Attorneys for Federal Employees — Nationwide

Nearly 200,000 federal workers and supporters follow our updates across TikTok, Instagram, YouTube, Facebook, and LinkedIn. Each briefing gives you the three stories that actually matter to your job, plain‑English legal  guidance, and one short practice to protect your peace of mind. If it helps you, forward it to a colleague—new readers can subscribe at https://fedlegalhelp.com/newsletter. 

🎧 Listen: Civil Rights for Civil Servants

Shaun Southworth & Lydia Taylor on what's happening to the federal workforce. Latest episode: Apple · Spotify · Amazon Music · Youtube

Listen to the latest episode of Civil Rights for Civil Servants They kept a file on you. It's time you kept one on them. For the last year and a half, federal employees have lived through hiring freeze... player.captivate.fm

Today at a Glance

• MSPB Jurisdiction: The Merit Systems Protection Board has formally struck reduction-in-force, probationary-termination, and suitability appeals from its own regulations effective September 2 — but the Board says appeals already pending, and actions taken before that date, stay with it.
• Schedule Policy/Career: The State Department is screening GS-13 and GS-14 positions for conversion to Schedule Policy/Career, the designation that removes an employee's right to appeal an adverse action to the Board.
• Reservist Differential Pay: A Department of Veterans Affairs attorney who is also an Army Reserve major has sued the Office of Personnel Management for never issuing binding regulations on reservist differential pay, 15 months after the Supreme Court widened who qualifies.

Top Stories:

1. The Board Just Deleted Three Kinds of Appeals From Its Own Rulebook — and Wrote a Grandfather Rule Into the Preamble

Source: Federal Register, August 12, 2026

TL;DR: The Merit Systems Protection Board published a final rule on August 12, 2026, titled "Appellate Jurisdiction Update II," 91 FR 51997 (RIN 3124-AA33), that removes from its regulations every reference to its jurisdiction over three categories of appeals: terminations during a probationary or trial period, reduction-in-force (RIF) actions, and suitability actions. Mechanically, the rule deletes 5 C.F.R. § 1201.3(a)(3) and (a)(9), renumbers the remaining paragraphs, and rewrites the new paragraph (a)(5) so that the only RIF appeal left on the Board's list is the statutory right of a career or career-candidate appointee in the Foreign Service under 22 U.S.C. § 4010a. The rule is a housekeeping consequence of OPM's four final rules published August 3, which moved these three appeal categories to OPM; the Board said it "lacks any discretion regarding this change" and issued the rule without notice and comment. The effective date is September 2, 2026. The most important part for employees is in the preamble: the Board states it will not apply the rule to appeals pending as of September 2, will continue to adjudicate suitability appeals filed before that date, will hear RIF appeals filed after September 2 where the RIF action predates it, and "will not dismiss such appeals on the ground that OPM's final rule displaced the MSPB's jurisdiction." Federal News Network reported the rule on August 13.

For federal employees, this means:

• If your RIF notice, probationary termination, or suitability action came before September 2, the Board says it will still take the appeal — and has said in writing it will not throw it out on jurisdictional grounds. Save the notice and the date on it.
• The filing clock has not changed. An appeal is due within 30 days after the effective date of the action, or 30 days after you receive the agency's decision, whichever is later, under 5 C.F.R. § 1201.22(b). Filing in the wrong place does not pause that clock.
• Foreign Service career and career-candidate appointees keep a separate statutory RIF appeal to the Board under 22 U.S.C. § 4010a. That route was preserved, not removed.

Legal Insight

The Board hears only what "law, rule, or regulation" makes appealable to it under 5 U.S.C. § 7701(a), so when OPM rescinded the regulations that had granted these appeal rights — 5 C.F.R. § 351.901 for RIF, § 731.501 for suitability, and the probationary provisions at § 315.806 and § 315.908(b) — the Board's own list at 5 C.F.R. § 1201.3(a) had to follow, which is why it invoked the good-cause exceptions at 5 U.S.C. § 553(b)(B) and (d)(3). For the next several months the live question will not be whether the transfer happened but which side of September 2 a given action falls on, and the preamble uses two different markers for RIF cases — the date the agency issued the specific RIF notice, and the RIF's effective date. If your action sits anywhere near that window, the date on your paperwork may decide whether an Administrative Judge or OPM decides your case, and it is worth having a federal employment attorney look at it before you file.

2. The State Department Is Handing GS-13s and GS-14s a Questionnaire That Could Cost Them Their Appeal Rights

Source: Government Executive, August 13, 2026

TL;DR: The State Department has expanded its search for employees to reclassify under Schedule Policy/Career, the excepted-service designation created by a June 2026 executive order that initially moved about 8,000 federal employees out of their prior status. Employees told Government Executive that human resources officials are using a short questionnaire to decide whether GS-13 and GS-14 positions are policymaking positions that belong in the schedule. The questions ask, among other things, whether the position "formulates, develops and/or determines foreign policy," whether it "develops or reviews non-public Executive Orders, regulations, directives, policy memoranda, or deliberative materials protected by the deliberative process privilege," whether the employee "provides substantive advocacy of foreign policy," represents the department before Congress or foreign governments, or "exercises delegated authority to commit or bind the Department to policy decisions." One employee said it "is not clear how many 'yes' responses would trigger a new Schedule P/C status." A second said the effort is "moving relatively fast" and that staff have been told to update position descriptions to reflect the full scope of their duties; a third said the review has put a hold on routine reclassification of thousands of GS-13 and GS-14 positions. When the order was signed, a senior administration official said 97% of covered employees were GS-15 or above and that outside OMB "there are very, very few positions that are below the level of GS-15 that are being covered." OPM had earlier estimated about 50,000 employees would fall under the category. State declined to comment on "internal deliberative personnel matters."

