October 21, 2026
This week's Solidarity Docket reports on a major union victory in telework litigation at the FLRA, contract disputes at the Bureau of Prisons and the Department of Veterans Affairs, a court order halting parts of the Department of Agriculture's reorganization, the status of the probationary termination class actions, a ruling in the Comans removal case, and OPM's final rule ending time-in-grade restrictions.
FLRA Upholds Award Restoring Telework and Remote Work at HHS
The Federal Labor Relations Authority on October 21 denied the Department of Health and Human Services’ exceptions to an arbitration award won by the National Treasury Employees Union. The award is now final. HHS must rescind its February 2025 directive implementing the President’s Return to In-Person Work memorandum. It must also reinstate the telework and remote-work agreements terminated under that directive and post a notice acknowledging that it repudiated the parties’ agreement.
The arbitrator found that the NTEU agreement allows HHS to end telework and remote work only for cause, under listed criteria, and the memorandum is not among them. The memorandum itself requires implementation consistent with applicable law. The arbitrator held that federal labor law (5 U.S.C. § 7116(a)(7)) bars an agency from enforcing a later rule that conflicts with an agreement already in effect. HHS did not argue that these conclusions were contrary to law, so the Authority did not rule on them directly. It rejected the Agency’s nonfact, essence, and exceeded-authority claims.
The Authority also found that 35 of the 42 citations in HHS’s brief were fictitious, erroneous, or irrelevant. It cautioned parties that use generative AI to verify their filings before submitting them.
Court Voids BOP's Second Termination of AFGE Contract, Denies Contempt Request
A federal district court ruled on October 16 that the Federal Bureau of Prisons cannot cancel its collective bargaining agreement with the American Federation of Government Employees (AFGE) while a preliminary injunction holds that agreement in place. The court voided BOP's re-termination of the contract and denied AFGE's request to hold the agency in contempt.
The court held that BOP engaged in "self help." The agency did not file a motion asking the court to dissolve or clarify the injunction before ending the contract, and the court found that a new rationale does not permit an agency to abandon its obligations under an injunction. The order provides that the agreement remains in effect until it expires on May 28, 2029, or until the court grants a properly filed motion by BOP to dissolve or clarify the injunction.
The ruling has four practical effects:
Blocked: BOP may not terminate the agreement unilaterally while the injunction is in force.
Allowed: BOP may file a motion asking the court to dissolve or clarify the injunction. The order does not decide how the court would rule on such a motion.
Contempt: The court called a civil contempt finding premature and unnecessary at this time, and found that BOP had taken sufficient measures to begin complying with the injunction.
Local disputes: The court declined to take jurisdiction over complaints that individual wardens are not honoring the contract. Those disputes belong in the contractual grievance process.
Civil contempt generally requires a clear order and a violation of it, and it is coercive or compensatory rather than punitive. Fines against an agency are paid from public funds. Criminal contempt requires a prosecutor, and courts have generally been cautious about sanctioning individual officials. Here, the court chose to void the unlawful act and leave the contempt question open rather than impose a sanction. Whether any consequence will attach to individual officials in this case remains unresolved.
VA Tells Employees AFGE Master Agreement Has Expired After First Circuit Stay
The Department of Veterans Affairs notified AFGE on October 10 that it considers the AFGE national master agreement expired, and revised guidance dated October 8 states that the agreement "no longer applies" to most bargaining unit employees. Under the guidance, negotiations, grievance and arbitration, union office access, and other contract provisions for those employees "shall immediately cease," and employees must return government equipment used for union activities by October 22. VA police officers, firefighters, and security guards are exempt from Executive Order 14251 and keep the contract articles on mandatory conditions of employment. AFGE says the agreement covers more than 300,000 VA employees.
On October 2, the First Circuit stayed the district court's August order, which had held that the contract remained extended during successor negotiations. The panel found that order went beyond the March preliminary injunction. That injunction remains in effect, and the underlying case continues. The First Circuit did not decide whether VA may strip bargaining rights under the executive order. AFGE says the ruling did not approve VA's reading of the contract's duration clause or permit a new termination, and the union is weighing next steps.
