Attorneys for Federal Employees — Nationwide
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Today at a Glance
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Performance Ratings: Agencies are applying OPM's 40 percent cap on "Outstanding" and "Exceeds" ratings to the appraisal year that ended September 30, and employees at HHS, DHS, VA, IRS and Labor told Government Executive they were given little information about how calibration panels will decide who gets a 4 or a 5. The rules still require that your rating reflect your actual performance.
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Schedule G Appointees: Federal News Network reports that at least 25 political appointees have served under "Schedule G" since August 2025, 22 of them at the VA, more than a year before OPM proposed the regulation for the category. Comments on that proposed rule are due November 17.
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Defense Hiring: A Pentagon pilot using AI cut the Army's average civilian hiring time from 161 days to 47, and DoD says it paid more than $1 billion in awards to more than 90,000 employees in the past year. Direct hiring is now "the expectation," which changes how veterans' preference works for applicants.
Top Stories:
1. The 40 Percent Ratings Cap Is Here — Employees Say They Are "in the Dark" About How Calibration Panels Will Hand Out the 4s and 5s, and What the Rules Still Require
Source: Government Executive, October 20, 2026
TL;DR: Agencies are closing out the fiscal year 2026 appraisal cycle under a governmentwide ceiling: no more than 40 percent of career General Schedule, SES and senior professional employees may receive a Level 5 "Outstanding" or Level 4 "Exceeds Fully Successful" rating, under a September 21 OPM memorandum that calls the cap "a ceiling, not a target." Government Executive reports that employees and managers at HHS, FEMA, CBP, VA, IRS and Labor's Mine Safety and Health Administration say they received little information on how the senior-executive calibration panels that now review proposed ratings will decide, that some were told a 3 is the default, and that one MSHA supervisor said leadership identified which ratings "need to be lowered" before panel review. Internal HHS documents direct rating officials to rank every employee they supervise, bar discussing preliminary ratings with employees before senior leadership approves them, and allow reconsideration requests within five business days of a final rating. OPM says the cap "best balances meaningful, standards-based ratings with recognizing outstanding performance." Agencies may seek a waiver of up to 10 points by October 30.
For federal employees, this means:
- Your rating still has to be earned, not assigned. A rating of record must be "based only on the evaluation of actual job performance," and an agency may not issue one that "assumes a level of performance" without an actual evaluation (5 C.F.R. § 430.208(a)(1)–(2)). The cap limits how many top ratings exist; it does not permit marking you down for reasons unrelated to your work.
- Watch the clock. A rating of record may be changed within 60 days of issuance on the employee's informal request under agency procedures (5 C.F.R. § 430.208(i)(1)), and HHS has set a five-business-day reconsideration window. Ask in writing for the rationale and the calibration factors applied.
- The stakes are bigger than the bonus. OPM's RIF rule, effective September 2, ranks performance ratings ahead of length of service in deciding who is retained (Reduction in Force, 91 Fed. Reg. 49178 (Aug. 3, 2026)), and the memo requires a performance improvement plan for anyone rated below Fully Successful.
Legal Insight
Chapter 43 requires appraisal systems to set standards that permit "the accurate evaluation of job performance on the basis of objective criteria," to communicate those standards and critical elements at the start of the appraisal period, and to evaluate each employee "on such standards" (5 U.S.C. § 4302(c)(1)–(3)); employees scored on criteria they were never given should document that now. OPM's July 7 rule (91 Fed. Reg. 41521) authorizes the standardized distribution (5 C.F.R. § 430.208(c)) and bars challenges to a rating through the negotiated grievance procedure (§ 430.208(k)), though OPM's memo says a bargaining agreement that bars forced distributions stays operative until its term ends. A rating lowered because of protected activity remains actionable: a performance evaluation is a "personnel action" under 5 U.S.C. § 2302(a)(2)(A)(viii), so the OSC whistleblower channel, the EEO process (29 C.F.R. § 1614.105(a)(1), 45 days from the rating) and the agency grievance system stay open, and a rating raised through such a proceeding does not count against the cap. If you believe your rating was lowered for reasons other than your performance, consult a federal employment attorney before the 45-day clock runs.
2. Schedule G Appointees Have Been on the Payroll Since August 2025 — 22 of the 25 Known So Far Are at the VA, OPM Says the Executive Order Itself Is the Authority, and Comments on the Proposed Rule Are Due November 17
Source: Federal News Network, October 20, 2026
TL;DR: Federal News Network reports that agencies began hiring political appointees under "Schedule G" in August 2025, more than a year before OPM proposed the regulation that would write the category into 5 C.F.R. part 213. The Partnership for Public Service's October 13 analysis counts at least 25 Schedule G appointments: 22 at the VA, two at Education and one at Labor. Chris Piper of the Partnership said there is "a high likelihood" that many more exist than are visible, and that, unlike Schedule C, the category carries no monthly reporting requirement, no restriction on details to the White House and no formal OPM sign-off. OPM spokesperson Kiki Nyoh responded that "the claim that there were no formal guardrails governing use is not accurate," that the schedule "took effect under the executive order, which itself modified the regulations," and that the pending proposed rule "does not establish the underlying authority for Schedule G." Political leadership is at a 40-year high while the career Senior Executive Service has shrunk 30 percent, and the appointments surfaced through an October update to the online Plum Book.
