Attorneys for Federal Employees — Nationwide

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Today at a Glance

• VA Contract Fight — New Motion: AFGE has asked the Rhode Island federal judge for an "indicative ruling" under Rule 62.1 that would restore the VA master agreement if the First Circuit sends the case back; the VA says the motion has "no immediate effect" and wants its full 14 days to respond.

• FBI "Article II" Firings — Lawsuit: Nine FBI employees fired in February over the Mar-a-Lago classified-documents investigation have sued in D.C. federal court for reinstatement and back pay, pleading First Amendment, due process, and separation-of-powers claims.

• Senior Professional Ratings — New Rule: OPM and OMB finalized a separate appraisal system for roughly 2,500 SL and ST employees, effective November 18, that allows forced rating distributions and feeds ratings into pay, RIF credit, and removals.

Top Stories:

1. AFGE Asks the Judge for an "Indicative Ruling" to Restore the VA Contract While the Appeal Is Pending — the VA Says the Motion Would Have "No Immediate Effect" and Wants Its Full 14 Days to Respond

Source: Government Executive, October 20, 2026

TL;DR: Late Friday, October 16, AFGE's National VA Council and Local 2305 filed a motion in the U.S. District Court for the District of Rhode Island asking Judge Melissa DuBose to modify her preliminary injunction and issue an "indicative ruling" under Federal Rule of Civil Procedure 62.1 — a statement that she would restore the master agreement for the rest of negotiations if the First Circuit sends the case back for that purpose (AFGE v. VA, No. 1:25-cv-00583, Dkt. 80). The motion follows the First Circuit's October 5 decision that her earlier order reinstating the contract improperly modified an injunction already on appeal, and the VA's announcement last week that the contract has expired for more than 95 percent of its bargaining-unit employees. AFGE argues the agreement's automatic-extension clause was triggered when the VA asked to renegotiate, and that the parties kept negotiating ground rules until management went to the Federal Service Impasses Panel last month; it filed a national grievance the same day alleging bad-faith bargaining and contract violations. On Monday the VA opposed AFGE's request to cut its response time in half, writing that an indicative ruling "even if granted, would have no immediate effect," that "the First Circuit is under no obligation to remand before it resolves the appeal," and that the VA's own appellate brief is not due until November 23 (Dkt. 81). Unless the judge shortens the schedule, the VA has 14 days under the local rule to respond, so nothing changes in VA workplaces this week.

For federal employees, this means:

• Nothing restores the contract today. An indicative ruling is a signal to the appeals court, not an order; the First Circuit would have to remand before Judge DuBose could act, and briefing in that appeal runs at least through November 23.
• The VA's October 8 guidance that the agreement "no longer applies" to most of the bargaining unit stays in place for now: grievances, arbitrations, and union office space under the master agreement are not being honored, and union equipment is due back October 22, per Federal News Network's October 15 report. Police, firefighter, and security positions exempted from the executive orders remain covered.
• Your statutory rights do not depend on the contract. Adverse-action notice and reply rights under 5 U.S.C. § 7513(b), the 45-day EEO counselor contact deadline under 29 C.F.R. § 1614.105(a)(1), and whistleblower protections under 5 U.S.C. § 2302(b)(8) all run with or without an agreement.

Legal Insight

Rule 62.1 exists because a district court loses the power to change an order once that order is on appeal; the rule lets the court state that it "would grant the motion if the court of appeals remands for that purpose," and Federal Rule of Appellate Procedure 12.1 then lets the court of appeals remand. The union's parallel national grievance rests on the negotiated grievance procedure required by 5 U.S.C. § 7121, which the VA says expired with the contract, while a refusal to bargain in good faith is an unfair labor practice under 5 U.S.C. § 7116(a)(5). If you have a pending grievance, an arbitration date, or a deadline the contract used to govern, consult a federal employment attorney or your union now about preserving the claim in a forum that does not depend on the agreement.

2. Nine FBI Employees Fired Over the Mar-a-Lago Documents Case Sue in D.C. Federal Court — the Complaint Says "Article II" Letters Replaced the Cause, Notice, and Reply Rights the Law Gives FBI Executives and Preference-Eligible Veterans

Source: Federal News Network (Associated Press), October 16, 2026

TL;DR: Nine FBI agents, intelligence analysts, and staff operations specialists fired in February filed suit Thursday in the U.S. District Court for the District of Columbia (Bacon v. Patel, No. 1:26-cv-03604, assigned to Judge Amy Berman Jackson). The complaint says all nine were assigned to counterintelligence and counterespionage squads that worked the investigation of classified documents at Mar-a-Lago, and that each was terminated over two days in February by a letter from Director Kash Patel citing "Article II," with no investigation, notice, hearing, or appeal — while their SF-50s recorded the terminations as not "for cause." The AP reports that Patel has told Congress the fired employees "weaponized" the FBI and that terminations follow internal investigations; the plaintiffs say they were never told they were under any internal investigation. The complaint pleads three counts: First Amendment retaliation, Fifth Amendment due process, and, for plaintiffs Jennifer Bacon and Jeremy Linton, a separation-of-powers claim that the FBI Director has no "Article II" removal power of his own. It seeks reinstatement, back pay, and declaratory relief; the government has not yet responded.