For federal employees, this means:

• Ask for your current position description in writing and keep your most recent SF-50. Reclassification runs through the position description, and State employees have been directed to update theirs.
• Schedule Policy/Career does not touch your equal employment opportunity rights. Discrimination, harassment, retaliation, and reasonable-accommodation complaints still run through the federal-sector process, and the deadline to contact an EEO counselor is unchanged.
• Per OPM's own guidance to agencies, pay, leave, benefits, and reduction-in-force rules stay the same for employees moved into the schedule. What changes is the ability to appeal an adverse action to the Board.

Legal Insight

The mechanism is narrow and statutory: Chapter 75's adverse-action protections do not apply to "an employee whose position has been determined to be of a confidential, policy-determining, policy-making or policy-advocating character" by the President or by OPM for a position excepted from the competitive service, 5 U.S.C. § 7511(b)(2). That exclusion, not the label on the schedule, is what removes the appeal to the Board. What it does not remove is the EEO process — 29 C.F.R. § 1614.103 applies to employees and applicants of executive agencies without regard to appointment schedule, and 29 C.F.R. § 1614.105(a)(1) still gives 45 days from the effective date of a personnel action to contact a counselor.

3. A Reservist Says OPM Never Wrote the Rule Congress Asked For — and the Supreme Court Already Settled the Question

Source: Government Executive, August 13, 2026

TL;DR: Marcus Colicelli, a Department of Veterans Affairs attorney and a major in the Army Reserve's Judge Advocate General's Corps, sued the Office of Personnel Management on Wednesday, August 12, seeking an order compelling OPM to issue regulations on reservist differential pay — the payment that covers the gap when a federal employee's military pay is lower than their civilian salary. Congress created the entitlement in 2009. Rather than issue regulations, OPM published policy guidance to agencies that same year, last revised in 2015, requiring an employee to show that the active-duty deployment was "substantially connected" to a particular war or national emergency. In April 2025 the Supreme Court rejected that test, holding that the statute requires only a temporal link between the deployment and a declared national emergency. According to the complaint, OPM twice said during that litigation that it planned to revise the guidance and has not, leaving agencies operating off a document that "continues to instruct employing agencies to the contrary" of a precedential Board decision. The suit frames the gap as the injury itself: "The absence of a binding rule is not incidental to plaintiff's injury; it is the injury." Counsel at Trial Lawyers for Justice said on Thursday that they are recruiting additional reservists in preparation for filing a class-action case with the Merit Systems Protection Board in the coming weeks.

For federal employees, this means:

• If you were called to active duty on or after March 2009 and were denied differential pay because your orders were not tied to a specific emergency, the answer may now be different. Pull your activation orders and your leave-and-earnings statements for the affected pay periods.
• There is no filing deadline for this kind of claim at the Board. Delay is still costly in practice, because records and witnesses get harder to reach.
• Counsel say a class case at the Board is being prepared. Nothing has been certified and no relief has been ordered, so do not assume a filing on your behalf exists.

Legal Insight

5 U.S.C. § 5538 entitles a covered reservist to the amount by which projected civilian basic pay exceeds military pay and allowances for qualifying periods of active duty, and Feliciano v. Department of Transportation, 605 U.S. 38 (2025), held that the statute asks only whether the service coincided in time with a declared national emergency — not whether it was substantively connected to one. The suit's theory is that OPM was obligated to put that entitlement into binding regulations and substituted non-binding guidance, and it asks for relief under the Administrative Procedure Act provision for agency action "unreasonably delayed," 5 U.S.C. § 706(1). Reservist differential claims reach the Board as USERRA appeals under 38 U.S.C. § 4324(b), and there is no limitations period — 38 U.S.C. § 4327(b) and 5 C.F.R. § 1208.12 both say there is no limit on the period for filing. If you think you were underpaid for an activation, a federal employment attorney can tell you whether the pay periods are worth pursuing.

Legal Tip of the Day

Protecting Your Medical Privacy at Work

Medical information may come up during accommodation requests, leave issues, fitness-for-duty questions, or return-to-work discussions. The goal is to provide enough information to address the work-related issue without unnecessarily sharing private medical history. Ask who needs the documentation, where it should be sent, and who will have access. Keep copies of medical notes, forms, and agency requests. When possible, ask providers to describe work restrictions and functional limits rather than broad personal details. Do not discuss sensitive medical information casually with coworkers or send records to large email groups. 

In Case You Missed It

A few quick hits from our recent posts:

State Department Screens GS-13s for Schedule Policy/Career: What the Questionnaire Means

A Notice of Proposed Removal Is Not a Firing: It Starts a 30-Day Clock