Attorneys for Federal Employees — Nationwide

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Today at a Glance

• AI In Federal Hiring: OPM told agencies this week to use artificial intelligence more widely in recruiting, and drew a line — AI may help screen resumes, but promotions, performance management, discipline, and reassignments are treated as high-impact uses where the guardrails are tightest.
• Foreign Service Appeal Rights: A Justice Department legal opinion concludes the Foreign Service Grievance Board cannot have the final word over the Secretary of State, and the Board's remaining members' terms expire October 1.
• Federal Firing Reform: A new report by former federal managers recommends one governmentwide removal process and a single appeals body — and would have agencies routinely order second medical opinions on FMLA and accommodation requests from employees already on a performance improvement plan.

Top Stories:

1. OPM Tells Agencies to Use More AI in Hiring — and Names the Decisions AI Should Not Drive

Source: Federal News Network, August 27, 2026

TL;DR: The Office of Personnel Management (OPM) issued a memo Thursday encouraging agencies to adopt artificial intelligence (AI) more widely in recruiting, saying that without greater AI use agencies may be compromising the effectiveness and efficiency of the federal hiring process. Adam Starr, OPM's chief information officer and a senior advisor, wrote in an agency blog post that agencies have been "overly cautious," and that "[t]oo often, agencies were defaulting to the view that any use of AI in hiring was subject to the high-impact standard. In reality, that is not the case." The guidance identifies four parts of hiring that OPM generally does not consider high-impact: drafting position descriptions and job announcements; screening resumes and supporting candidate qualification and eligibility reviews; pre-offer quality-control reviews; and analyzing post-hire outcomes such as time-to-hire. In each of those areas, OPM said human review must remain central and AI must not be the "principal basis" for a final hiring decision or action. By contrast, OPM said using AI for final hiring decisions, promotions, performance management, discipline, and reassignments would in most cases be high-impact. Agencies must also keep validating whether their tools are producing correct outputs even when a use is not high-impact. OPM said it expects to roll out AI features across USAJobs, USA Staffing, and USA Hire, and the memo builds on the administration's 2025 merit hiring plan and its goal of cutting governmentwide time-to-hire to 80 days.

For federal employees, this means:

•  If you have applied for a federal job recently, software may have helped screen your application. Under this guidance a human review is still supposed to be central, and AI is not supposed to be the principal basis for the decision.
  • OPM's own line-drawing matters inside the workforce, not just at the front door. Promotions, performance management, discipline, and reassignments are the categories OPM treats as high-impact — a useful point of reference if an AI tool shows up in one of those processes at your agency.
  • Keep your own records. Announcement numbers, closing dates, eligibility and preference documents, and any notice you received about your application status are what make a later challenge possible.

Legal Insight

Merit staffing law does not change because the screening is automated. Under 5 U.S.C. § 2301(b)(1), selection and advancement must be determined solely on the basis of relative ability, knowledge, and skills, after fair and open competition. Knowingly taking a personnel action that violates a veterans' preference requirement remains a prohibited personnel practice under 5 U.S.C. § 2302(b)(11), and under 29 C.F.R. § 1630.11 a selection criterion that screens out or tends to screen out individuals with disabilities must be job-related and consistent with business necessity — a standard that applies to an algorithm the same way it applies to a rating panel.

2. Justice Department Says the Foreign Service Grievance Board Cannot Have the Last Word — and the Board Runs Out of Members October 1

Source: Government Executive, August 25, 2026

TL;DR: In an opinion dated August 20, 2026 and released the following day, the Justice Department's Office of Legal Counsel concluded that the Foreign Service Grievance Board's final decisionmaking authority violates the Appointments Clause of Article II. Assistant Attorney General T. Elliot Gaiser wrote that "[t]he Act violates the Appointments Clause by vesting final decisionmaking authority in the Board, rather than the presidentially accountable Secretary," and recommended that the State Department decline to give effect to the portions of the Foreign Service Act that limit the Secretary's review. The opinion relies on United States v. Arthrex, Inc., 141 S. Ct. 1970 (2021), which held that inferior officers' exercise of executive power must at some level be subject to the direction and supervision of a politically accountable officer, and on Trump v. Slaughter, 146 S. Ct. 2283 (2026). The Justice Department said in a press release that the Board may continue to hear grievances but that the Secretary of State "will retain final decision-making authority, as the Constitution requires." Separately, Board Chairman Charles Carron told lawmakers and the State Department in July that no new members have been named, that the terms of the remaining members expire October 1, and that the Board "will cease to function until new members are appointed by the Secretary." Carron reported the Board received nearly three times as many new cases in the first half of 2026 as in the same period a year earlier. The American Foreign Service Association said the opinion "threatens a key safeguard of the professional, nonpartisan Foreign Service."

