Attorneys for Federal Employees — Nationwide

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Today at a Glance

• Article II Firings: Forty-six members of Congress and two former OPM directors have filed briefs urging the full Federal Circuit to reverse a Merit Systems Protection Board ruling that, they argue, would let a president treat most career federal employees as at-will workers.
• Performance Ratings: OPM's performance-appraisal rule takes effect Wednesday, August 6, and it bars employees from challenging a rating of record through a union grievance — leaving a narrow 60-day informal request as the main way to fix a rating.
• Veterans' Preference: A senior GSA official publicly blamed veterans' preference for blocking tech hires, a reminder that preference is a legal entitlement with its own enforcement path and a 60-day clock.

Top Stories:

1. Forty-Six Lawmakers and Two Former OPM Directors Ask the Full Federal Circuit to Reverse the "Inferior Officer" Firings

Source: Federal News Network, July 30, 2026

TL;DR: Forty-six House and Senate lawmakers have filed an amicus brief with the U.S. Court of Appeals for the Federal Circuit asking it to reverse the Merit Systems Protection Board's March 2026 decision upholding the removals of two immigration judges, Megan Jackler and Brandon Jaroch. The Justice Department fired both last year, citing the President's authority under Article II of the Constitution to remove "inferior officers" at will, and the Board sustained the removals in a consolidated decision (MSPB Docket No. CF-0752-26-0069-I-1). The lawmakers argue that the reasoning used to classify immigration judges as inferior officers is broad enough to sweep in "countless" other positions, that the dividing line on what counts as an inferior officer "is increasingly blurred," and that the result would be that "the [Civil Service Reform Act] is functionally eliminated and federal employees will no longer have protections against arbitrary removal, reprisal or the assurance of due process." The brief was led by Sen. Chris Van Hollen (D-Md.) and Reps. James Walkinshaw (D-Va.) and Steny Hoyer (D-Md.), co-chairs of the Federal Workforce Caucus, and was filed by attorneys at Gilbert Employment Law. Two former OPM leaders, Rob Shriver and Janice LaChance, filed a separate brief through Democracy Forward, with Shriver stating that "[c]ivil service protections are not about insulating poor performance or limiting accountability" but are "what make it possible to recruit talented public servants, retain critical expertise and ensure that career employees can provide honest, professional advice to leaders of any administration." The American Federation of Government Employees, the AFL-CIO, Justice Connection and Equal Employment Opportunity Leaders have also filed briefs; the Justice Department did not respond to Federal News Network's request for comment, and the court is expected to hear the case en banc later this fall.

For federal employees, this means:

• Nothing about your appeal rights has changed today. The Board's decision stands unless the Federal Circuit reverses it, and the en banc hearing is not expected until the fall.
• If your agency proposes to remove you and asserts constitutional removal authority rather than following Chapter 75, note that assertion and preserve every notice, response, and decision document. The record you build now is what an appellate body reviews later.
• File your Board appeal within 30 days of the effective date of the action even if the agency says the Board lacks jurisdiction. A missed deadline is a separate loss no appellate ruling will fix.

Legal Insight. Chapter 75 of Title 5 gives covered employees at least 30 days' advance written notice of a proposed removal, a reasonable time to answer, representation, and a written decision, 5 U.S.C. § 7513(b), with appeal to the Board under 5 U.S.C. § 7701 and review in the Federal Circuit under 5 U.S.C. § 7703(b)(1). Whether an employee is covered at all turns on the definition at 5 U.S.C. § 7511(a)(1) — which is the ground the Jackler appeal is being fought on, because an employee removed as an "inferior officer" under Article II is treated as outside that definition entirely. The Board's filing deadline is unchanged at 30 days, 5 C.F.R. § 1201.22(b).

2. OPM's Performance-Rating Rule Takes Effect August 6 — and It Purports to Close the Union-Grievance Route to Fixing a Rating

Source:  Federal Register (OPM final rule, "Performance Appraisal for General Schedule, Prevailing Rate, and Certain Other Employees," 91 FR 41521), July 7, 2026 (effective August 6, 2026)

TL;DR: OPM's final performance-appraisal rule (doc. 2026-13715; RIN 3206-AP06), which amends 5 C.F.R. Parts 351, 430, and 537, takes effect next Wednesday, August 6, 2026. The provision with the most immediate practical effect is new 5 C.F.R. § 430.208(k): "Subject to 5 U.S.C. 7116(a)(7), a rating of record may not be challenged through the negotiated grievance procedures established under 5 U.S.C. 7121." OPM explained in the preamble that where a collective bargaining agreement already in effect permits a bargaining-unit employee to grieve a rating of record, such a grievance "will continue up until the term of the agreement expires," after which rating grievances are no longer subject to a negotiated grievance procedure or arbitration. New § 430.208(i) sets out the only ways a rating of record may be changed after issuance: within 60 days of issuance on an informal request by the employee under agency policy; through a formal proceeding other than a barred negotiated grievance, or a bona fide settlement of one; or where the agency determines the rating was incorrectly recorded or calculated. The rule also eliminates the Level 2 rating and prunes the available summary-level patterns, though compliance with § 430.208(e)(1) and (2) is not required until January 1, 2027; removes mandatory higher-level review of Level 1 "Unacceptable" ratings; adds a supervisory critical element at § 430.206(b)(9); and requires OPM to certify agency appraisal systems every two years, § 430.210(b). New § 430.208(c) authorizes OPM to establish a standardized distribution of rating levels that agencies must apply; the regulatory text sets no numeric cap, and OPM stated in the preamble that it intends any distribution to reach only the highest levels (Levels 4 and 5) and that "OPM is not requiring or suggesting any forced ratings distributions at these levels" at this time.

