Attorneys for Federal Employees — Nationwide

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Today at a Glance

• Reservist Differential Pay: Five federal employees who serve in the Army and Navy Reserve filed a class action before the Merit Systems Protection Board on Wednesday, asking the Board to order DoD, DOJ, and VA to pay differential pay owed as far back as 2009. The filing relies on the Supreme Court's 2025 Feliciano decision and on USERRA's rule that there is no filing deadline.

• 2027 Pay Raise: Federal Workforce Caucus leaders said Wednesday that the most likely path to overriding the planned 2027 civilian pay freeze is a rider on the spending bill Congress must pass before the December 11 deadline. Any raise enacted late could be made retroactive, as happened in 2019.

• Your 2026 Benefits, Reviewed: Government Executive published a one-stop guide to what changed in federal retirement, insurance, Social Security, and TSP rules this year, with the September CPI release on October 14 set to fix the 2027 COLA and Open Season plan data due next month.

Top Stories:

1. Reservists File a Class Action at the MSPB for Differential Pay Going Back to 2009 — What the Law Requires, and How Any Reservist Can File a Claim

Source: Military Times, September 23, 2026

TL;DR: Five current and former federal civilian employees who also serve in the Army and Navy Reserve filed a class action before the Merit Systems Protection Board on Wednesday, September 23. The named employees are two assistant U.S. attorneys, an Army Office of General Counsel attorney, an Army JAG Corps attorney, and a GS-12 healthcare engineer at the Orlando VA Healthcare System; the class action names the Departments of Defense, Justice, and Veterans Affairs. According to the motion described by Military Times and Stars and Stripes, each named employee served on active duty during a declared national emergency, had civilian basic pay that exceeded military pay in at least one pay period, and was paid no differential. Some of the service dates back to 2016, and two of the reservists are on orders through September 30. Andrew Tutt, who argued Feliciano v. Department of Transportation at the Supreme Court, is counsel for the class. The filing says the government twice told the Supreme Court it would revise its differential-pay guidance and has not done so, and it seeks to reach claims that an existing class action in the Court of Federal Claims, Platero v. United States, cannot reach because of that court's six-year statute of limitations.

For federal employees, this means:

• If you are a Guard or Reserve member who served on active duty at any point since March 2009 while a national emergency was in effect, and your civilian pay was higher than your military pay for any pay period in which you took no paid leave, you may be owed differential pay. Pull your military orders and your civilian leave and earnings statements for every period of service.
• The class action is only one path. An individual USERRA appeal to the MSPB is available now, does not require a filing deadline, and can be filed directly with the Board without first going to the Department of Labor.
• The Supreme Court decided the legal question in April 2025. An agency that still requires you to show that your service was connected to a specific emergency is applying a test the Court rejected; keep the denial in writing.

Legal Insight

The differential-pay statute, 5 U.S.C. § 5538(a), entitles an employee absent from federal civilian employment to perform active duty under 10 U.S.C. § 12304b or a provision listed in 10 U.S.C. § 101(a)(13)(B) to the amount by which civilian basic pay for the pay period exceeds military pay and allowances, and § 5538(c) requires the employing agency to pay it, to the extent practicable, at the same time and in the same manner as basic pay. In Feliciano v. Department of Transportation, 605 U.S. 38 (2025), the Supreme Court held that the statute imposes only a temporal condition: the service need only occur during a declared national emergency, not in support of it. Differential-pay claims are enforceable as USERRA claims at the MSPB under 38 U.S.C. § 4324(b), which allows an employee to file directly with the Board, and 38 U.S.C. § 4327(b) provides that there is no limit on the period for filing a USERRA complaint with the Board; under § 4324(c)(2) and (4), the Board must order compensation for lost wages and must award attorney fees to an employee who prevails. Because the class action's scope and any opt-in mechanics are not yet settled, reservists with older claims should consult their union representative or a federal employment attorney before deciding whether to file individually.

2. Democrats Outline a Last-Ditch Plan for a 2027 Pay Raise — a Rider on the December Spending Bill, With a Retroactive Fallback

Source: Federal News Network, September 23, 2026

TL;DR: This story continues the pay-freeze lane we covered Tuesday; the new development is a concrete legislative plan. At a press conference Wednesday, leaders of the Federal Workforce Caucus, including Rep. James Walkinshaw, Rep. Steny Hoyer, and Sen. Chris Van Hollen, said the most likely way to override the administration's planned 2027 pay freeze for most civilian employees is to attach the FAIR Act's 4.1 percent raise as a rider to the appropriations package Congress must negotiate before the current continuing resolution expires on December 11. As a fallback, the lawmakers and union officials said all civilian employees should at minimum receive the 3.8 percent raise the President has planned for federal law enforcement. Walkinshaw told reporters that federal workers should know this is going to be a fight with no guaranteed outcome, and Hoyer put the working window at five or six weeks after the midterm elections. Republican-led appropriations committees have not signaled any intent to depart from the freeze. NARFE's John Hatton pointed to the February 2019 precedent, when Congress enacted a 1.9 percent raise retroactive to the first full pay period in January after the President had implemented a freeze, and said a 2027 raise could likewise be made retroactive even if a spending deal slips into early 2027.