For federal employees, this means:

• This is not limited to a handful of people. The State Department reported more than 14,000 members of the Foreign Service as of the end of September 2024, and the Board is the sole independent grievance appeals body for the Foreign Service and other foreign affairs agencies within its jurisdiction.
• If you have a grievance pending or are considering one, check the status of your case now and preserve your documents. A board without members cannot decide cases, and the backlog is already growing.
• Under the Justice Department's reading, a Board ruling in your favor would no longer end the matter — the Secretary would have authority to reject it.

Legal Insight

The Foreign Service Act of 1980 provides at 22 U.S.C. § 4137(b) that the Board may direct the Department to correct records, reverse a denial of compensation or benefits, retain or reinstate a grievant with back pay, and award reasonable attorney fees, and at 22 U.S.C. § 4137(c) that Board decisions are final, subject only to judicial review under 22 U.S.C. § 4140. The Office of Legal Counsel would sever 22 U.S.C. § 4137(d)(1) in part and § 4137(d)(3) entirely, leaving the Secretary with the final word; the opinion does not change the statute itself, and judicial review under § 4140 remains available. Board members serve two-year terms and may be removed only for corruption, neglect of duty, malfeasance, or demonstrated incapacity to perform their functions, established at a hearing. 22 U.S.C. § 4135. If you are a Foreign Service member with a live or contemplated grievance, this is a good moment to consult a federal employment attorney about timing and about preserving your options.

3. Former Federal Managers Propose One Removal Process, One Appeals Body — and Routine Second Medical Opinions During a PIP

Source: Government Executive, August 27, 2026

TL;DR: We the Doers, an organization founded by former federal officials Maureen Klovers and April Mohr Harding, issued a report Thursday on federal firing reform. The group convened ten former or current federal managers who had handled a performance or conduct issue as a first- or second-level supervisor; across a dozen cases, an average of 19 months passed between when the manager started the removal process and when the employee resigned, retired, transferred, or was fired. Harding said the group's highest-impact recommendation is a standard, governmentwide removal process, because agency-specific policy and collective bargaining agreement (CBA) provisions produce wide variation in practice. The report also recommends that Congress consolidate all post-removal appeals and investigative processes for federal employees into what the authors call a "new, strengthened, non-political single adjudicatory body," replacing the current split among the Merit Systems Protection Board (MSPB), the Office of Special Counsel (OSC), and the Equal Employment Opportunity Commission (EEOC). Other recommendations include requiring agencies to track "time to fire," assessing supervisors on how they handle performance and conduct issues, and mandating that agencies request agency-funded second medical opinions for most Family and Medical Leave Act (FMLA) or reasonable accommodation requests from employees on an active performance improvement plan (PIP). The authors acknowledged that Trump v. Slaughter, which allows the President to remove members of most independent boards without cause, complicates building a truly independent adjudicator. We the Doers is financially supported by the Fund for Constitutional Government.

For federal employees, this means:

• None of this is law. It is a private report with recommendations to Congress and to agencies — not a rule, an executive order, or a change to your appeal rights today.
• The recommendation most likely to reach you is the second-opinion proposal. It would convert a discretionary tool into a routine step for employees who are already on a PIP.
• If you are on a PIP and you need medical leave or an accommodation, put the request in writing, keep a copy of everything you submit, and note the date you submitted it. That record is what a later case is decided on.

Legal Insight

Federal FMLA already permits a second opinion, but only on a trigger: under 5 U.S.C. § 6383(c), an agency that "has reason to doubt the validity of the certification" may require, at the agency's expense, a second opinion from a health care provider it designates or approves, and 5 U.S.C. § 6383(d) provides for a third opinion if the second conflicts with the first. A routine, PIP-based referral would sit outside that trigger. On the accommodation side, Rehabilitation Act § 501, 29 U.S.C. § 791, and 29 C.F.R. § 1630.14(c) permit medical inquiries of current employees only when they are job-related and consistent with business necessity. Removals themselves still run through 5 U.S.C. § 4303 for unacceptable performance or 5 U.S.C. § 7513 for cause, which carry different notice, evidentiary, and appeal consequences — a distinction worth confirming with a federal employment attorney before you respond to a proposal.

Legal Tip of the Day

When You’re Pulled Into an Internal Investigation

Being involved in an internal investigation can be stressful whether you are a witness, subject, or unsure of your role. Statements made early can shape the entire record and may later affect discipline, clearance, performance, or EEO issues. Before answering, ask who is conducting the investigation, what the topic is, whether participation is required, and whether you may have a representative. Tell the truth, but do not guess, speculate, or fill gaps from memory if you are unsure. Keep personal notes about the interview request and what was discussed. 

In Case You Missed It

A few quick hits from our recent posts:

EEOC Proposal: Your Agency Would Decide Your EEO Case First

EEOC Vote: 30 Days to Comment on 150-Page EEO Overhaul

5 Changes in the EEOC Proposal That Affect Your EEO Case