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Today at a Glance
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Hiring "Loyalty Question" Halted: A federal judge in Massachusetts on Friday stayed OPM's "favorite executive order" essay question on federal job applications, finding it likely violates the First Amendment. The ruling does not stop agencies from considering answers already submitted.
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USDA Relocations: A San Francisco judge said he will pause USDA's September 21 report-date deadlines through October 2 in the unions' new lawsuit, but the parties were still fighting over the order's wording Friday, and no signed order had appeared on the public docket.
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Whistleblower Appeals: In a September 1 precedential decision, the MSPB overruled its 2014 and 2016 precedents and held that its judges may decide the agency's "same action anyway" defense even after finding the employee did not prove contributing factor.
Top Stories:
1. A Federal Judge Halts the "Favorite Executive Order" Essay Question on Federal Job Applications — but Will Not Bar Agencies From Using Answers Already Submitted
Source: Government Executive, September 11, 2026
TL;DR: On Friday, September 11, U.S. District Judge George A. O'Toole, Jr. of the District of Massachusetts stayed the use of "Question Three," the essay prompt OPM's May 2025 Merit Hiring Plan placed on federal job announcements at GS-05 and above. The question asks applicants how they would "help advance the President's Executive Orders and policy priorities" and to name one or two executive orders or initiatives "that are significant to you." Three unions (AFGE, AFSCME and NAGE) sued OPM in AFGE v. Kupor, and the judge found they are likely to prove the question is "contrary to constitutional right" under the Administrative Procedure Act (APA) because it asks for an applicant's personal political views without any showing that political allegiance is a legitimate requirement of a civil service job. He rejected the government's argument that the claims had to go through the MSPB or the FLRA first, because the unions were not challenging any individual personnel decision. He denied the unions' second request, an injunction barring agencies from considering answers already submitted, because the unions themselves described the case as "about speech, not employment actions," so that relief would not redress the harm alleged. The stay lasts while the case is litigated; the ruling is preliminary and can be appealed.
For federal employees, this means:
- If you are applying for federal jobs, the question should come off new announcements while the stay is in effect. OPM's guidance had required it on public competitive-service announcements at GS-05 and above and encouraged it on merit-promotion announcements. If you see it on an announcement opened after September 11, save a copy.
- Answers you already submitted are not covered, and nothing in the ruling requires agencies to disregard them. OPM's June 2025 guidance said responses "are not required and will not be scored" and may not be used "to impose an ideological litmus test." If you believe your answer, or your decision not to answer, cost you a selection, that guidance and the merit system principles are the standards to point to.
- The jurisdictional holding matters beyond hiring: a First Amendment challenge to a government-wide policy is not channeled into the MSPB or FLRA system when no individual personnel action is at issue. That is a door for policy-level challenges, not individual cases: a removal, suspension, or non-selection still goes through the Board, the Office of Special Counsel (OSC), or the EEO process.
Legal Insight
The APA lets a reviewing court "preserve status or rights pending conclusion of the review proceedings" "to the extent necessary to prevent irreparable injury," 5 U.S.C. § 705, and requires courts to set aside agency action "contrary to constitutional right," 5 U.S.C. § 706(2)(B). The court also relied on the civil service statute: the merit system principles require that selection and advancement be determined "solely on the basis of relative ability, knowledge, and skills" and that applicants be treated "without regard to political affiliation," 5 U.S.C. § 2301(b)(1)–(2), and it is a prohibited personnel practice to discriminate for or against an applicant on the basis of political affiliation, 5 U.S.C. § 2302(b)(1)(E). An applicant who believes a selection turned on political views can still file a complaint with OSC under 5 U.S.C. § 1214.
2. USDA Relocations: The Judge Says He Will Pause the September 21 Report Deadline Through October 2 — the Written Order Was Still Being Fought Over Friday
Source: Government Executive, September 11, 2026
TL;DR: In the unions' new USDA lawsuit, U.S. District Judge Vince Chhabria of the Northern District of California said at a Thursday, September 10 conference that he intends to enter a "brief administrative stay" of USDA's management-directed reassignment (MDR) deadlines through October 2, with the next hearing set for September 29. He stressed that a stay "doesn't say anything about the merits." The unions' counsel said MDR letters have gone to eight USDA components, that about 200 employees have been told to report to new duty stations starting September 21, and that others must report by October 5; Justice Department counsel objected to any stay. On Friday the parties filed competing versions of the order. The unions' draft would stay every MDR deadline in eight named components through October 2 and bar any removal, separation, or AWOL charge based on an employee's declining or not responding; USDA's redline would limit the stay to the September 21 deadline for moves outside an employee's local commuting area and exclude voluntary or routine reassignments. The unions' reply noted that about 400 employees face an October 2 deadline to accept or decline October 5 report dates, and that Farm Production and Conservation Business Center employees had a September 14 deadline. As of the public docket Friday evening, no signed order had been posted.
For federal employees, this means:
- A judge's stated intention is not an order. Until a signed order is entered and you know it covers your component and your deadline, the date in your MDR letter is still the date. If your deadline falls this week, get written confirmation from HR and your union before that date, and keep proof of whatever you submit.
