Attorneys for Federal Employees — Nationwide

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Today at a Glance

• BOP Terminates Its Union Contract a Second Time: Days after a federal judge ordered the contract restored, the Bureau of Prisons rescinded its 2025 termination and issued a new one under Executive Order 14251, ending union representation at disciplinary meetings and declaring pending grievances withdrawn; a compliance and contempt hearing is set for Tuesday.

• When an Agency Rescinds Your Removal: The Federal Circuit affirmed that a canceled removal moots an MSPB appeal only if the employee is fully returned to the status quo ante, and it flagged an AI-drafted brief that cited a nonexistent case.

• Picking a Retirement Date: Federal News Network's interview with retirement specialist Tammy Flanagan explains why FERS employees usually leave at the end of a month, how the annual leave lump sum is priced, and how unused sick leave adds to the annuity.

Top Stories:

1. The Bureau of Prisons Terminates Its Union Contract Again, Days After a Judge Ordered It Restored — Pending Grievances Declared "Withdrawn," Union Representation at Investigative Interviews Ended, and a Compliance Hearing Set for Tuesday

Source: Federal News Network, October 8, 2026

TL;DR: On September 29, U.S. District Judge Vernon Oliver in Connecticut ordered the Bureau of Prisons (BOP) to immediately reinstate its master agreement with AFGE's Council of Prison Locals, which covers about 30,000 employees, after finding that the September 2025 termination likely violated the Administrative Procedure Act. On October 2 the agency told the court it was complying. Then, in a memorandum dated October 7 and filed with the court on October 8 (Dkt. 79-3), Director William K. Marshall III rescinded the 2025 notice and terminated the contract a second time, citing Executive Order 14251, the March 2025 order excluding BOP from the federal labor-relations statute; the memo says the court's order "was based solely on the conclusion that Bureau leadership had issued inconsistent rationales" and "does not preclude the Bureau from issuing a new termination decision." Effective immediately, employees "no longer have the right to union representation at formal discussions, investigatory interviews, disciplinary proceedings," and pending grievances, arbitrations, and unfair labor practice charges filed by the union "are considered withdrawn." The re-termination came one day after the union moved for civil contempt, alleging that wardens had been told to do nothing in response to the injunction; BOP's filing denies it. Judge Oliver has ordered a joint status report by 11 a.m. today and set an in-person hearing on contempt and compliance for Tuesday, October 13, at 4 p.m. in Hartford.

For federal employees, this means:

• If you work at BOP and are called into an investigatory interview or disciplinary meeting, ask for a representative anyway and get any denial in writing or in front of a witness. The union-representative right at investigative interviews comes from 5 U.S.C. § 7114(a)(2)(B), which BOP now says no longer applies to it; the right to "an attorney or other representative" once an adverse action is proposed comes from 5 U.S.C. § 7513(b)(3), which the memo leaves intact.
• If you have a pending grievance or arbitration, the memo declares it withdrawn. Keep copies and note every deadline; whether the re-termination squares with the injunction is the question for Tuesday's hearing.
• Outside BOP, watch this case: the memo's theory that Executive Order 14251 removed the contract's statutory foundation is the one other excluded agencies rely on, and Government Executive notes that judges rebuked second terminations at the VA in March and at TSA in January.

Legal Insight

The President may exclude an agency from the Federal Service Labor-Management Relations Statute only on a determination that its primary function is "intelligence, counterintelligence, investigative, or national security work" and that the statute cannot be applied to it consistent with national security, 5 U.S.C. § 7103(b)(1); Executive Order 14251 made that determination for BOP, the new memo rests on it, and whether a fresh termination complies with an order to reinstate the contract is the question before the court on October 13. Whatever happens to the contract, Chapter 75 rights do not depend on a union: an employee facing removal, a suspension of more than 14 days, or a reduction in grade or pay remains entitled to 30 days' advance written notice, at least seven days to answer, a representative of the employee's choosing, and a written decision, 5 U.S.C. § 7513(b), followed by an appeal to the Merit Systems Protection Board (MSPB) under § 7513(d). BOP employees facing discipline in the coming weeks should consult a federal employment attorney before the reply deadline runs.

2. A Federal Circuit Reminder for Anyone Whose Agency "Takes Back" a Removal — the Appeal Is Moot Only If You Are Fully Restored, and the Panel Cautioned a Pro Se Appellant About an AI-Drafted Brief Citing a Case That Does Not Exist

Source: U.S. Court of Appeals for the Federal Circuit, October 8, 2026

TL;DR: In Thorogood v. Merit Systems Protection Board, No. 2026-1588 (Fed. Cir. Oct. 8, 2026) (nonprecedential), a panel affirmed the Board's dismissal of a Navy employee's removal appeal as moot. The Navy revoked the employee's eligibility for access to classified information, proposed his removal, placed him on indefinite suspension, and then, mistaking an email about the clearance decision for his reply to the proposal, removed him effective February 16, 2024. Eleven days later, after he filed an MSPB appeal, the agency canceled the removal, reinstated him retroactively to his suspension status, restored his health benefits without a gap, purged the removal from his Official Personnel File, and gave him the reply opportunity it had skipped. The administrative judge dismissed the appeal as moot, the Board denied review in March 2026, and the Federal Circuit agreed: when an agency cancels an appealable action the appeal becomes moot, "thereby depriving the [Board] of jurisdiction," but only if the rescission is complete and the employee is returned to the status quo ante. The agency bore the burden of proving mootness; the appellant bore the ordinary burden of establishing jurisdiction. The panel noted the Board's observation that the brief had "many hallmarks of generative AI use," including "a nonexistent case caption, 'Camble v. Department of Defense,'" and wrote that the court "cautions against unsupported legal arguments."

