Attorneys for Federal Employees — Nationwide

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Today at a Glance

• NDA Rule: OPM published a draft government-wide nondisclosure agreement for inspection on Tuesday and scheduled Federal Register publication today, opening a 30-day public comment period; the draft broadly defines "confidential government information" and ties refusal-to-sign to OPM's separate proposed expansion of suitability-determination authority.

• VA Union Contracts: A unanimous First Circuit panel of Biden, Obama, and Trump appointees upheld the preliminary injunction reinstating AFGE's master agreement for more than 320,000 VA employees, while staying a separate district-court order that required case-by-case compliance with the contract's grievance and arbitration provisions.

• HHS Conversions and RIFs: HHS began converting hundreds of GS-15 positions to Schedule Policy/Career on Friday, May 15, and simultaneously issued a new round of RIF notices across the department — with NIH employees reporting that the new RIFs appear to target staff who had expressed interest in last year's retirement incentives.

Top Stories:

1. OPM Proposes Government-Wide Nondisclosure Agreement — 30-Day Comment Period Opens Today

Source: Government Executive, May 26, 2026

TL;DR: The Office of Personnel Management released a draft government-wide nondisclosure agreement on Tuesday and scheduled it for Federal Register publication today, May 27, 2026, opening a 30-day public comment period. The draft NDA would apply to both new and current federal employees and would bar disclosure of information relating to "internal agency operations, personnel matters, procurement processes" and "any sensitive, pre-decisional or deliberative material." In justifying the requirement, OPM cited recent unauthorized disclosures of pre-decisional documents and interagency comments to the press. The draft includes language stating that the NDA does not conflict with the Whistleblower Protection Act and that whistleblowers may continue to disclose information either to Congress or to their agency's inspector general. Federal employment attorneys Kevin Owen and Michael Fallings, quoted by Government Executive, described those whistleblower carve-outs as "lip service" and the overall document language as "over-broad." OPM tied the NDA explicitly to its prior proposed expansion of suitability-determination authority, which Owen warned could create a new path to terminate federal employees and bar them from rehire for up to five years, with limited or no Merit Systems Protection Board review.

For federal employees, this means:

• Read the proposed rule before signing anything. If your agency adopts the NDA template, you may be asked to sign a document that broadly defines "confidential" information, but federal law continues to protect lawful disclosures to the Office of Special Counsel (OSC), an Inspector General (IG), or Congress.

• Track and use the 30-day comment window. Federal Register publication today opens public comment through Regulations.gov; individual employees, unions, and bar associations can submit comments on scope, definitions, and whistleblower-carve-out language.

• Document carefully if you make a protected disclosure. If an agency uses an NDA to discipline you for a disclosure routed through OSC, an IG, or Congress, the Whistleblower Protection Enhancement Act preserves your right to challenge the action through MSPB or an OSC complaint.

Legal Insight:
The Whistleblower Protection Enhancement Act of 2012 amended 5 U.S.C. § 2302(b)(13) to make it a prohibited personnel practice for an agency to implement or enforce a nondisclosure policy or agreement that does not contain a statement preserving employees' rights to disclose protected information to Congress, the Office of Special Counsel, or an Inspector General. A signed NDA does not waive whistleblower rights under 5 U.S.C. § 2302(b)(8), which protects against personnel actions taken in retaliation for disclosures of violations of law, gross mismanagement, gross waste of funds, abuse of authority, or substantial and specific danger to public health or safety. Federal employees who have made — or are considering — a protected disclosure and who are being asked to sign an NDA, or who face an adverse action that may be linked to disclosure activity, should consult a federal employment attorney before signing and before challenging an agency's NDA application.

2. First Circuit Keeps VA-AFGE Master Contract in Force — Narrows District Court's Separate Compliance Enforcement Order

Source: Government Executive, May 21, 2026

TL;DR: A unanimous three-judge panel of the U.S. Court of Appeals for the First Circuit — comprised of Biden, Obama, and Trump appointees — denied the Veterans Affairs Department's emergency motion to stay the District of Rhode Island's preliminary injunction reinstating AFGE's master collective bargaining agreement covering more than 320,000 VA employees. The panel stayed only the district court's separate April 2026 enforcement order, which had required VA to engage in case-by-case compliance with the contract's grievance and arbitration provisions. Writing for the court, Chief Judge David Barron rejected VA's argument that the CBA was rendered "inoperable" by Executive Order 14251, observing that VA itself kept the agreement in place for roughly five months after the March 27, 2025 EO before terminating it on August 6, 2025. The panel concluded that the district court's enforcement order was "greatly expanded" beyond standard labor-injunction remedies and "utterly foreign" to ordinary labor-relations litigation. Separately, Government Executive reports that the Federal Mediation and Conciliation Service has placed AFGE-VA arbitrator requests in abeyance pending the litigation, which may delay neutral resolution of pending grievances.

