Attorneys for Federal Employees — Nationwide

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Today at a Glance

• FEMA Staffing Ruling: A federal judge in San Francisco held Friday that the Department of Homeland Security broke the law when it took over FEMA's authority to renew its on-call disaster workforce and directed a plan to cut FEMA's staff in half. What relief the separated employees receive is still to be decided, with a joint filing due October 9.

• FEHB Plan Options: OPM published a request for information in today's Federal Register asking whether health plans should be allowed to offer more, fewer, or different options than the current three-option limit. Comments are due November 16, and nothing changes for this fall's Open Season.

• Law Enforcement Retirement: Nineteen House Republicans asked OPM to review whether federal police officers at Defense, VA, the Pentagon Force Protection Agency, and the Federal Protective Service should receive law enforcement retirement coverage. Individual officers already have a regulatory path to ask, and to appeal a denial to the MSPB.

Top Stories:

1. A Federal Judge Rules DHS Unlawfully Took Over FEMA's Staffing Decisions and Directed a 50 Percent Cut — Relief for Separated On-Call Employees Is Still to Come

Source: Government Executive, September 14, 2026

TL;DR: On Friday, September 11, Judge Susan Illston of the U.S. District Court for the Northern District of California granted partial summary judgment to AFGE and its co-plaintiffs on their Administrative Procedure Act claims against DHS and FEMA in American Federation of Government Employees v. Trump, No. 3:25-cv-03698-SI. The 32-page order finds that DHS violated the Post-Katrina Emergency Management Reform Act when it revoked FEMA's authority to renew its Cadre of On-Call Response/Recovery (CORE) employees without DHS approval and directed FEMA to submit a fiscal 2026 staffing plan cutting its workforce roughly in half, to 11,383 positions. The court found that FEMA's own program offices and its Chief Human Capital Officer had recommended keeping staffing flat or higher, that the 50 percent figure came from DHS officials, and that the number "appears as if pulled from thin air." It also found that the January 2026 non-renewals of 148 CORE employees were arbitrary and capricious because they turned on expiring appointment dates rather than any assessment of agency need or individual performance, and that the actions violated the funding law that ended last fall's shutdown, which barred reductions in force and "any similar reduction of positions" through at least January 30, 2026. In a companion order, the court sanctioned the government for the deletion of Signal messages among senior DHS and FEMA officials and will presume the lost messages would have been unfavorable to the government. The court did not order reinstatement, back pay, or an injunction; it directed the parties to confer on relief and to file a joint statement on any unresolved issues by October 9, 2026. DHS Secretary Markwayne Mullin told reporters Monday that FEMA can do more with fewer people because of technology upgrades and that courts should not set agency staffing levels.

For federal employees, this means:

• If you are a CORE employee who was separated in January 2026, or whose term was renewed for six months or a year instead of the traditional multi-year appointment, your situation is squarely within the relief the court will decide after October 9. Keep every non-renewal notice, extension letter, and supervisor recommendation you have.

• CORE and reservist positions are Stafford Act appointments outside Title 5, so most of these employees have no MSPB appeal of a non-renewal. That is why the union's APA suit in district court matters here in a way it would not for a permanent competitive-service employee.

• For everyone else, the ruling is a reminder that an agency's own statute can limit what its parent department may do to its workforce. Before assuming a departmental directive controls your agency's staffing, check whether Congress gave your agency its own personnel authority.

Legal Insight

Congress transferred to FEMA "[a]ll functions of the Federal Emergency Management Agency . . . including all of its personnel . . . [and] authorities," 6 U.S.C. § 315(a)(1), and provided that the DHS Secretary "may not substantially or significantly reduce . . . the authorities, responsibilities, or functions of" FEMA, 6 U.S.C. § 316(c)(1). The court held that DHS's control over CORE renewals and the 50 percent staffing directive violated those provisions and were therefore unlawful under 5 U.S.C. § 706(2)(A) and (C), and that the actions independently violated section 120 of the Continuing Appropriations Act, Pub. L. No. 119-37, § 120. The court declined to reach the ultra vires claims and did not decide whether the Post-Katrina Act's separate reorganization limit, 6 U.S.C. § 316(b), was violated. Because the remedy phase will determine whether separated CORE employees receive rescission of their non-renewal notices, reinstatement, or back pay, affected employees should consult their union representative or a federal employment attorney now so that their records are in hand before October 9.

2. OPM Asks Whether FEHB Plans Should Offer More, Fewer, or Different Options — Comments Due November 16, and Nothing Changes for This Fall's Open Season

Source: Federal Register (Office of Personnel Management), September 15, 2026

TL;DR: OPM published a request for information in today's Federal Register, 91 Fed. Reg. 58388 (Sept. 15, 2026), asking how the Federal Employees Health Benefits Program and the Postal Service Health Benefits Program should be structured going forward. Under the current rule, each FEHB plan may offer no more than three options, or two options plus a high-deductible health plan. For plan year 2026 there are 132 plan options from 47 carriers in FEHB and 75 options from 17 carriers in PSHB, covering about 8.3 million people. OPM says it is exploring "ways to manage premium growth" and wants input on whether allowing more, fewer, or different options would lower premiums, whether a wider menu would push enrollees toward lower-premium plans with higher deductibles, whether there should be an upper limit on what a plan may charge before it must be eliminated, and whether changes would affect employees and annuitants differently. This is a request for information, not a proposed rule; OPM says the responses will inform whether it pursues "future notice and comment rulemaking." Comments are due November 16, 2026, one week after Open Season opens.

