Attorneys for Federal Employees — Nationwide

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Today at a Glance

• Shutdown RIFs Rescinded: OMB and OPM have formally rescinded the three 2025 documents that authorized layoff notices and RIF work during a funding lapse, carrying out a September settlement with federal unions that keeps the case open through December 31. The current stopgap funding law runs only through December 11.

• IRS Ratings Cap: IRS employees have been told that "meets expectations" will be the default rating for many under OPM's 40 percent ceiling on top ratings, and an internal email warned against "deliberately choosing mediocrity." Under OPM's new RIF rule, a Level 3 instead of a Level 5 costs four retention points.

• Administrative Leave Guidance: OPM's implementing memo for its revised administrative leave rules, effective November 18, spells out new prohibited uses — including poll work — and a definition of "sole and exclusive discretion" that no agreement can limit.

Top Stories:

1. OMB and OPM Formally Rescind the Shutdown-RIF Documents Under the Unions' Settlement — Contingency Plans Must Stay RIF-Free Through December 31, and Funding Runs Only Through December 11

Source: FEDweek, October 26, 2026

TL;DR: On October 23, OMB Director Russell Vought and OPM Director Scott Kupor signed Memorandum M-27-01, "Status of Documents Addressing RIFs During a Lapse," now posted on the White House website. It states that OMB's September 24, 2025 email — which told agencies to consider issuing reduction-in-force (RIF) notices to employees in unfunded programs during a lapse — and two OPM documents from the same month, which authorized RIF work as an "excepted" activity during a lapse, "have since been rescinded in full and are no longer operative." The memo carries out the settlement signed September 23 in AFGE v. OMB, No. 3:25-cv-08302-SI (N.D. Cal.), the case in which Judge Susan Illston enjoined the roughly 4,200 RIF notices issued during the 43-day lapse of October 1 through November 12, 2025. The settlement gave OMB and OPM 30 days to publish this memorandum and gave every defendant agency 30 days to strip from its shutdown contingency plan any language providing for RIFs during a lapse or for RIF work as an excepted activity, unless a statute expressly allows it. An agency may restore that language only after 30 days' public notice to the unions; the restriction covers plans in effect through December 31, 2026, and the case sits in abeyance until then. The settlement also recites that every lapse-period RIF notice was rescinded and every separated employee reinstated, with State, GSA, and SBA paying back pay as section 116 of Public Law 119-37 required; the stopgap funding law passed in September runs through December 11.

For federal employees, this means:

• Through December 31, no defendant agency's shutdown plan may provide for starting a RIF during a lapse or for RIF work as an "excepted" activity. If funding lapses after December 11 and you receive a RIF notice or are told to process one, tell your union the same day; the settlement lets the unions go back to the judge.
• Pull your agency's posted contingency plan before December 11 and keep a copy; any later change to the RIF language must be noticed 30 days in advance.
• The protection is time-limited: after December 31, or once full-year appropriations are enacted, the case is dismissed, and nothing in the settlement bars an ordinary RIF outside a lapse.

Legal Insight

The Antideficiency Act bars obligations "exceeding an amount available in an appropriation," 31 U.S.C. § 1341(a)(1)(A), and allows the government to accept services during a lapse only for "emergencies involving the safety of human life or the protection of property," which "does not include ongoing, regular functions of government," 31 U.S.C. § 1342; the rescinded documents had treated RIF administration as such an excepted activity. A RIF still requires at least 60 full days' written notice, 5 C.F.R. § 351.801(a)(1), and under OPM's August rule an employee separated, demoted, or furloughed more than 30 days by a RIF now appeals to OPM, not the MSPB, within 30 calendar days of the effective date, 5 C.F.R. §§ 351.901(a), 351.902(b). If a RIF notice arrives, consult a federal employment attorney before that 30-day window closes.

2. IRS Tells Employees "Fully Successful" Is the Default Under OPM's 40 Percent Cap and Warns Against "Deliberately Choosing Mediocrity" — What a Lower Rating Costs in RIF Standing and the 60-Day Window to Contest It

Source: Government Executive, October 26, 2026

TL;DR: OPM's September 21 memorandum caps Level 4 ("Exceeds Fully Successful") and Level 5 ("Outstanding") ratings at 40 percent of an agency's career General Schedule employees for fiscal 2026, with separate 40 percent caps for career SES and senior professionals — "a ceiling, not a target," in OPM's words. IRS employees have been told that a 3, "meets expectations," is the default score many will receive, and Government Executive obtained a Friday email from IRS Chief of Internal Consulting Joseph Ziegler and deputy Elizabeth Vonhof acknowledging "concern, frustration, and, for some employees, disappointment." To employees asking why they should perform at an outstanding level if an Outstanding rating is unavailable, the email says a "fully successful" score "does not mean mediocre" and that "deliberately choosing mediocrity because a particular rating is not guaranteed is not the standard to which we should aspire." It also says managers "must continue to evaluate employees objectively against their established performance standards." About 1,500 IRS employees, by NTEU's estimate, spent much of the year on 120-day details in taxpayer services, and those employees say they do not know how they will be rated for that work. NTEU National President Doreen Greenwald responded that "IRS employees do not need a lecture about taking pride in their work." OPM's memo also says at least 60 percent of bonus pools should go to Level 4 and 5 performers, permits no award for Fully Successful employees, and keeps bargaining-unit employees whose contract bars forced distribution outside the cap until that contract ends.

