Attorneys for Federal Employees — Nationwide

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Today at a Glance

• Federal Firing Rules: OPM and the MSPB released a joint proposed rule that would cap performance plans at 30 days and end the Board's use of the long-standing Douglas factors when reviewing penalties. 
• EPA And The First Amendment: Seven former EPA employees fired as probationers over a 2025 "declaration of dissent" have sued, testing how far free-speech protection reaches when there is no MSPB appeal.
• Employee Viewpoint Survey: OPM proposed handing the annual employee survey to individual agencies and cutting the required core questions from 16 to 10.

Top Stories:

1. OPM and the MSPB Move to Rewrite How Feds Are Fired — and to Retire the Douglas Factors

Source: Federal News Network, July 1, 2026

TL;DR: The Office of Personnel Management (OPM) and the Merit Systems Protection Board (MSPB) released an 81-page joint proposed rule on July 1, posted for public inspection ahead of Federal Register publication, that would change how agencies discipline and remove employees and how the Board reviews those actions. The proposal makes three main changes. First, it would require annual — rather than every-three-years — training for supervisors, managers, and executives under 5 C.F.R. § 412.202(b), modifying four existing subjects and adding eight new ones. Second, it would cap a performance improvement plan (PIP — the formal period to show acceptable performance) at 30 calendar days, bar informal "pre-PIPs," and press deciding officials to rule on a proposed removal within 30 calendar days; it would also bar settlement agreements that scrub documented poor performance or misconduct from personnel files. Third, and most consequential, the MSPB would stop applying the 12 "Douglas factors" — the penalty-review framework used in adverse-action cases since 1981 — and instead judge whether a penalty falls "within the tolerable limits of reasonableness" under the totality of the circumstances. OPM Director Scott Kupor said the current process is too slow and mechanical; American Federation of Government Employees (AFGE) President Everett Kelley said the change would unravel nearly 50 years of precedent, and a former MSPB vice chairman questioned the Board's independence given the joint rulemaking. The comment period runs 30 days.

For federal employees, this means:

• If you face proposed discipline, the case for a lesser penalty may no longer run through the familiar 12 Douglas factors; build your mitigation record — length of service, past performance, and inconsistent treatment of others — into your written and oral reply now.
• A PIP could be as short as 30 days. Ask for the performance standards in writing, confirm what "acceptable" looks like, and document your work throughout the period.
• The rule is a proposal, not final. The comment period is open for 30 days, and employees, unions, and HR professionals can file comments at regulations.gov.

Legal Insight:

Chapter 75 requires an agency to show that discipline promotes "the efficiency of the service," 5 U.S.C. § 7513, and the Board reviews the reasonableness of the penalty once it sustains the charges, 5 U.S.C. § 7701(c). The Douglas factors come from Douglas v. Veterans Administration, 5 M.S.P.R. 280 (1981) — a Board decision, not a statute — so the MSPB can change how it reviews penalties by rule, though any change would reach real cases only after the rule is finalized. Performance-based actions and PIPs arise under Chapter 43, 5 U.S.C. §§ 4302–4303, and 5 C.F.R. § 432.104. Because this proposal could shorten the time to respond and reshape how penalties are judged, an employee who receives a PIP or a proposed removal should consult a federal employment attorney early.

2. Seven Fired EPA Employees Sue on First Amendment Grounds — Probationary Status Left No MSPB Appeal

Source: Federal News Network, June 30, 2026

TL;DR: Seven former Environmental Protection Agency (EPA) employees sued the agency on June 30, alleging their 2025 terminations violated the First Amendment. The firings followed a June 2025 public "declaration of dissent" signed by hundreds of EPA employees that criticized Administrator Lee Zeldin's policies; the agency investigated signers, and dozens received proposed removals or unpaid suspensions. What sets these seven apart is that they were still in their probationary periods when they were fired, which left them without the usual right to appeal to the MSPB — so they went to federal district court on constitutional grounds. The suits, filed on the first anniversary of the letter in the U.S. District Courts for the District of Columbia and the Northern District of Illinois, seek reinstatement and back pay. The employees, represented by Democracy Forward and the law firm James & Hoffman, P.C., argue they signed on their own time, without agency resources, on a matter of public concern. Twenty-one Senate Democrats wrote Zeldin urging him to reverse the actions and clear the employees' records. EPA did not immediately comment.

