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Today at a Glance
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Article II Firings Reach the Full Federal Circuit: The fired immigration judges’ opening brief is due July 14 in an appeal that could decide whether an agency can remove career employees at will under the Constitution, bypassing the Merit Systems Protection Board (MSPB).
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Suitability Rule Takes Effect July 30: A finalized OPM rule lets OPM and agencies remove sitting employees for “post-appointment” conduct — including late tax filing, refusing a nondisclosure agreement, or misusing government property — through a route that runs outside the usual Chapter 75 process.
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Layoff Rules May Put Performance Over Seniority and Veterans’ Preference: OPM’s still-pending reduction-in-force (RIF) rule would make recent performance ratings the top factor in deciding who stays in a layoff, changing how veterans’ preference and length of service count.
Top Stories:
1. The Full Federal Circuit Takes Up the “Article II Firings” — Fired Judges’ Opening Brief Due July 14
Source: Government Executive, June 17, 2026
TL;DR: The U.S. Court of Appeals for the Federal Circuit has agreed to hear — with all active judges sitting together, known as en banc — the appeal of two former immigration judges, Megan Jackler and Brandon Jaroch, whom the Justice Department removed in 2025 citing the President’s authority under Article II of the Constitution. An administrative judge first overturned the removals, but in March 2026 the Merit Systems Protection Board (MSPB) reversed and relinquished jurisdiction, reasoning that certain non-policymaking “inferior officers” may be removed at will. Under the court’s briefing schedule, the former judges’ opening brief is due July 14, 2026, with the government’s response to follow and oral argument expected later this year. The administration has invoked the same Article II rationale to remove other Justice Department employees, so the ruling could reach well beyond these two cases. The core dispute is whether the Constitution lets an agency sidestep the cause-and-procedure protections Congress wrote into Title 5.
For federal employees, this means:
- The case tests a broad theory — that the Constitution allows removal of certain employees at will, without the cause and advance procedures set by statute. If the theory prevails, more career employees could lose access to MSPB review.
- Watch the posture, not only the outcome: the MSPB “relinquished jurisdiction,” meaning it declined to decide the merits once the agency invoked Article II.
- Nothing about your appeal rights changes today. Employees removed through the ordinary process keep their statutory protections unless and until a court rules otherwise.
Legal Insight:
Federal employees appeal MSPB decisions to the Federal Circuit under 5 U.S.C. § 7703, and adverse actions such as removals ordinarily require cause and advance procedures under 5 U.S.C. § 7513, with Board review under § 7701. The question in this appeal is whether Article II overrides those statutory protections for employees an agency classifies as “inferior officers.” Because this is an appellate test of core removal protections rather than an individual deadline, no immediate action is required — but the decision is one every career employee should track closely.
2. OPM’s “Suitability” Rule Takes Effect July 30 — A New Way to Remove Sitting Employees for Conduct
Source: Government Executive, July 1, 2026
TL;DR: A final OPM rule published in late June takes effect July 30, 2026, and allows both OPM and employing agencies to remove a current employee through a “suitability” action based on post-appointment conduct — a path that runs outside the Chapter 75 adverse-action process most employees know. The new rule extends suitability determinations to sitting employees and expands the listed grounds to include failure to meet legal obligations such as the “timely” filing of tax returns, refusing to sign or violating a nondisclosure agreement, and theft, misuse, or “negligent loss” of government resources or equipment. OPM framed the change as closing a gap between how it treats applicants and employees for the same conduct. For now, the MSPB still hears appeals from suitability determinations, though a separate OPM proposal that would move those appeals in-house has not been finalized. Practitioners quoted by Government Executive have questioned how broadly the new conduct grounds will be read and how much authority the change concentrates at OPM.
For federal employees, this means:
- A conduct issue that once ran through your agency’s Chapter 75 process could instead be handled as a suitability action, which follows different procedures — if you receive a notice, identify which track you are on before you respond.
- The listed grounds are broad. Late tax filing, disputes over a nondisclosure agreement, and “negligent loss” of a government laptop or phone are now potential suitability issues; keep tax filings current and keep records showing you returned government equipment.
- For now, suitability determinations can still be appealed to the MSPB — but the appeal route may change if OPM finalizes a separate proposal, so treat any notice as time-sensitive and calendar the deadline immediately.
Legal Insight:
Suitability is governed by 5 C.F.R. Part 731 and rests on the President’s authority to regulate the conduct of federal employees under 5 U.S.C. § 7301. A suitability action offers an alternative to a Chapter 75 removal under 5 U.S.C. § 7513, which requires at least 30 days’ advance written notice and appeal rights to the MSPB under § 7701. If you receive a proposed suitability action on or after July 30, the response windows are short — consult a federal employment attorney promptly to preserve your appeal rights.
3. OPM’s Pending Layoff Rule Would Put Performance Ahead of Seniority — and Change How Veterans’ Preference Counts
Source: FedSmith.com, July 6, 2026
TL;DR: As OPM finalizes a wave of civil-service rules this summer, one of the most consequential remains pending: a proposed rule that would rewrite how agencies decide who stays in a reduction in force (RIF, the formal term for a layoff). OPM published the proposal on March 5, 2026, and the public comment period closed May 4, 2026. Under the current system, an employee's retention standing is set mainly by tenure group, then veterans' preference, then length of service, with performance a lesser factor used largely to adjust service credit. The proposal would make recent performance ratings the primary factor in setting retention standing and would convert veterans' preference from a near-automatic advantage into a set number of points added to a performance score. OPM describes the change as making layoffs merit-based; unions, veterans' organizations, and many commenters argue it weakens retention protections that Congress built for veterans and long-serving employees. No final rule has been published yet, but the rule sits alongside the performance-appraisal and suitability rules OPM has already finalized this summer, so a final version could follow.
For federal employees, this means:
- If the rule is finalized as proposed, your most recent performance ratings — not your years of service — would most influence whether you survive a layoff.
- Veterans: preference would still count, but as points added to a performance score rather than a near-automatic edge. A veteran with mid-range ratings could rank below a non-veteran with top ratings.
- This is a proposed rule and is not yet in effect. Watch for a final rule and its stated effective date before assuming any change to how a RIF would score you.
Legal Insight:
The RIF retention factors are set by statute at 5 U.S.C. § 3502(a), which directs that they be given effect in order: tenure of employment, then military (veterans’) preference, then length of service, then performance ratings; veterans’ preference is defined at 5 U.S.C. § 2108, with mechanics in 5 C.F.R. Part 351. Whether OPM can place performance ahead of veterans’ preference by regulation is a serious legal question likely to be litigated if the rule is finalized. Employees facing a RIF now are still scored under the existing rules — if you receive a RIF notice, consult a federal employment attorney about your retention standing and appeal rights.
Legal Tip of the Day
When You Receive Counseling or a Written Warning
A counseling memo or written warning may be described as informal, but it can still become part of a larger record. These documents may later be used to support a lower rating, PIP, suspension, removal, or claim that you were warned before. Save the document, identify inaccuracies, gather emails or records that provide context, and consider whether a calm written response should be added to the file. Do not ignore it because it is “not discipline,” and do not respond with sarcasm or anger.
In Case You Missed It
A few quick hits from our recent posts:
The VA Rescinded Disabled Veterans’ Telework — Then Called the Backlash “Absurd”
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Southworth PC Wants to Hear From You: Nominate a Guest for “Civil Rights for Civil Servants”
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Need Help with Discipline or Performance?
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At Southworth PC, we represent federal employees nationwide in:
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Proposed discipline and removals
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Performance issues and PIPs
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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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