For federal employees, this means:

• Read your next rating of record the day you get it and calendar 60 days. After August 6, the informal request under § 430.208(i)(1) is the practical window for correcting a rating, and it runs from issuance.
• If you are in a bargaining unit, ask your union whether your current agreement is still in its term. Under OPM's stated transition position, a rating grievance filed under an agreement already in effect continues until that agreement expires.
• A rating still carries consequences beyond the rating itself. Ratings feed retention standing in a reduction in force under 5 U.S.C. § 3502(a) and 5 C.F.R. § 351.504, and a Level 1 rating is the predicate for a Chapter 43 performance action.

Legal Insight. Chapter 43 requires agencies to appraise performance against standards that are objective to the maximum extent feasible, 5 U.S.C. § 4302(c), and a removal or reduction in grade for unacceptable performance requires a written opportunity to demonstrate acceptable performance and advance notice, 5 U.S.C. § 4302(c)(6), § 4303(b). What changes on August 6 is not the appeal right attached to a performance-based action — that remains — but the ability to attack the underlying rating through the negotiated grievance procedure of 5 U.S.C. § 7121, now barred by 5 C.F.R. § 430.208(k) subject to 5 U.S.C. § 7116(a)(7). Because ratings drive RIF retention credit and Chapter 43 exposure, and because the correction window under § 430.208(i)(1) is only 60 days from issuance, an employee who believes a rating is wrong should consult a federal employment attorney or their union representative promptly rather than waiting for the consequence to arrive.

3. A GSA Official Says Veterans' Preference Is Blocking Tech Hiring — What Preference Actually Requires, and How a Veteran Enforces It

Source: Government Executive, July 30, 2026

TL;DR: Pete Waterman, the director of FedRAMP — the governmentwide program that sets security and risk standards for cloud products — wrote on LinkedIn that veterans' preference is preventing his team from hiring qualified technologists. "Veterans preference is brutally unfair when taken to the extreme of blocking any consideration of non-veterans, but we're seeing that everywhere these days," he wrote, adding that "[e]ven Tech Force wouldn't let us look at normal folks until we made offers to all the veterans first." Government Executive reported the post drew 127 likes along with criticism, including from a veteran who said many qualified veterans could fill the role and a Treasury Department recruiter who wrote that the better solution is strengthening HR training. GSA did not respond to a request for comment by press time. Tech Force, launched last year to recruit software and data engineers into two-year positions, had onboarded only 180 to 200 hires as of May against an initial goal of 1,000 by the end of March. Jenny Mattingley, a vice president at the Partnership for Public Service who previously worked on federal hiring reform at OMB, said the preference rules have largely gone unchanged since they were created after World War II and that many hiring rules "have really become procedural hurdles rather than achieving the intended outcome" — while noting that agencies retain flexibility in how they apply preference, including applying it after applicants' skills are assessed rather than before.

For federal employees, this means:

• Veterans' preference is a statutory entitlement in hiring, not an agency courtesy. If you are a preference eligible and believe an agency passed you over in violation of preference rules, there is a defined complaint route — and it is short.
• The clock is 60 days. A preference eligible must file a veterans'-preference complaint with the Secretary of Labor within 60 days of the alleged violation; if Labor does not resolve it within 60 days of the complaint, the individual may appeal to the Merit Systems Protection Board.
• Keep the announcement, your application, the notice of results, and any correspondence about your preference claim. Preference cases turn on the vacancy announcement's terms and the order in which the agency considered candidates.

Legal Insight. Who qualifies as a "preference eligible" is defined at 5 U.S.C. § 2108, and preference operates through added examination points and placement on certificates under 5 U.S.C. § 3309 and § 3313; separately, 5 U.S.C. § 3304(f) lets certain veterans apply to merit-promotion announcements open outside the agency. Enforcement runs through the Veterans Employment Opportunities Act mechanism at 5 U.S.C. § 3330a: a complaint to the Secretary of Labor within 60 days of the alleged violation, with an appeal to the Board available under § 3330a(d) if Labor does not resolve it within 60 days. Because that window is short and runs from the violation rather than from when the applicant learns of it, a veteran who suspects a preference violation should consult a federal employment attorney quickly.

Legal Tip of the Day

When Something Feels Wrong at Work

Many federal employees sense a problem before they know whether it is legally significant. The smartest first step is usually to slow down, document, and avoid creating a record that can be used against you. Start a private timeline with dates, names, events, documents, and deadlines. Save key records in a safe personal location when appropriate, and avoid using government systems as your personal evidence file. Do not send emotional emails, sign documents under pressure, guess in investigations, or wait until the situation becomes a removal, resignation, or missed deadline. Southworth PC can help federal employees sort through confusing workplace problems and understand possible next steps.

Programming Note

Our podcast will be delayed this week — our Media Relations Cooridnator Ruby Alosbanos is out, so the new episode will drop Monday, August 3 instead of this Friday.

Also, this week's emails will not include our usual blog post roundup. Don't worry — the content is still coming, just on Instagram instead. Follow us there so you don't miss it: @southworth_pc

We'll be back to our normal schedule next week, and wish Ruby a great, relaxing vacation.