For federal employees, this means:

• If you are an AFGE-represented VA employee, your master CBA remains in force as a binding agreement for the duration of the appeal — including provisions on bargaining-unit work, official time, and grievance rights.

• File grievances on the CBA's standard timetable. The First Circuit left the foundational reinstatement order in place; preserve your rights by following the contract's internal deadlines, even if arbitration is delayed downstream.

• Expect arbitration backlogs. With FMCS holding new VA arbitrator requests in abeyance, contractual grievances may move slowly to neutral arbitration; document any retaliation or contract-breach evidence as it arises.

Legal Insight:
The District of Rhode Island found that VA's August 2025 termination of the AFGE master CBA likely violated the First Amendment and the Administrative Procedure Act, 5 U.S.C. § 706, given the timing and the union's history of public opposition to administration labor-policy changes. Whether VA and roughly 40 other agencies are validly excluded from Federal Service Labor-Management Relations Statute coverage under 5 U.S.C. § 7103(b)(1) on national-security grounds — the central legal question raised by EO 14251 — remains unresolved on the merits at the First Circuit. Until the merits are decided, VA bargaining-unit employees retain the full set of CBA-based remedies and the statutory unfair-labor-practice framework at 5 U.S.C. § 7116, which agencies and unions may invoke through the Federal Labor Relations Authority.

3. HHS Begins Schedule Policy/Career Conversions and Issues a New Round of RIFs

Source: Government Executive, May 18, 2026

TL;DR: The Department of Health and Human Services on Friday, May 15, began converting an initial tranche of GS-15 positions to Schedule Policy/Career and on the same day issued a new round of RIF notices across HHS components, including NIH. According to a Friday email from HHS leadership, the initial Schedule Policy/Career tranche is "expected to apply to a relatively modest number of GS-15 positions — on the order of hundreds, not thousands — with additional tranches to follow as implementation progresses." On the new RIFs, HHS has not provided a department-wide accounting of scale or targeting criteria; an organization of former and current NIH employees reported in a video that the May RIFs appear to disproportionately affect staff who had expressed interest in last year's retirement incentives and were therefore exempt from the April 2025 layoffs, with one NIH employee noting that some impacted workers were "the only person in their entire department that wasn't RIF'd last April." OPM has projected that approximately 50,000 federal positions governmentwide could ultimately be moved into Schedule Policy/Career.

For federal employees, this means:

• If you receive a Schedule Policy/Career conversion notice, review your appeal posture immediately. Conversion to Schedule Policy/Career strips traditional adverse-action procedural protections and the right to appeal removal to the Merit Systems Protection Board on most grounds.

• If you receive a RIF notice in the current HHS wave, calendar your competitive-area and competitive-level analysis. You have a limited window to scrutinize whether the agency's competitive-area definition, retention register, and notice of specific reasons comply with 5 C.F.R. Part 351.

• Preserve discrimination and retaliation claims. Conversion or RIF actions that appear to target employees based on EEO-protected activity, whistleblower disclosures, or prior interest in retirement-incentive programs may give rise to claims under Title VII, the Rehabilitation Act, the ADEA, or the Whistleblower Protection Act.

Legal Insight:
RIF actions are governed by 5 U.S.C. § 3502 and the implementing regulations at 5 C.F.R. Part 351, which require agencies to determine retention based on tenure, veterans' preference, length of service, and performance — applied within a defined competitive area. Affected employees generally have 30 days from receipt of a specific RIF notice to appeal to MSPB under 5 C.F.R. § 1201.22, and discrimination-based challenges are simultaneously available through the 29 C.F.R. Part 1614 EEO process (with the 45-day contact deadline running from the effective date of the action). Federal employees who receive either a Schedule Policy/Career conversion notice or a RIF notice in the current HHS wave should consult a federal employment attorney before the 30-day MSPB appeal window or the 45-day EEO-contact window closes.

Legal Tip of the Day

If You’re Asked to Provide a Written Statement

Written statements can become part of an official record. What is included—and what is not—can shape how events are viewed. Take time to draft carefully. Stick to facts, avoid speculation, and review for clarity. Keep a copy for your records outside of work systems.

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