For federal employees, this means:
- Schedule G is an at-will category. The July 2025 order amended Civil Service Rule VI so that, except as required by statute, the civil service rules do not apply to Schedule G removals, and 5 U.S.C. § 7511(b)(2)(A) keeps policy-making positions outside the chapter 75 adverse-action protections. A career employee who accepts a Schedule G appointment should assume no appeal rights come with it.
- Appointees are supposed to be visible. The PLUM Act of 2022 (5 U.S.C. § 3330f) requires OPM to maintain a public website listing political appointees; that directory is where these appointments surfaced.
- The comment window is still open. OPM's proposed rule, "Employment in the Excepted Service," 91 Fed. Reg. 59076 (Sept. 18, 2026), would add a proposed § 213.3701 for Schedule G; comments are due November 17, 2026.
Legal Insight
Executive Order 14317, "Creating Schedule G in the Excepted Service," 90 Fed. Reg. 34753 (July 23, 2025), rests on 5 U.S.C. §§ 3301 and 3302, which let the President except positions from the competitive service, and OPM's position is that the order, not the pending rule, is the operative authority. Career employees' protections do not depend on how an appointee is classified: 5 U.S.C. § 2302(b)(1)(E) prohibits discrimination based on political affiliation, and a career employee pressured to move into a Schedule G slot, or passed over in favor of one, can go to the Office of Special Counsel. Before accepting a move from a competitive-service position into Schedule G, consult a federal employment attorney about the rights you would give up.
3. A Pentagon Pilot Cut Army Civilian Hiring From 161 Days to 47 — DoD Calls Direct Hiring "the Expectation," Paid $1 Billion in Awards to 90,000 Employees, and Lets Commanders Offer 25 Percent Incentives
Source: Federal News Network, October 20, 2026
TL;DR: Michael Cogar, who oversees DoD's civilian personnel policies, told the Association of the U.S. Army's annual conference on October 14 that a pilot run by the Army's Civilian Human Resources Agency, the Military Entrance Processing Command and the Defense Logistics Agency cut average civilian hiring time from 161 days to 47 by using AI tools to draft announcements, screen resumes and build candidate slates. Cogar said the department has rewritten 11 direct-hire authority policies, delegated those decisions to service secretaries and agency directors, treats direct hiring as "the expectation," not the exception, and requires that military spouses be considered for open positions. He said DoD paid cash awards averaging over $13,000 to more than 90,000 employees in the past year, more than $1 billion in all, and that certain civilian leaders and colonels may now offer up to 25 percent of base pay as a recruitment, relocation or retention incentive without higher-headquarters approval. He did not say how many people the pilot hired.
For federal employees, this means:
- If you are a veteran applying to DoD, know what direct hire changes. Direct-hire authority under 5 U.S.C. § 3304(a)(3) lets an agency fill a position "without regard to" the rating, ranking and veterans' preference provisions of 5 U.S.C. §§ 3309–3318 where OPM has found a severe shortage of candidates or a critical hiring need. Preference still governs competitive examining announcements, but not selection under a direct-hire announcement, so read each announcement's hiring path before you apply.
- Incentives come with strings. A retention bonus under 5 U.S.C. § 5754 generally may not exceed 25 percent of basic pay (50 percent with OPM approval for a critical agency need) and ordinarily requires a written service agreement; recruitment and relocation bonuses under § 5753 carry the same per-year ceiling and agreement requirement. Get the service period and repayment terms in writing.
- Awards follow the ratings story above. OPM's September 21 guidance caps GS performance awards at $25,000, sets minimums of 7 percent of basic pay for a Level 5 and 4 percent for a Level 4, and directs agencies to reserve at least 60 percent of bonus pools for Level 4 and 5 performers.
Legal Insight
Direct-hire authority is bounded by statute and regulation: 5 U.S.C. § 3304(a)(3) and 5 C.F.R. part 337, subpart B, allow it only where public notice of the vacancy has been given and OPM has made the shortage or critical-need finding. Neither suspends the merit system principles in 5 U.S.C. § 2301 or the prohibited personnel practices in § 2302, so a selection driven by a prohibited factor remains challengeable through OSC or the EEO process. Performance-based cash awards are governed by 5 U.S.C. § 4505a and 5 C.F.R. part 451: such an award requires a most recent rating of record at Fully Successful or higher and may not exceed 10 percent of basic pay, or 20 percent on an agency-head finding of exceptional performance.
Legal Tip of the Day
When Your Rating Comes Back Lower Than Expected
When a final rating comes back lower than what you were led to expect, slow down before you react. Ask in writing how the rating was determined and what factors were applied. Keep a copy of your performance standards, your accomplishments, and any earlier ratings or feedback, along with your own dated timeline, outside government systems so you still have them if your access changes. Note every deadline in the rating notice, and remember that different forums run different deadlines, some of them short. Do not assume that asking questions informally, or waiting for an answer, pauses a clock that may already be running. If you think the rating was tied to something other than your work, ask a federal employment attorney before you reply.
In Case You Missed It
A few quick hits from our recent posts:
OPM Repeals the One-Year Time-in-Grade Wait: Merit or Favoritism?
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What an "Indicative Ruling" Means for the VA Union Contract Fight
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GAO Report Warns NOAA Satellite Cuts Could Leave a Weather Data Gap
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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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