For federal employees, this means:

• Nothing about your 2027 plan choices changes because of this notice. Open Season runs Monday, November 9, through Monday, December 14, 2026, under the existing three-option structure, and OPM's 2027 premium announcement will come separately.

• If you have views on plan choice — for example, whether you would want more high-deductible options, or whether you worry about losing a plan you rely on — the comment portal at regulations.gov is open until November 16, and what enrollees say now shapes what OPM proposes later.

• Watch the questions OPM is asking. Several point toward high-deductible plans paired with health savings accounts, and toward a premium ceiling that could force a plan off the menu in a future Open Season.

Legal Insight

OPM administers FEHB under chapter 89 of title 5 and may "prescribe regulations necessary to carry out" the program, 5 U.S.C. § 8913(a). The three-option limit is regulatory, not statutory: 5 C.F.R. § 890.201(b)(3)(i) provides that an approved plan shall not "[h]ave either more than three options, or more than two options and a high deductible health plan." Because the limit sits in OPM's own rule, OPM can change it, but only through notice-and-comment rulemaking under 5 U.S.C. § 553, which is why today's document is a request for information rather than a proposal. No action is required of enrollees, and no deadline other than the voluntary comment date applies.

3. Nineteen House Republicans Ask OPM to Review Law Enforcement Retirement Coverage for Federal Police Officers — Here Is How an Individual Officer Can Ask, and Appeal

Source: Federal News Network (Federal Newscast), September 14, 2026

TL;DR: Federal News Network reported Monday that House Republicans have sent a letter to OPM Director Scott Kupor pointing to discrepancies in how some federal police officers are classified for retirement purposes. The letter, led by Rep. Rob Wittman of Virginia and signed by 19 members, was first reported by the Washington Reporter on September 9 and was also addressed to the Secretaries of Homeland Security, War, and Veterans Affairs. It asks OPM to "reconsider the application of 5 CFR Part 842 subpart H as it pertains to all personnel who perform police duties" and requests "a specific review of the Department of War Police Officers, Pentagon Force Protection Agency, Department of Veterans Affairs Police, Department of Homeland Security Federal Protective Service, and all GS-0083 employees." The lawmakers write that these officers carry firearms, wear protective equipment, and have arrest authority but "are not considered 'law enforcement officers' for federal retirement purposes," and they cite a Navy police officer job announcement stating the position "does not meet the definition of law enforcement officer (LEO) and is excluded from coverage as LEO." The letter asks OPM to act under its existing authority; it does not propose legislation, and OPM has not publicly responded.

For federal employees, this means:

• If you are a GS-0083 police officer or in a similar position, nothing changes today. A letter from members of Congress is a request, not a rule, and OPM has issued no new guidance.

• You do not have to wait for OPM. The regulations let an individual employee ask the employing agency, in writing, for a determination that the position qualifies for law enforcement retirement coverage, and a final denial can be appealed to the MSPB.

• Timing matters. If you do not make that written request within six months of entering the position or of a significant change in its duties, the agency's determination that your service was not covered is presumed correct, and you must rebut that presumption by a preponderance of the evidence.

Legal Insight

For FERS purposes, a "law enforcement officer" is an employee whose duties "are primarily . . . the investigation, apprehension, or detention of individuals suspected or convicted of offenses against the criminal laws of the United States," or the protection of federal officials, and "are sufficiently rigorous that employment opportunities should be limited to young and physically vigorous individuals," 5 U.S.C. § 8401(17)(A). Covered officers may retire at 50 with 20 years of covered service or at any age with 25, 5 U.S.C. § 8412(d), face mandatory separation at 57, 5 U.S.C. § 8425(b), and pay higher retirement contributions. Under OPM's regulations, an agency head decides whether a position is covered, 5 C.F.R. § 842.803; the OPM Director retains authority to overrule most such determinations, 5 C.F.R. § 842.808(a); and the six-month written-request rule and its presumption appear at 5 C.F.R. § 842.804(c). An agency head's final decision denying an individual's request for coverage "may be appealed to the Merit Systems Protection Board," 5 C.F.R. § 842.807(a). Because the six-month clock and the MSPB appeal window are both short, an officer who believes the position is misclassified should consult a federal employment attorney before filing.

Mindful Moment of the Day

Facing the Metrics Without Freezing

Seeing your case counts, backlog numbers, or dashboard charts can make your brain shout, “I’ll never catch up.” Notice that first wave of panic and give yourself three deep breaths before you touch the keyboard. Then pick one tiny thing you can do in the next 15 minutes—close one file, send one update, or plan tomorrow’s top three tasks. Mindfulness here is not ignoring the numbers; it’s shrinking them down to the size of the next doable action. 

In Case You Missed It

A few quick hits from our recent posts:

Federal Judge Stays OPM's "Favorite Executive Order" Question on Federal Job Applications

Judge Rules DHS Plan to Cut FEMA in Half Was Unlawful: What FEMA CORE Employees Need to Know

USDA Relocation Pause: What the Government Cut From the Proposed Stay Order and Why It Matters

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• Reasonable accommodation disputes

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In your free, confidential consultation, we’ll walk through what’s been happening, key dates (including the short EEO deadlines), and the tools available to you—formal and informal.

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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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