Attorneys for Federal Employees — Nationwide

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Today at a Glance

• Comey Ruling: A federal judge held Monday that the Justice Department's "Article II" removal of career prosecutor Maurene Comey violated the Civil Service Reform Act and the separation of powers, and ordered retroactive reinstatement, back pay through December 20, 2025, and a corrected SF-50; the department says it will appeal.

• SSA Service Numbers: SSA says fiscal 2026 was the best year in its history; its largest union says employees are "set up to fail with this data" and cannot see the underlying information, three weeks before alternative work schedules end on November 16.

• Use-Or-Lose Deadline: November 28 is the last day to schedule use-or-lose annual leave for the leave year ending January 9, 2027. Leave not scheduled in writing by then generally cannot be restored if work or illness intervenes.

Top Stories:

1. A Federal Judge Rules Maurene Comey's "Article II" Firing Violated the Civil Service Reform Act — the Attorney General May Remove a Prosecutor, but Only for Cause and With Notice, and the Remedy Is Retroactive Reinstatement, Back Pay, and a Corrected SF-50

Source: Government Executive, October 27, 2026

TL;DR: On Monday, U.S. District Judge Jesse M. Furman of the Southern District of New York ruled that the Justice Department's July 16, 2025 removal of Maurene Comey, an Assistant U.S. Attorney for nearly ten years and the daughter of former FBI Director James Comey, violated the Civil Service Reform Act (CSRA) and the constitutional separation of powers. A one-page memo removed her "effective immediately" and "[p]ursuant to Article II of the United States Constitution and the laws of the United States"; her SF-50 listed "ART II CONSTITUTION" as the only legal authority, and she undisputedly got no notice, no reason, and no chance to respond. The government admitted the removal "was not 'for cause' and was not based on her performance." It argued that 28 U.S.C. § 542(b), which makes each assistant U.S. attorney "subject to removal by the Attorney General," means removal at will, and that Article II bars Congress from limiting prosecutors' removal at all. The 55-page opinion rejects both: § 542(b) says who may remove an AUSA, the CSRA says when and how, and the government's own brief acknowledged that the CSRA's "procedural mandates ... were concededly not followed here." The judge wrote that the Supreme Court "has never in its history found unconstitutional a congressionally imposed restriction on the removal of an inferior officer who answers, as AUSAs do, to a principal officer removable by the President at will," and that accepting the government's theory "would be to unsettle the very equilibrium established by this Nation's constitutional system." He granted retroactive reinstatement and back pay from July 16 through December 20, 2025, when Comey took another job, with retirement and Thrift Savings Plan contributions, corrected service dates, and an SF-50 showing a resignation; a Justice Department spokesperson told CBS News the department "disagrees with this decision and will appeal in due course."

For federal employees, this means:

• If you are in the excepted service — attorneys and other positions filled outside competitive examining — and have two years of current continuous service, you are an "employee" under 5 U.S.C. § 7511(a)(1)(C) with Chapter 75 protection. A removal letter that cites the Constitution instead of a charge does not change that.
• The appeal clock does not wait for a court. A Merit Systems Protection Board (MSPB) appeal is due 30 days after the effective date of a removal under 5 C.F.R. § 1201.22(b)(1). Comey reached district court because her case rested on Article II rather than the CSRA; file the Board appeal on time and let counsel weigh any parallel route.
• Keep the removal letter and the SF-50, including the "legal authority" block. The remedy here turned on the paper: back pay, retirement and TSP contributions with interest, corrected service dates, and a corrected SF-50.

Legal Insight

5 U.S.C. § 7513(a) allows an agency to remove a covered employee "only for such cause as will promote the efficiency of the service," and § 7513(b) requires at least 30 days' advance written notice, a reasonable time to answer orally and in writing, representation, and a written decision with the specific reasons. The court held that 28 U.S.C. § 542(b) does not override those requirements for assistant U.S. attorneys, consistent with the Board's own holding in Hamlett v. Department of Justice, 90 M.S.P.R. 674 (2002), and called the argument that an unexplained removal implicitly satisfies the efficiency-of-the-service standard one that "borders on frivolous." Government Executive reports that related Article II cases are pending, including Jackler v. MSPB, with argument scheduled for December. Anyone removed under an "Article II" letter should consult a federal employment attorney immediately; the 30-day Board deadline and the choice of forum are both at stake.

2. SSA Announces the "Best Overall Performance in the Agency's History" and Its Largest Union Says the Numbers Hide a Workforce "Stripped to the Bone" — Alternative Work Schedules End November 16, and the Statute Gives the Union a Right to the Underlying Data

Source: Federal News Network, October 27, 2026

TL;DR: The Social Security Administration announced on October 23 "the best overall performance in the agency's history," reporting an average 800-number answer time of 5.6 minutes in fiscal 2026 compared with 28 minutes in fiscal 2024, field office waits down more than 30 percent, and a 23 percent reduction in the initial disability claims backlog to 911,000. AFGE Council 220, which Federal News Network says represents roughly 35,000 SSA employees, told FNN that "employees are set up to fail with this data" and that "it's hard for us to believe, much less trust, the agency's data when we don't have access to the underlying information." The union says most workers are directed to answer 800-number calls, pulling time from claims processing, and that IT systems are crashing; FNN reports SSA lost more than 7,000 employees in 2025 and reassigned more than 2,000 to the national 800 number, while Commissioner Frank Bisignano has repeatedly said the agency has enough staff. The same workforce moves to a mandatory five-day week on November 16, when SSA ends all alternative work schedules under an October 5 message; AFGE filed a national grievance on October 6 calling the move an "illegal repudiation" of the 2019 national agreement. An SSA spokesperson told FNN the strategy produced "double-digit improvements in every service metric."

