October 28, 2026
This week's Solidarity Docket reports on a ruling that the Department of Justice unlawfully fired Maurene Comey, a Privacy Act win against OPM over DOGE access to personnel records, FLRA dismissals of NTEU's unfair labor practice charges, a final arbitration award restoring telework at HHS, and an expanded union challenge to OPM's civil service rules.
Court Rules DOJ Unlawfully Fired Prosecutor Maurene Comey
A federal district court in the Southern District of New York ruled on October 26 that the Department of Justice unlawfully fired Maurene Comey, a career Assistant United States Attorney, and ordered her retroactive reinstatement with back pay. The Department has said it will appeal.
DOJ removed Comey on July 16, 2025, citing Article II of the Constitution. The court held that Congress gave the Attorney General power to remove assistant U.S. attorneys but limited that power through the Civil Service Reform Act, and the government conceded those limits were not followed. The court rejected the argument that Article II, Trump v. Slaughter, or Trump v. United States allowed the Department to bypass them, calling it contrary to nearly two centuries of Supreme Court precedent.
The court granted judgment for Comey on her separation of powers, Administrative Procedure Act, and due process claims. Back pay runs through December 20, 2025, when she took another job. The court dismissed several other claims, ordered briefing on her First Amendment claim by November 9, and stayed discovery.
This is the first merits ruling rejecting the Article II theory DOJ has used to remove career employees. The plaintiffs in Gordon v. Executive Office of the President filed the decision with their court the same day.
Court Holds OPM Violated the Privacy Act by Opening Personnel Records to DOGE
A federal district court in the Southern District of New York ruled on October 20 that the Office of Personnel Management violated the Privacy Act when it gave DOGE agents broad access to systems holding federal employees' personal records in early 2025. The plaintiffs are AFGE, the Association of Administrative Law Judges, IFPTE Judicial Council 1, and individual federal employees.
The court granted the plaintiffs summary judgment on their Administrative Procedure Act claims. It held that OPM breached the Act's limits on disclosing records and its duty to safeguard their security and confidentiality, and it found no support in the record for the government's claim that the access served an IT modernization agenda. The court rejected the government's mootness argument, finding that the end of DOGE narrows but does not eliminate the risk of future unlawful access. It ruled for the government on a separate ultra vires claim.
The court has not yet decided relief, and the parties must propose a schedule by November 6. The plaintiffs are seeking deletion of any OPM data that DOGE agents still hold, according to the Electronic Frontier Foundation.
FLRA Dismisses NTEU's Charges Against EO 14251; NTEU Tells D.C. Circuit No Other Path Exists
NTEU told the D.C. Circuit on October 26 that FLRA Regional Directors are dismissing its unfair labor practice charges challenging Executive Order 14251 for lack of jurisdiction. NTEU filed the charges in September 2025 as a precaution in case its lawsuit was dismissed. On October 20 the Washington Regional Office dismissed a charge against the Department of the Treasury, citing Authority precedent that it cannot hear cases involving an agency excluded from the Statute.
The letter goes to the channeling question in NTEU v. Trump: whether unions must challenge the order through the FLRA rather than in federal court. NTEU argues the dismissals show that route is closed. The FLRA General Counsel would have to follow the same precedent on appeal, and courts cannot review a General Counsel's refusal to issue a complaint. NTEU made a similar point on September 23, citing the Authority's decision in U.S. Marine Corps, 74 FLRA 541 (2026).
The D.C. Circuit heard argument in December 2025 in this appeal and two related ones. No decision has issued.
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.
Unions Add OPM's RIF Process Rule to Their Challenge; NTEU Joins
The unions challenging OPM's suitability and performance appraisal rules filed an amended complaint on October 19 adding a third target: OPM's RIF Process Rule, 91 Fed. Reg. 49178 (Aug. 3, 2026). NTEU joined AFGE, AFSCME, IFPTE, NFFE, and four AFGE locals as plaintiffs.
The amended complaint alleges that the RIF Process Rule changes how agencies rank employees for retention in a reduction in force, giving performance priority over factors Congress required OPM to weigh, and departs from the statute's direction on retention preferences. The unions continue to challenge the Suitability Rule, which lets OPM remove current employees for post-appointment conduct outside the adverse action protections of Chapter 75, and the Performance Appraisal Rule, which lets OPM require forced distribution of ratings. They argue that all three rules exceed OPM's authority, conflict with the Civil Service Reform Act, and are arbitrary and capricious.