For federal employees, this means:

• Nothing has changed yet: unless Congress acts, most General Schedule employees will see no across-the-board or locality increase in January 2027, while law enforcement officers and the military receive raises.
• If a raise is enacted late, it can be made retroactive to January. Do not assume a delayed deal means a lost raise, and keep your January leave and earnings statements so any retroactive adjustment can be checked.
• The decision point is the December 11 funding deadline and the lame-duck session that follows. Union and association updates will track the appropriations text, which is where any pay provision would appear.

Legal Insight

Under 5 U.S.C. § 5303(b), the President may issue an alternative pay plan that reduces or eliminates the annual General Schedule adjustment on a finding of national emergency or serious economic conditions, and the August alternative plan does that for 2027; the locality adjustment under 5 U.S.C. § 5304a can be limited the same way. Congress can override an alternative plan by statute, and it has done so through appropriations riders, as it did with the retroactive 1.9 percent raise in 2019. Until an appropriations act with a pay provision is signed, the alternative plan controls the January 2027 pay tables.

3. Your Federal Benefits Changed This Year — Government Executive's Year-in-Review, and Four Dates to Watch This Fall

Source: Government Executive, September 24, 2026

TL;DR: Government Executive's Tammy Flanagan published a comprehensive guide Thursday to the 2026 changes in federal retirement, insurance, Social Security, Medicare, and TSP rules, with links to the official sources and a status check on pending legislation as of September 24. The guide reports that the 2026 retiree COLAs were 2.8 percent for CSRS and 2.0 percent for FERS; that 2026 enrollee premiums rose 12.3 percent on average for FEHB and 11.3 percent for PSHB; that the 2026 TSP elective-deferral limit is $24,500, with catch-up limits of $8,000 for ages 50 to 59 and 64 and older and $11,250 for ages 60 to 63; and that beginning in 2026, catch-up contributions must be made as Roth for participants whose prior-year FICA wages from their TSP-contributing employer exceeded $150,000. It also reports OPM's August retirement-processing figures: 7,618 claims received, 15,281 processed, 15,427 pending, and an average processing time of 70 days for digital claims and 150 days for paper. Looking ahead, the article notes that the September CPI release on October 14 will supply the final CPI-W figure that sets the 2027 Social Security and federal retirement COLAs, and that OPM will begin publishing 2027 plans, premiums, and coverage information ahead of Open Season. On legislation, the guide counts that only about 2 percent of measures in the 119th Congress have been enacted in any form and lists the FAIR Act, the Equal COLA Act, and several TSP bills as still in committee.

For federal employees, this means:

• Mark four dates: October 14 (the CPI release that fixes the 2027 COLA), the Open Season window that begins the second full workweek of November, the January 2027 pay adjustment or freeze, and the January effective date of any Open Season change.
• If your 2025 FICA wages from your agency exceeded $150,000, any 2026 catch-up contribution is being made as Roth, which affects this year's taxable income; check your TSP election now rather than in December.
• If you are retiring this fall, the digital retirement application is averaging roughly half the processing time of paper; file digitally and confirm your agency has submitted a complete package.

Legal Insight

Open Season is set by regulation: 5 C.F.R. § 890.301(f)(1) runs it from the Monday of the second full workweek in November through the Monday of the second full workweek in December, and § 890.301(f)(4) makes an Open Season change effective the first pay period beginning in January. The FERS COLA formula is statutory: under 5 U.S.C. § 8462(b)(1), if the CPI-W increase for the base quarter is 3 percent or less, the FERS COLA is the lesser of that increase or 2 percent, and if the increase exceeds 3 percent, the FERS COLA is the increase minus one percentage point, which is why FERS retirees receive less than the full Social Security COLA in most years; § 8462(c)(3) also withholds the adjustment from most FERS annuitants under age 62. None of these dates or formulas can be changed by an agency; they change only by statute or OPM rulemaking.

Legal Tip of the Day

Your Pay Records Are Your Evidence

When a pay question comes up, whether it is a differential that never arrived, a step increase that did not appear, or a retroactive adjustment you were told to expect, the answer usually turns on documents. The mistake many people make is assuming payroll will catch and fix the error on its own. Save your leave and earnings statement every pay period, along with any orders, personnel actions, and pay-related emails, and keep copies outside government systems. If a figure looks wrong, ask payroll or HR in writing what it should be and how it was calculated, and note the date you asked. Different pay claims can have different deadlines, so ask early which apply to you. Do not assume silence from payroll means the question is closed. 

In Case You Missed It

A few quick hits from our recent posts:

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