whether joint or unilateral, will be honored. That sentence was the operative protection for unions facing an agency that refuses to participate. It is now replaced with authority for the Office of Arbitration to conduct a threshold inquiry and then issue the panel, decline it, or hold the request in abeyance indefinitely.
The screening does not stop at the panel stage. Under the revised § 1404.12(b), FMCS may also decline to appoint an arbitrator after a panel has issued, including in the situation where one party ranked the panel and the agency never responded. A union that clears the first hurdle can be stopped at the second.
FMCS grounds the rule in sovereign immunity, reasoning that agencies need statutory authorization before they can be required to arbitrate. Congress supplied that authorization in 5 U.S.C. § 7121, which makes binding arbitration invocable by either the union or the agency under a negotiated grievance procedure. The rule's own preamble cites § 7121 as an example of Congress providing the authorization it says may be missing.
FMCS invoked the good cause exception at 5 U.S.C. § 553(b)(B) to skip notice and comment, and § 553(d)(3) to take effect on publication, on the ground that prompt clarification was necessary. The agency has been declining to administer panels this way since the spring.
Comments are open through September 3, 2026 at regulations.gov.
FMCS Answers Arbitration Lawsuit, Admits It Closed the Unilateral Pathway
FMCS filed itsanswer on July 31 in American Federation of Government Employees v. Federal Mediation and Conciliation Service. AFGE, NTEU, NFFE-IAM, and IFPTE filed the case in May, challenging the April 22, 2026 memorandum from the FMCS General Counsel that directs the agency to confirm agency consent before issuing a panel.
FMCS admits that it has always honored unilateral panel requests, including for these unions and their affiliates. It admits that before the April memorandum the unions could obtain panels by unilateral request, and that this pathway is now closed for cases involving agencies covered by the exclusion orders. The rule described above was signed on the same day the answer was filed, by the same General Counsel who issued the April memorandum.
An initial scheduling conference is set for September 23, 2026.
EEOC and OMB Plan Would Restructure Federal Sector Discrimination Complaints
The Equal Employment Opportunity Commission, working with the Office of Management and Budget, is developing a plan to overhaul how federal employees bring discrimination complaints, according to reporting from Bloomberg Law.
As reported, the plan would eliminate the initial counseling stage that currently begins the administrative process. It would end the right of a federal employee to request a hearing before an EEOC administrative judge. All investigations would instead conclude in a final agency decision, with the EEOC office formerly known as the Office of Federal Operations deciding whether a hearing before an administrative judge is granted. The plan would also eliminate class complaints.
Federal employees who believe they have been discriminated against currently reach an EEOC administrative judge as a matter of right after the agency completes its investigation. Under the plan as described, that step would become discretionary. The elimination of class complaints would remove the mechanism for challenging patterns of discrimination affecting groups of employees.
Federal Circuit Receives Broad Amicus Support in Immigration Judge Removal Case
Petitioners filed their opening brief on July 14 in the Federal Circuit's en banc consideration of Jackler v. Merit Systems Protection Board. The case asks whether the President may remove career adjudicators under Article II notwithstanding the protections Congress enacted, and whether the Merit Systems Protection Board may review such removals.
Amicus briefs supporting the petitioners followed through late July. A coalition of federal employee unions filed jointly, including AFGE, AFSCME, the International Association of Machinists, IFPTE, NFFE, and SEIU. NTEU filed as well. Other briefs came from the National Association of Immigration Judges, the National Employment Lawyers Association and the Metropolitan Washington Employment Lawyers Association, the Constitutional Accountability Center, Lawyers Defending American Democracy, Social Justice Collaborative, a group of law professors, several scientific and environmental organizations, and more than forty members of Congress.
The Department of Justice intervened in the appeal and its brief is due August 28, 2026. Oral argument has not been scheduled.
Court Allows Federal Workers to Submit Declarations Under Pseudonym
A federal district court granted in part a motion by AFGE, AFSCME, and NAGE to file declarations from federal employees under pseudonym inAmerican Federation of Government Employees v. Kupor. The court found that the declarants had shown a reasonable fear of retaliation if they were identified as insufficiently loyal to the President, and limited the permission to the pending preliminary injunction motion.
The unions challenge OPM's Merit Hiring Plan, which directs that applicants for civil service positions be asked to name executive orders or policy initiatives important to them and explain how they would help implement them. The preliminary injunction motion has been under advisement since March 11.
Government Appeals FEMA Due Process Ruling
The government filed a notice of appeal on July 21 in Comans v. Executive Office of the President, the same day the district court entered judgment. The appeal challenges both the summary judgment ruling that the government deprived the former FEMA Chief Financial Officer of her property and liberty interests without due process, and the court's earlier refusal to dismiss for lack of jurisdiction. The name-clearing hearing the court ordered has not been scheduled.
A Note on the Litigation Tracker
Our Litigation Tracker is undergoing renovations and is not currently up-to-date. We are rebuilding it with the goal of making it easier to navigate and faster to check. We will let you know when it returns!
In Solidarity,
Suzanne Summerlin General Counsel Rise Up: Federal Workers Legal Defense Network