For federal employees, this means:

• A rescinded removal ends your MSPB appeal only if you are made whole: prior status, pay and benefits restored with no gap, and the action scrubbed from your Official Personnel File. Check each item and raise any shortfall with the administrative judge in writing.
• The agency must prove the rescission is complete, but you must show the Board has jurisdiction, so answer a show-cause order on mootness with dates, SF-50s, and benefit records rather than general objections.
• If you use an AI tool to draft a pleading, verify every case name, citation, and quotation against the actual decision before filing; the Board flagged a fabricated caption here, and the court repeated it in a public opinion.

Legal Insight

Jurisdiction is the appellant's burden by preponderant evidence, 5 C.F.R. § 1201.56(b)(2)(i)(A), and an agency's complete rescission of an appealable action removes it under Board precedent requiring a return to the status quo ante, Price v. U.S. Postal Serv., 118 M.S.P.R. 222, 226 (2012). When an agency corrects an unjustified or unwarranted personnel action, the Back Pay Act, 5 U.S.C. § 5596, restores the pay, allowances, and differentials the employee would have earned, so a "rescission" that leaves pay or benefits unrestored is not complete. An employee whose removal is rescinded mid-appeal should consult a federal employment attorney before conceding mootness.

3. The "Best Day to Retire" Calendars Are Back — Under FERS the Annuity Starts the Month After You Leave, Unused Annual Leave Is Paid at the Rate You Would Have Earned, and Unused Sick Leave Counts

Source: Federal News Network, October 8, 2026

TL;DR: Federal News Network interviewed retirement specialist Tammy Flanagan about the annual "best dates to retire" calendars and what they leave out. Flanagan's rule of thumb under FERS is to leave at the end of a month, because a FERS annuity begins the first day of the following month and OPM does not pay partial months; an employee who retires October 15 and one who retires October 30 both draw their first annuity for November. Employees who carried the 240-hour annual leave maximum into 2026 and want the largest lump sum should look at the end of December, Flanagan said, because unused leave is paid at the rate the employee would have earned by staying on the payroll, which captures any 2027 pay adjustment once the leave period runs past the first pay period of January. Sick leave cannot be cashed out, but since Congress changed the law in 2009 a full year of unused sick leave adds a year of service credit, worth about 1 percent of the high-three salary each year for life. A 2027 raise is unresolved: the President's August alternative pay plan proposed a freeze for most civilian employees and a 3.8 percent increase for law enforcement officers, and Congress has not acted.

For federal employees, this means:

• If your target is the end of 2026, compare December 31 with the end of the last pay period of the leave year and run the numbers both ways: a full month of salary plus a January annuity start versus the leave lump sum priced at the 2027 rate, if there is one.
• If you separate before the leave year ends, everything on the books, including this year's hours above the 240-hour ceiling, is paid in the lump sum; if you stay past the end of the leave year, hours above the ceiling are forfeited unless restored.
• Convert your sick leave balance with OPM's chart (2,087 hours equals one year of credit) and ask HR for an annuity estimate that includes it. Credit counts in whole months only.

Legal Insight

A FERS annuity "commences on the first day of the month after" separation for an employee retiring on an immediate annuity, 5 U.S.C. § 8464(a)(1)(A). The lump-sum payment for unused annual leave "shall equal the pay ... the employee ... would have received had he remained in the service until expiration of the period of the annual or vacation leave," 5 U.S.C. § 5551(a), and OPM's rule requires agencies to include "any statutory adjustments in pay or any general system-wide increases in pay ... that become effective during the lump-sum leave period," 5 C.F.R. § 550.1205(b)(2). Annual leave accumulates to a ceiling of 30 days for most employees, 5 U.S.C. § 6304(a), and unused sick leave is added to total service at 100 percent for separations after December 31, 2013, 5 U.S.C. § 8415(m).

Legal Tip of the Day

When Your Agency Changes Course Mid-Matter, Keep Your Own Record

Agencies sometimes cancel a decision, reissue it, or change course while a matter is still open. If that happens to you, do not assume the change resolves everything or resets your deadlines. Save a copy of every version of the notice, memo, or email you receive, and write down the date each one arrived on a private timeline outside government systems. Then ask in writing what the change means for any pending grievance, complaint, or appeal you have, and who to contact with questions. Check that any pay, benefits, and records tied to the earlier decision match what you were told. Until you have answers in writing, keep every running deadline on your calendar and act before it passes. 

In Case You Missed It

A few quick hits from our recent posts:

Stalled Medical Telework Request? EEOC's Rule Gives Your Agency a Deadline

Five Hatch Act Cases, One Ended a Career: What OSC's Settlements Mean Before the Midterms

SSA Ends Alternative Work Schedules: What the Law Says and What to Do if Your Schedule Is an Accommodation

Worried About Retaliation or Being Targeted for Speaking Up?

If you’ve reported misconduct, safety concerns, discrimination, or waste/fraud/abuse—and now you’re seeing sudden schedule changes, bad performance reviews, or threats of discipline—you may be in whistleblower or retaliation territory.

We represent federal employees who:

• Reported concerns and then saw adverse actions

• Were sidelined, reassigned, or given impossible workloads after speaking up

• Face investigations, PIPs, or proposed removals that look like payback

• Need help navigating OSC complaints, EEO claims, or MSPB appeals tied to retaliation

A free, confidential consultation can help you sort out what’s normal agency behavior and what may cross the line—and what to do before your options narrow.

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Disclaimer:

This briefing is for general informational purposes only and does not constitute legal advice or create an attorney‑client relationship. Federal employment law is fact‑specific and time‑sensitive; you should consult a qualified attorney about your own situation and deadlines. Past results do not guarantee future outcomes.

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