Court Stays USDA Reorganization Funding and Relocations; Government Appeals
A federal district court in the Northern District of California on October 13 stayed major parts of the Department of Agriculture's reorganization in AFGE v. USDA, brought by AFGE and other unions, nonprofit organizations, and local governments. The stay issued under Section 705 of the Administrative Procedure Act, which postpones an agency action during review and is not a final ruling.
The stay bars USDA from using appropriated funds to carry out the reorganization, including moving expenses and building closures, and from making further staff relocations or enforcing management-directed reassignment letters. It also bars closing or consolidating any Agricultural Research Service lab or facility, including the Beltsville Agricultural Research Center. It does not bar reassigning DC-area employees to other offices in the same region, and it does not require employees who relocated before the September 14 administrative stay to return.
The government filed a notice of appeal to the Ninth Circuit on October 15, and a compliance declaration is due October 20. We have not seen a motion to stay the order pending appeal. The funding restrictions underlying the stay run through December 11, and the court noted the relief could be short.
Update on MSPB Class Actions Over Probationary Terminations
Danny Rosenthal, Rise Up's expert volunteer attorney, reports that the six MSPB class actions over the termination of more than 20,000 probationary employees have been dismissed in whole or in part, and that two appeals are pending at the Federal Circuit. This continues our coverage of probationary litigation.
An MSPB administrative judge dismissed the DHS and Interior class actions. The employees appealed, and the Federal Circuit consolidated the appeals. The employees' opening brief, the Council of Administrative Counsel amicus brief, and the government's response have been filed. The employees' reply is pending, and Rosenthal expects oral argument in 2027. The HUD class action was also dismissed, and that dismissal is on appeal to the Federal Circuit. The OPM class action was dismissed as well, and Rosenthal reports an appeal is likely but not yet confirmed.
The HHS and Commerce class actions were dismissed without prejudice. MSPB will refile them automatically in March 2027, or sooner if the Federal Circuit decides the DHS and Interior appeal first. The Federal Circuit's ruling in that appeal is the main open question for all six cases.
Court Clears Former FEMA CFO's Name; Appeal Challenged as Premature
A federal district court in the Eastern District of Virginia on October 13 cleared the name of Mary Comans, the former FEMA Chief Financial Officer, finding after a name-clearing hearing that the derogatory statements about her conduct were false. The Department of Homeland Security had accused her of authorizing improper payments for New York City migrant shelter hotel costs. Comans denies wrongdoing and says the payments followed FEMA procedures. The case is Comans v. Executive Office of the President (case summary).
This is a new phase of a case already on appeal. The government appealed the court's July 21 summary judgment ruling to the Fourth Circuit. On October 7, Comans moved to dismiss that appeal as non-final. The Fourth Circuit has not ruled on the motion, so the government's challenge to the July ruling continues, and whether the court of appeals reaches it is unresolved. A hearing is set for November 6.
OPM Eliminates Time-in-Grade Requirement for General Schedule Promotions
The Office of Personnel Management published a final rule in the Federal Register on October 19 that eliminates the time-in-grade restrictions for promotions. The rule, 91 Fed. Reg. 65887, removes 5 C.F.R. part 300, subpart F, with conforming changes to parts 315, 316, 352, and 410. It takes effect January 19, 2027. OPM proposed the rule in May 2026.
The restrictions applied to General Schedule positions in the competitive service at GS-6 and above, and they never applied to Federal Wage System or pay-banded positions, most excepted service positions, or employees hired through open-competitive examinations. Employees still must meet qualification standards and agencies must still follow merit promotion procedures. The rule creates no entitlement to promotion. Before the effective date, agencies must document job-related service requirements in their merit promotion plans under 5 C.F.R. 335.103(b)(1). The rule does not change agencies' obligations to bargain with unions.
Dates to Watch
October 20: USDA compliance declaration due in AFGE v. USDA. October 22: VA deadline for employees to return equipment used for union activities. November 6: hearing in Comans. December 10: the Federal Circuit hears en banc argument in Jackler. December 11: the continuing resolution funding the government expires, and the funding restrictions underlying the USDA stay run through the same date. January 19, 2027: the time-in-grade rule takes effect. March 2027: MSPB is scheduled to refile the HHS and Commerce probationary class actions.
In Solidarity,
Suzanne Summerlin
General Counsel, Rise Up: Federal Workers Legal Defense Network