- Declining a directed reassignment outside your commuting area is ordinarily treated as grounds for removal under chapter 75, with 30 days' advance notice, a right to reply, a written decision, and an appeal to the MSPB (or a grievance, for bargaining-unit employees whose contract still applies). Read your letter for exactly how the agency says it will treat a "decline" or a non-response.
- A stay buys time, not a ruling. Only the preliminary-injunction motion could actually block the moves; September 29 is the date to watch. Use the time to get hardship or reasonable-accommodation requests, discontinued service retirement eligibility, and severance questions answered in writing.
Legal Insight
A removal for declining a directed reassignment is an adverse action under 5 U.S.C. § 7513. Under 5 C.F.R. § 550.703, a separation for declining a reassignment outside the commuting area is "involuntary" for severance-pay purposes if your position description or a written agreement does not provide for such moves, and employees who meet the age-and-service thresholds may qualify for a discontinued service retirement under 5 U.S.C. § 8414(b)(1)(A) if they have not declined a "reasonable offer" within the commuting area, 5 C.F.R. § 842.206. The unions' core claim is that the FY2026 appropriations act bars USDA from relocating offices or employees without advance notice to and approval from the Appropriations Committees (Pub. L. No. 119-37, § 716(a), as quoted in the complaint); no court has ruled on that claim yet. Because a misstep can cost severance or retirement eligibility, employees holding an MDR letter should consult a federal employment attorney or their union representative now.
3. The MSPB Overrules Its Own Precedent: Judges May Now Decide the Agency's "Same Action Anyway" Defense Even When the Whistleblower Loses at Step One
Source: U.S. Merit Systems Protection Board, September 1, 2026
TL;DR: In Rivera v. Department of Justice, 2026 MSPB 8, issued September 1, the two-member Board affirmed a criminal investigator's 30-day suspension for misusing a government vehicle and rejected her affirmative defenses, including whistleblower reprisal. The precedential part is procedural. Since Clarke (2014) and Scoggins (2016), the Board had held that once an administrative judge found an appellant had not proved that a protected disclosure was a "contributing factor" in the action, the judge could not go on to decide whether the agency proved by clear and convincing evidence that it would have taken the same action anyway. Rivera overrules that line. The Board read 5 U.S.C. § 1221(e)(2) as fixing the order in which the two questions are decided, not as forbidding an alternative finding, and noted that federal appeals courts have accepted such alternative findings. The Board also reaffirmed a timing rule: disclosures made after the suspension was proposed and decided could not have contributed to it.
For federal employees, this means:
- Expect administrative judges to rule on both questions in whistleblower cases: whether you proved contributing factor, and whether the agency proved by clear and convincing evidence that it would have acted anyway. Build your record on the second question even if you expect to win the first.
- The clear-and-convincing question turns on the Carr factors: the strength of the agency's evidence, any motive to retaliate on the part of the officials involved, and how the agency treated similar employees who did not blow the whistle. Comparator evidence and proof of what the deciding officials knew, and when, carry that fight.
- Timing still controls step one. A disclosure made after the proposal notice cannot be a contributing factor in that action. Keep dated copies of every disclosure and note who knew about it, and when.
Legal Insight
The Whistleblower Protection Act puts the first burden on the employee: a protected disclosure under 5 U.S.C. § 2302(b)(8) or protected activity under § 2302(b)(9) that was a contributing factor in the personnel action, 5 U.S.C. § 1221(e)(1). It then bars corrective action "if, after a finding that a protected disclosure was a contributing factor, the agency demonstrates by clear and convincing evidence that it would have taken the same personnel action in the absence of such disclosure," 5 U.S.C. § 1221(e)(2). Rivera holds that "after" sets the order of decision rather than barring alternative findings, overruling Scoggins v. Department of the Army, 123 M.S.P.R. 592 (2016), and Clarke v. Department of Veterans Affairs, 121 M.S.P.R. 154 (2014), in relevant part. An appeal that wins only the contributing-factor point can still lose on review if the judge's alternative finding on the agency's defense stands, so an employee with a pending or planned whistleblower appeal should consult a federal employment attorney about litigating both burdens.
Legal Tip of the Day
When Telework Is Changed or Taken Away
A sudden change to telework can create hardship, especially when telework has been long-standing, tied to medical needs, or applied differently to different employees. Ask for the reason in writing and save prior telework agreements, approvals, schedules, and emails showing expectations. Compare how the rule is being applied to similarly situated employees, but avoid refusing to report without understanding the consequences. If telework is connected to a medical condition, consider whether a reasonable accommodation request or update is needed. Do not rely on informal “everyone knows” arrangements as your only protection.
In Case You Missed It
A few quick hits from our recent posts:
EPA Says It Is "Not Bound" by an Arbitrator's RIF Award. Federal Law Says Otherwise.
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Your FY2026 Performance Rating Now Carries RIF Points: Four Moves to Make Before It Closes
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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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