The unions have not moved for preliminary relief, so all three rules remain in effect while the case proceeds in the Northern District of California.
Unions Seek Indicative Ruling in VA Contract Case
This continues last week's coverage. AFGE and the AFGE National VA Council asked the district court on October 16 to modify its preliminary injunction and to issue an indicative ruling under Federal Rule of Civil Procedure 62.1. An indicative ruling would tell the First Circuit that the district court would modify the injunction if the appeals court sent the case back for that purpose. It would have no immediate effect on its own.
The Department of Veterans Affairs opposes expedited briefing. It points to the First Circuit's October 2 stay, which found that VA would be harmed by having to treat the master agreement as operative past August 8, 2026. VA's response to the motion is due October 28, and the unions' reply is due November 3. VA's opening brief in the First Circuit is now due November 23. The March preliminary injunction remains in place, and VA continues to treat the master agreement as expired for most bargaining unit employees.
Unions Renew Bid to Block DoD Contract Terminations Under New Memorandum
AFGE Local 1410, more than twenty other AFGE councils and locals, and three NFFE locals have renewed their request for a preliminary injunction against the Department of Defense in federal district court in Maryland. They now challenge the August 24, 2026 memorandum from the Secretary of Defense, which rescinded and replaced the April 9 memorandum and directed components to terminate or re-terminate collective bargaining agreements within seven days.
The unions withdrew their original motion on September 1, after the court indicated it would treat that motion as moot because it targeted a rescinded memorandum. On September 14 they filed a renewed motion for a preliminary injunction and a stay under Section 705 of the Administrative Procedure Act, and on September 30 the court allowed a second amended complaint. The unions also filed the Bureau of Prisons ruling as supplemental authority. The government's opposition was due October 19, and the unions' reply is due November 2. No relief has been granted, so the terminations remain in effect.
Court Hears Challenge to USDA Secretary's Religious Emails to Employees
A federal district court in the Northern District of California held a hearing on October 27 in NFFE v. USDA. The suit, brought by the National Federation of Federal Employees and six USDA employees, challenges the Secretary of Agriculture's emails to employees under the Establishment Clause, which addresses freedom of religion in the First Amendment. Ahead of the hearing, the court directed both sides to address whether the emails amount to coercion, how past Secretaries have handled religion in official correspondence, and whether one plaintiff's claims are moot. The court is considering the plaintiffs' motion for a preliminary injunction and a Section 705 stay, along with the government's motion to dismiss. We will report on the outcome next week.
Other Updates
USDA reorganization. The government's appeal of the October 13 stay in AFGE v. USDA is docketed in the Ninth Circuit as No. 26-6855. The government's opening brief is due November 13 and the answering brief December 11. USDA filed an agency declaration with the district court on October 22. The stay remains in effect.
FMCS arbitration panels. AFGE, NTEU, NFFE-IAM, and IFPTE moved for summary judgment on October 23 in their challenge to the FMCS General Counsel's April memorandum requiring agency consent before FMCS issues arbitration panels. FMCS's response and cross-motion are due November 13, and briefing closes December 11. The memorandum remains in effect.
TSA collective bargaining. The Ninth Circuit extended briefing in the government's appeal in AFGE v. Noem. The government's opening brief is now due November 9. The preliminary injunction keeping the 2024 agreement for Transportation Security Officers in place remains in effect.
FEMA staffing. In AFGE v. Trump, the court moved the parties' joint statement on relief and the unions' fee application to November 13 and reset the case management conference to November 20 while settlement talks continue.
Voice of America. In Abramowitz v. Lake and Widakuswara v. Lake, the court extended the plaintiffs' deadline to respond to the government's mootness memorandum to November 9.
Intelligence community terminations. In Doe 1 v. ODNI, the government told the Fourth Circuit on October 20 that the CIA has revised the regulation at issue going forward. It still asks for rehearing en banc of the panel decision protecting the plaintiffs. The plaintiffs responded that the revision removes any basis for en banc review.
Immigration judge removals. Briefing is complete in Jackler v. MSPB. The en banc Federal Circuit will hear argument on December 10 on whether the President may remove career adjudicators under Article II despite statutory protections.
You can always find updates to all the court cases we are following on our Litigation Tracker.
In Solidarity,
Suzanne Summerlin
General Counsel, Rise Up: Federal Workers Legal Defense Network
