The SOlidarity Docket
September 22, 2026
A federal court has ordered the government to show what authority Voice of America is operating under now, and has raised on its own whether the case is over. OPM has proposed stripping administrative law judges of reassignment rights that other career employees keep in a reduction in force. Here is what federal workers and their advocates need to know.
Proposed Rule Would Narrow RIF Protections for Administrative Law Judges
OPM has proposed a rule overhauling the excepted service regulations. One section changes how administrative law judges are treated in a reduction in force. It can be found at 91 Fed. Reg. 59,076 (Sept. 18, 2026), Docket ID OPM-2026-0166.
Since July 2018, new ALJ appointments have been made under Schedule E, in the excepted service. Judges appointed before that date remain in the competitive service.
Competitive service employees have a mandatory right to an offer of another position under 5 C.F.R. 351.701, commonly called bump and retreat. OPM narrowed how that operates in its August 2026 RIF rule, which put performance ahead of length of service on the retention register, but the entitlement itself remains.
Proposed section 930.210 would deny that entitlement to Schedule E judges. Assignment rights would be discretionary under section 351.705. If an agency declines to provide them, it could release the judge without offering another position.
The rule would also eliminate OPM's ALJ priority referral list and make Schedule E judges ineligible for the reemployment priority list. Judges appointed before July 2018 would keep competitive service treatment while they remain in their current positions. Comments are due November 17, 2026.
Court Orders the Government to Show What Authority VOA Is Operating Under
On September 18 the D.C. District Court ordered the government to produce the materials that presently guide or determine how the U.S. Agency for Global Media operates, including any memorandum superseding the one the court vacated in March. The order and opinion cover both cases, the one brought by the VOA director and the one brought by VOA journalists with AFGE, AFSCME, Reporters Without Borders, and the NewsGuild-CWA, Abramowitz v. Lake, No. 1:25-cv-00887 (D.D.C.), and Widakuswara v. Lake, No. 1:25-cv-01015 (D.D.C.).. The government has maintained for months that the vacatur required it to do nothing and that it is taking no action under the vacated memorandum. The court did not resolve that dispute. It raised a different question neither side had briefed. If the agency has abandoned the vacated actions and is operating under new authority, the case may be moot and the court would lose jurisdiction. The government must brief mootness by October 12, the plaintiffs respond by November 2, and any reply is due November 9. The court also directed the government to state how many of the 105 returned employees are rehires and how many are new hires. The vacatur remains in effect and the return-to-work requirement remains stayed.
EEOC Discovery Paused While the Commission Prepares a Jurisdictional Motion
The EEOC has resumed processing federal sector class complaints, and the litigation over whether it suspended them in the first place continues. On September 2 the court denied AFGE's motion in AFGE v. EEOC, No. 1:26-cv-02640 (D.D.C.) for a preliminary injunction. It was denied without prejudice, with the court resting only on irreparable harm, and ordered limited written discovery into the contours of the suspension. The court found that the plaintiffs had presented substantial evidence supporting an inference of a coordinated policy.
The Commission then asked for leave to move to dismiss for lack of jurisdiction and to stay discovery. On September 16 the court denied leave as unnecessary, holding that no leave is required to file a jurisdictional motion, and set September 28 as the deadline for filing one. It held the discovery deadlines from its September 2 order in abeyance while it decides whether discovery should proceed.
Separately, NASA employees moved on September 18 for reconsideration of the Commission's August decision decertifying their 2013 class complaint, which alleges that the agency's performance appraisal system disadvantaged Black and Asian American employees. They argue the Commission never notified them of the ruling. Reconsideration is a prerequisite to seeking review in a court of appeals.
First Circuit Consolidates the VA Contract Appeals
The Master agreement covering Department of Veterans Affairs employees remains in effect in AFGE Local 2305 v. Department of Veterans Affairs, No. 1:25-cv-00583 (D.R.I.). On September 16 the First Circuit consolidated the Department's two appeals, Nos. 26-1321 and 26-1904, vacated the briefing schedule entered earlier, and set a new one. The Department's brief and appendix are due October 26. The unions' response follows thirty days after service and any reply twenty-one days after that. The Department's motion for a stay pending appeal remains pending.
On the ground, the Department is disputing arbitrator fees for work performed while it did not recognize AFGE. The Department told Arbitrator James M. Cooney it is unable to pay for services billed in August and September 2025 and in January 2026, taking the position that it owed nothing between its August 2025 contract terminations and the March 2026 injunction restoring the agreement. Cooney ruled in April that the Department violated the Master agreement by denying official time to AFGE Local 0025 representatives. Local officials warned that withholding payment may discourage neutral arbitrators from taking federal sector cases. The Department has since begun the payment process.
USDA Relocation Stay Expires October 2
Briefing closes this week on the preliminary injunction in AFGE v. U.S. Department of Agriculture, No. 3:26-cv-09976 (N.D. Cal.), the challenge to the Department's Reorganization Plan brought by AFGE, AFSCME, NFFE, NTEU, five local governments, and five nonprofit organizations. USDA filed its opposition on September 18, supported by agency declarations and eighteen exhibits. Twenty-one states and the District of Columbia filed an amicus brief supporting the unions on September 16. The unions' reply is due September 23 and the hearing is set for September 29. The administrative stay described in our last edition expires October 2 unless the court extends it. Until then, employees in the eight covered components remain protected from reassignment and relocation deadlines and cannot be disciplined for declining to relocate.
Settlement Talks Fail in AFGE v. Trump
The parties in AFGE v. Trump, No. 3:25-cv-03698 (N.D. Cal.), the case challenging the government-wide reorganization and reductions in force under Executive Order 14210, spent eight and a half hours before a magistrate judge on September 15 and did not settle. A further settlement conference is set for September 29. The September 11 spoliation and partial summary judgment rulings against DHS and FEMA described in our last edition stand. The parties must file a joint statement on any outstanding relief by October 9, and any fee application is due the same day.
Also This Week:
Forty-two House members led by Representatives Brian Fitzpatrick and Yassamin Ansari wrote to Acting Labor Secretary Keith Sonderling about delays in processing reasonable accommodation requests at the Department. They cite a backlog of hundreds of requests, staffing shortages, and the infrequent use of interim accommodations while requests are pending, and they ask for current processing times and pending request counts by October 16. The letter follows the CDC resubmission directive covered in our last edition.
Six Senate Democrats led by Adam Schiff and Mark Warner asked OPM on September 17 to suspend its plan to collect claims-level data on as many as eight million FEHB and PSHB enrollees, warning that the data would remain linkable to individuals even after pseudonymization.
The Partnership for Public Service reported that 934 non-Senate-confirmed political appointees departed in the administration's first eighteen months, more than double the number at the same point in the two prior administrations. Half served less than a year.
The Air Force plans to restore more than 4,300 civilian positions across thirty specialties at a cost of $291 million in fiscal 2027, after losing more than 34,000 civilian employees since January 2025.
FMCS answered the amended complaint in AFGE v. FMCS, No. 1:26-cv-01676 (D.D.C.), on September 18 rather than moving to dismiss, so the challenge to its arbitration panel memorandum proceeds to the merits. FMCS must file a certified list of the contents of the administrative record by October 2.
Our Litigation Tracker
Our new and more comprehensive Litigation Tracker is available as a searchable spreadsheet and as a PDF. Questions, comments, or concerns? Reach out and let us know what you would like to see changed or improved: info@workerslegaldefense.org
In Solidarity,
Suzanne Summerlin
General Counsel
Rise Up: Federal Workers Legal Defense Network
