Federal Judge Stays OPM's "Favorite Executive Order" Question on Federal Job Applications
A federal judge has stayed OPM's "favorite executive order" question on federal job applications, handing federal employees and applicants a significant win. On Friday, September 11, 2026, Judge George A. O'Toole, Jr. of the U.S. District Court for the District of Massachusetts stayed the use of "Question Three," the essay prompt that has appeared on federal job announcements since OPM's May 2025 Merit Hiring Plan. As of that ruling, the government can no longer use the question while the case proceeds.
What Question Three Asked
Since May 2025, OPM has placed Question Three on federal job postings at GS-5 and above. The prompt asked applicants to name the executive orders "significant to you" and to explain how they would help implement them. It appeared on thousands of postings, for positions as varied as air traffic controller, nuclear materials courier, and crane operator. Three federal employee unions sued OPM in AFGE v. Kupor, No. 25-13305-GAO (D. Mass.), arguing the question was unconstitutional.
What the Judge Found
Judge O'Toole's read was direct: the question "calls for the applicant's personal views on a political topic." The government argued that applicants could simply skip the question. The court's response was that this was "of no moment."
The decision also recognized a real, concrete harm. One VA employee had applied to at least ten federal jobs. She did not want to discuss politics at work, but she answered the question anyway because she feared that leaving it blank, or giving an answer unfavorable to the President, would hurt her chances. The judge treated that fear as a genuine injury, not a hypothetical one.
Why the Court Sided With Federal Applicants
The court pointed to the law federal employees already live under. Discriminating against an applicant on the basis of political affiliation is a prohibited personnel practice under 5 U.S.C. § 2302(b)(1)(E). The government never explained why political allegiance would be a legitimate requirement for any civil service job. The court also weighed the public interest, noting that the public has "a strong interest in preventing" what is "likely to be determined to be unconstitutional conduct on the part of the executive branch."
The stay was entered under the Administrative Procedure Act, which allows a reviewing court to preserve the status quo pending review, 5 U.S.C. § 705, and requires courts to set aside agency action that is "contrary to constitutional right," 5 U.S.C. § 706(2)(B).
What the Ruling Does Not Do
Two limits matter. First, the decision is preliminary. The stay lasts while the case is litigated, and the government can appeal. Second, the ruling does not erase answers that have already been submitted. The court declined to bar agencies from considering responses applicants already provided.
What Federal Applicants Should Do Now
If you are applying for federal jobs, Question Three should be coming off new announcements while the stay is in effect. If you see it on an announcement opened after September 11, 2026, save a copy of the posting.
If you already answered the question, or left it blank, and believe that cost you a selection, you may have a political-affiliation complaint. The Office of Special Counsel accepts prohibited personnel practice complaints from applicants, not just current employees. Keep copies of your application, the announcement, and any notice of non-selection. Experienced federal employment attorneys can help you evaluate whether an OSC complaint makes sense in your situation.
The Bottom Line
A federal court has said, at least preliminarily, that the government cannot ask you about your politics as a condition of applying for a civil service job. That is a win worth understanding. It is also a reminder that the merit system principles and the prohibited personnel practices exist to protect applicants as well as employees.
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Legal Disclaimer: This content is for general informational purposes only and does not constitute legal advice. Federal employment situations are fact-specific and time-sensitive. Please consult a qualified federal employment attorney about your specific situation.