For federal employees, this means:

• A rating of record "must be based only on the evaluation of actual job performance for the designated appraisal period," 5 C.F.R. § 430.208(a)(1). If the narrative says you exceeded the standard and the summary level says 3, ask your rating official in writing to explain the gap.
• Move within 60 days. An agency may change a rating "within 60 days of issuance based upon an informal request" by the employee, 5 C.F.R. § 430.208(i)(1). Find your agency's procedure, file on time, and attach your accomplishments and detail memos.
• In a bargaining unit, read the performance article: OPM says a contract provision barring forced distribution stays operative until the agreement ends.

Legal Insight

Appraisal systems must use standards that "to the maximum extent feasible, permit the accurate evaluation of job performance on the basis of objective criteria," 5 U.S.C. § 4302(c)(1), and ratings are the statutory basis for "rewarding, reassigning, promoting, reducing in grade, retaining, and removing employees," 5 U.S.C. § 4302(a)(3). OPM's July rule authorized a standardized distribution of rating levels, 5 C.F.R. § 430.208(c), and its August RIF rule, effective September 2, turns each of your three most recent ratings into retention points — 7 for Level 5, 5 for Level 4, 3 for Level 3, 0 for Level 2 or 1 — so a Fully Successful in place of an Outstanding is a four-point swing, more than the three points most preference eligibles receive, 5 C.F.R. §§ 351.503(a), (c)(1), 351.504(a)(2). A rating of record also may not be challenged through a negotiated grievance procedure, 5 C.F.R. § 430.208(k), subject to 5 U.S.C. § 7116(a)(7), which bars enforcing a regulation against a collective bargaining agreement that predates it. If your rating dropped in a year your agency is planning a RIF, consult a federal employment attorney before the 60-day window closes.

3. OPM Issues Implementing Guidance for Its Revised Administrative Leave Rules — Effective November 18, No Paid Leave for Poll Work or Sick-Leave Purposes, and "Sole and Exclusive Discretion" That No Agreement Can Limit

Source: Federal News Network, October 26, 2026

TL;DR: OPM Director Scott Kupor's October 22 memorandum to agency heads (CPM 2026-12) summarizes the final rule OPM published October 19, 91 Fed. Reg. 65924, which revises 5 C.F.R. part 630, subpart N, under 5 U.S.C. § 6329a and amends the RIF and resignation regulations at 5 C.F.R. §§ 351.806 and 715.202, all effective November 18. Federal News Network reported Monday that the rule formalizes paid leave during workforce reductions and RIF notice periods. The memo lists acceptable uses — including leave supporting "workforce realignment initiatives such as deferred resignation programs" — and new prohibited uses: a purpose for which sick leave could be used (with very limited exceptions), investigative purposes once investigative leave under 5 U.S.C. § 6329b applies, and "service as a poll worker or poll observer." Decisions to grant or deny the leave rest in an agency's "sole and exclusive discretion," which the rule defines as discretion that "may not be limited or conditioned by any agreement or established as a mandatory entitlement," and receipt of deferred-resignation benefits such as paid leave is a valid reason to deny a request to withdraw a resignation. OPM calls the revisions "generally consistent" with its existing policies and will update its fact sheet and its July 2025 template for agency policies.

For federal employees, this means:

• Election Day is November 3; the rule takes effect November 18. If you planned to use administrative leave to serve as a poll worker or observer, ask HR now what your agency's current policy allows; after November 18 that use is prohibited, while leave for "a reasonable opportunity to vote on a regular election day" remains an acceptable use, 5 C.F.R. § 630.1403(c)(2).
• Administrative leave during a RIF notice period is pay without duty; it does not change the effective date in your notice or the 30-day window to appeal the separation to OPM.
• Union stewards: compare your agreement's administrative leave provisions to the new definition, and note the date your agreement took effect.

Legal Insight

Administrative leave is a discretionary authority, not an entitlement: 5 U.S.C. § 6329a authorizes it and sets a 10-workday calendar-year limit that OPM applies to investigative uses, after which an agency must use investigative leave under 5 U.S.C. § 6329b with that section's safeguards, as the new 5 C.F.R. § 630.1403(b)(3) makes explicit. The revised 5 C.F.R. § 351.806(b) lets an agency place an employee on administrative leave for all or part of a RIF notice period, and 5 C.F.R. § 715.202(b) lets an agency decline a request to withdraw a resignation "only when the agency has a valid reason and explains that reason to the employee."

Mindful Moment of the Day

The Rating You Did Not Expect

You open the email and see the number: a 3, when your work felt like more. Notice what your body does first, perhaps a tight jaw or a sinking feeling in your chest. Put both feet on the floor and take three slow breaths, longer on the exhale. Say silently, "This stings, and I can still choose my next step." Then take one small step: write down two things you accomplished this year, or pick a calm moment this week to ask your supervisor to talk it through. Mindfulness here does not mean pretending the number does not matter; it means feeling the sting without letting it define how you see your own work. 

In Case You Missed It

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OPM Broke the Privacy Act With DOGE Access. Will Federal Employees Get Paid?

Two Marines Sue the Pentagon Over the DMDC Data Breach: How Privacy Act Damages Work

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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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