For federal employees, this means:

• Most FBI employees have no MSPB appeal. 5 U.S.C. § 7511(b)(8) excludes FBI positions from the adverse-action chapter unless the employee is a preference-eligible veteran, which is why this case is in district court rather than before the Board.
• FBI executives are not at-will either. Under 5 U.S.C. § 3151(a)(5)(D), the FBI's separate Senior Executive Service rules must provide for removal "consistent with subsections (a), (b), and (c) of section 7543" — cause, 30 days' advance written notice, a reply with evidence and a representative, and a written decision. The complaint says Bacon, an FBI SES member since January 2025, received none of that.
• If you receive a termination letter that cites "Article II" and no proposal, your deadlines start anyway. A preference-eligible excepted-service employee has 30 days from the effective date to appeal to the MSPB under 5 C.F.R. § 1201.22(b), and this complaint illustrates the court route for employees with no Board appeal.

Legal Insight

The Civil Service Reform Act channels most removal disputes to the MSPB, but Congress carved the FBI out of 5 U.S.C. chapter 75 in § 7511(b)(8) and instead required, in § 3151, that the FBI's executive service carry the § 7543 cause-and-procedure protections. The due process count rests on that statutory structure plus the FBI's own OPR policy guide and penalty guidelines, which the plaintiffs say created a legitimate expectation that non-probationary employees would be removed only for misconduct or performance; for the two preference-eligible plaintiffs, the complaint says 5 U.S.C. § 7513 applied in full and none of its steps occurred. An FBI, intelligence-community, or other excluded-service employee who receives a summary termination should consult a federal employment attorney quickly, because which forum is open — the Board, the agency's internal process, or a court — turns on the appointment, veteran status, and the words in the letter.

3. OPM and OMB Finalize a Separate Performance System for "Senior Professionals" — Forced Rating Distributions Are Now Allowed, Ratings Are "Not Appealable" Beyond Existing Law, and the Rule Takes Effect November 18

Source: FEDweek, October 19, 2026

TL;DR: OPM and OMB published a final rule Monday creating a new subpart E of 5 C.F.R. part 430 for senior-level (SL) and scientific or professional (ST) employees — the roughly 1,700 SL and nearly 800 ST positions above GS-15 that are paid under 5 U.S.C. § 5376 but carry no supervisory duties. 91 Fed. Reg. 65904 (Oct. 19, 2026). Effective November 18, each agency must run an OPM-approved appraisal system modeled on the SES rules: critical elements, a "mathematical method" to derive the rating, five summary levels, an initial summary rating the employee may answer in writing, a higher-level review on request, and a Performance Review Board at any agency with ten or more senior professionals. The rule removes the prior prohibition on forced distributions and provides that OPM "may establish, and refine as needed, a standardized distribution of some or all rating levels" that agencies must apply, with Schedule C and Schedule G appointees excludable. OPM pointed to data showing about 90 percent of senior professionals rated at Levels 4 or 5 in fiscal years 2023 and 2024 and fewer than half of one percent below Level 3. FEDweek notes that OPM's implementing memo for the September forced-distribution rules already applied the 40 percent cap on the top two levels to senior professionals generally.

For federal employees, this means:

• If you are an SL or ST employee, your agency must submit a new appraisal system to OPM for approval; expect a new performance plan with critical elements and written standards for each of the five levels (5 C.F.R. § 430.506).
• The rule states that senior professional appraisals and ratings "are not appealable, beyond what is otherwise provided under applicable law or regulation" (§ 430.509(e)). What remains is the written response to the initial summary rating and the higher-level review under § 430.509(f), plus the EEO or whistleblower channels if a rating is retaliatory.
• A rating now carries RIF and removal weight: amended 5 C.F.R. § 351.503 uses the new summary levels for RIF retention credit, and § 430.512(c) ties suspension, demotion, or removal for unacceptable performance to 5 U.S.C. §§ 4303, 7503, and 7513.

Legal Insight

OPM relies on 5 U.S.C. § 4305 for its authority, and senior professionals remain covered by subchapter I of chapter 43, so a performance-based removal still must satisfy 5 U.S.C. § 4303 — a performance plan, an opportunity to demonstrate acceptable performance, and 30 days' advance written notice — or the adverse-action procedures of § 7513. The forced-distribution authority in § 430.505(d) is new, but a rating must still track the written standards in your plan. Keep your plan, your accomplishment record, and your written response to the initial summary rating, because that file is what a Performance Review Board, a RIF retention register, or an MSPB Administrative Judge will see.

Mindful Moment of the Day

Holding the Unsettled Question

You hear that a contract you rely on may or may not still apply, and that a court will not say for weeks. Notice what your body does: the tight shoulders, the urge to refresh the news every few minutes. Put both feet on the floor and take three slow breaths, longer on the exhale. Say silently, "I do not have to know how this ends today." Then take one small step: write down the one deadline or document you can actually check, and put it on your calendar for later this week. Mindfulness here does not mean pretending the uncertainty is small; it means letting your mind rest on what you can do while the rest stays open. 

In Case You Missed It

A few quick hits from our recent posts:

VA Says Your Union Contract Expired. The Court Order It Cites Calls the Question "Unresolved."

BOP Lost in Court, Re-Terminated Its Union Contract Anyway, and Lost Again

Student Loan Default Crackdown Reportedly Planned for After the Election: What Federal Employees Should Know

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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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