For federal employees, this means:

• Federal employees keep First Amendment protection for speech on matters of public concern made as private citizens — but that protection is weighed against the agency's operational interests, and the analysis is fact-specific.
• Probationary employees generally cannot appeal a removal to the MSPB, so a constitutional claim or a whistleblower complaint may be the only avenue; preserve the dates, the speech itself, and proof that you acted on your own time.
• Speech tied to your official duties, or made using government time or equipment, receives far less protection — keeping advocacy separate from your job helps protect it.

Legal Insight:

Most competitive-service employees must complete one year of current continuous service before they qualify as an "employee" with adverse-action appeal rights, 5 U.S.C. § 7511(a)(1)(A); probationers who fall short generally cannot appeal a removal to the Board, which is why these plaintiffs turned to federal district court. A public employee's speech as a private citizen on a matter of public concern can be protected under the First Amendment, subject to the balancing test of Pickering v. Board of Education, 391 U.S. 563 (1968); speech made pursuant to official duties is generally not protected, Garcetti v. Ceballos, 547 U.S. 410 (2006). Employees who believe they were disciplined for a protected disclosure may also have a separate route through the Office of Special Counsel under 5 U.S.C. § 2302(b)(8). A probationer facing removal for protected speech or a protected disclosure should consult a federal employment attorney quickly, because the available forum and its deadline depend on the specific theory.

3. OPM Proposes to Hand the Annual Employee Survey to Agencies and Trim Its Core Questions

Source: Federal News Network, July 2, 2026

TL;DR: OPM proposed a rule on July 2 that would hand day-to-day administration of the annual employee survey to individual agencies instead of OPM continuing to run the governmentwide Federal Employee Viewpoint Survey (FEVS) itself. The proposal would cut the required core questions from 16 to 10 beginning with the 2026 cycle, keeping what OPM calls the most "probative" items on leadership and satisfaction and dropping others. Agencies could add their own questions and would draw the standardized "common form" from OPM, then report results to OPM and the Office of Management and Budget (OMB) within 90 days so data can still be compared across government. OPM canceled the 2025 FEVS and has said it wants the survey to better measure a performance-based culture. The survey would be administered by the end of the calendar year, and the public has 60 days to comment. Sen. Chris Van Hollen objected to dropping questions that help show whether agencies are adequately staffed and skilled.

For federal employees, this means:

• The FEVS is one of the few public measures of morale, staffing, and leadership at your agency; fewer standardized questions may make it harder to compare your agency year over year, or against others.
• Watch for your agency's survey window before December 31 — participation is how workforce concerns get documented in an official, cross-government dataset.
• The proposal is open for public comment for 60 days at regulations.gov; agencies, unions, and employees can weigh in on which questions stay.

Legal Insight:

Federal law requires each agency to survey its employees every year — a mandate that traces to section 1128 of the National Defense Authorization Act for Fiscal Year 2004, Pub. L. No. 108-136, codified at 5 U.S.C. § 7101 note and implemented at 5 C.F.R. §§ 250.301–250.302. Those regulations set the topic areas an annual survey must cover — including leadership, the work environment, and professional development — and require agencies to report their results. Because this is a proposed rule, the current requirements remain in place until any final rule takes effect, and the 60-day comment period is the public's formal opportunity to respond under the notice-and-comment process of the Administrative Procedure Act, 5 U.S.C. § 553.

Mindful Moment of the Day

The After-Meeting Reset 

Some meetings end, but your body stays in them. You may leave a tense Teams call or SES briefing still replaying a comment, a deadline, or a disagreement. Before jumping straight into the next email, take 60 seconds to close the meeting in your body. Look away from the screen, relax your hands, and take three slow breaths. Write one sentence: “The next step from that meeting is ______.” Then let the rest of the noise settle. This small reset helps you carry forward the useful information without dragging the whole emotional weight of the meeting into the next task. 

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