For federal employees, this means:

• If you have been detailed to the 800 number, keep the directive, the dates, and a record of the claims work left unprocessed while you were on the phones; a steward needs it for the grievance, and you need it if a later rating reflects work you were taken off of.
• The union's complaint about "underlying information" is not rhetorical. The statute gives an exclusive representative a right to request the agency's data (see the Legal Insight), so route any management claim that does not match your office's numbers to your steward.
• The AWS termination date is November 16; employees on 4/10 or 5/4/9 schedules keep them through November 13 under SSA's own message. The compressed-schedule statute's termination rules, covered here on October 7, remain the grievance's test.

Legal Insight

Under 5 U.S.C. § 7114(b)(4), an agency's duty to bargain in good faith includes furnishing the exclusive representative, on request and to the extent not prohibited by law, data that is "normally maintained by the agency in the regular course of business" and "reasonably available and necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining." A refusal can be an unfair labor practice under 5 U.S.C. § 7116(a)(5) and (8), and the national grievance proceeds under the negotiated procedure that 5 U.S.C. § 7121(a)(1) requires every agreement to contain, ending in binding arbitration. An SSA employee disciplined or downgraded over workload during this transition should speak with a steward first and with a federal employment attorney if the action moves forward.

3. The Deadline to Schedule "Use or Lose" Annual Leave Is November 28 — What the Statute Requires, When Forfeited Leave Can Be Restored, and Why a Separation Date Before January 9 Changes the Math

Source: FEDweek, October 27, 2026

TL;DR: Most federal employees can carry no more than 240 hours of annual leave into the next leave year; hours above that ceiling are forfeited when the leave year ends. The current leave year began January 11, 2026 and ends January 9, 2027, and OPM's leave-year table lists November 28, 2026 as the deadline to schedule "use or lose" annual leave. The date matters because of the restoration rule: leave lost to an urgent work demand or illness can be restored only if it was scheduled in writing before that deadline. FEDweek notes that approvals take time, so employees near their limit should put requests in now. OPM adds that restored leave goes into a separate account and must be used within two years, that using expiring compensatory time or credit hours instead of annual leave is not an exigency, and that some payroll systems run on a different schedule, so confirm dates with your agency.

For federal employees, this means:

• Project your January 9, 2027 balance from your latest Leave and Earnings Statement and subtract your ceiling: 240 hours for most employees, 360 for those stationed overseas, and 720 for SES and senior-level positions; the difference is your use-or-lose.
• Submit the written leave request before November 28 even if you are not sure you can take the days. Leave that was scheduled and later cancelled because of work or illness can be restored; leave that was never scheduled cannot, except for an administrative error.
• If you are retiring or separating, timing matters. The lump-sum payment under 5 U.S.C. § 5551 covers use-or-lose hours not yet forfeited, so a separation on or before January 9, 2027 captures them; once the leave year ends, they are gone.

Legal Insight

5 U.S.C. § 6304(a) sets the 30-day (240-hour) accumulation ceiling, and § 6304(d)(1) requires restoration of leave lost because of administrative error, "exigencies of the public business when the annual leave was scheduled in advance," or "sickness of the employee when the annual leave was scheduled in advance." OPM's rule at 5 C.F.R. § 630.308(a) defines "in advance": before forfeited leave may be considered for restoration, its use "must have been scheduled in writing before the start of the third biweekly pay period prior to the end of the leave year." OPM leaves the exigency and administrative-error determinations to the employing agency, so a denial of restoration is a decision to document and, for bargaining-unit employees, to grieve.

Legal Tip of the Day

Put Your Leave Request in Writing

If you are close to the annual leave ceiling, do not wait to see whether your workload allows you to take time off. Ask your HR office what date your agency uses for scheduling leave that would otherwise be forfeited at the end of the leave year, and submit your request in writing before that date, even if you are not sure the days will hold. Keep a copy of the request and the approval, along with a dated note of any work demand or illness that later forced a change. Leave that was never scheduled may not be restorable, and approvals take time. Do not assume that a verbal okay from a supervisor is enough.  

In Case You Missed It

A few quick hits from our recent posts:

Judge Rejects DOJ's Article II Firing Theory in Maurene Comey Case: What It Means for Federal Employees

IRS Warns Against "Mediocrity" While Capping Top Ratings: What Stack Ranking Research Says

FOIA Records: DOGE Affiliate Said the White House Sent a List of NSF Grants to Cut

Thinking About Federal Disability Retirement?

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We help federal employees:

• Decide whether disability retirement is the right path compared to accommodation or reassignment

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• Prepare and submit disability retirement applications and related documentation

• Coordinate strategy when disability retirement interacts with pending discipline, EEO complaints, or MSPB appeals

For most disability retirement matters, we offer full‑service application assistance for a flat fee of $5,000, plus any required costs. In a free consultation, we’ll talk through your health limitations, job duties, and timelines so you understand your options before you commit.

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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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