Attorneys for Federal Employees — Nationwide
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Today at a Glance
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MSPB Appeal Rights: The Board has ruled that a federal employee cannot have discrimination claims decided inside an enforcement (compliance) case; those claims now must go through a separate EEO process.
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First Responder Retirement: OPM proposed rules to let injured law enforcement officers, firefighters, and other special-category employees keep their enhanced retirement even after moving to a different federal job.
Top Stories:
1. The MSPB Narrows Where You Can Raise Discrimination — a Compliance Case Is No Longer a "Mixed" Case
Source: Merit Systems Protection Board (Montalvo v. Department of the Navy, 2026 MSPB 6), July 10, 2026
TL;DR: In a precedential decision, the Merit Systems Protection Board (MSPB — the agency that hears most federal firing and discipline appeals) held that it cannot decide discrimination claims in a petition for enforcement, also called a compliance case. The appellant, a Navy employee, had won reversal of her removal and an order for back pay; when she said the agency dragged its feet on paying, she argued that the delay was disability discrimination and retaliation. An administrative judge considered those claims under Jimenez v. U.S. Postal Service, 58 M.S.P.R. 520 (1993), but the Board overruled that line of cases. It held that a compliance case can never be a "mixed" case — one combining an action appealable to the Board with a discrimination claim — because an agency's failure to comply with a Board order is not itself an action "appealable" to the Board. The Board will still ask whether retaliation kept the employee from being restored to the status quo ante, but it will not decide whether the conduct amounts to actionable discrimination. Employees who want those claims adjudicated must pursue them separately through the EEO process. The Board found the Navy had, in the end, paid the back pay and dismissed the enforcement petition.
For federal employees, this means:
- If you win at the MSPB and the agency stalls on reinstatement or back pay, file a petition for enforcement to compel compliance — but do not expect the Board to rule on discrimination or retaliation as standalone claims in that proceeding.
- To preserve a discrimination or retaliation claim tied to how the agency treats you after a win, start a separate EEO complaint and watch the 45-day clock to contact an EEO counselor.
- Keep detailed records of every delay, communication, and payment during the compliance period; that evidence still matters to whether you were returned to the status quo ante.
Legal Insight:
The MSPB enforces its own orders under 5 U.S.C. § 1204(a)(2), and it hears "mixed" cases combining an appealable action with a discrimination claim under 5 U.S.C. § 7702(a)(1); Montalvo holds those two tracks do not overlap, so discrimination is not adjudicated in an enforcement proceeding (see Oja v. Department of the Army, 405 F.3d 1349 (Fed. Cir. 2005); King v. Reid, 59 F.3d 1215 (Fed. Cir. 1995)). The practical effect is a forum trap: the same facts may require both a compliance petition at the Board and a timely EEO complaint under 29 C.F.R. Part 1614 to keep every remedy alive. Because missing the 45-day counselor deadline (29 C.F.R. § 1614.105(a)(1)) can extinguish the discrimination claim, an employee facing post-decision agency foot-dragging should consult a federal employment attorney promptly.
2. OPM Moves to Protect Enhanced Retirement for Injured First Responders
Source: Government Executive, July 21, 2026
TL;DR: The Office of Personnel Management (OPM) issued a proposed rule, published in the Federal Register on July 22, 2026, to carry out the First Responder Fair RETIRE Act, a 2022 law (Pub. L. No. 117-225). Law enforcement officers, firefighters, Customs and Border Protection officers, air traffic controllers, nuclear materials couriers, and Capitol and Supreme Court Police pay a higher share of salary toward retirement in exchange for an enhanced annuity, the ability to retire as early as age 50 with 20 years of covered service, and mandatory retirement at 57. Under prior practice, a first responder injured on the job who had to move to a different federal position often lost that enhanced coverage — forfeiting the value of the extra contributions already paid, the earlier eligibility, and the richer benefit formula. The proposed rule would let a qualifying employee keep the enhanced retirement timeline after returning to non-covered work, and would allow a refund of the extra contributions for those who leave government before reaching retirement age. To qualify, the employing agency must certify that the injury was the direct result of performing covered duties, that the employee is permanently unable to serve in the original covered position, and that the employee is not yet eligible for voluntary or mandatory retirement. Comments are due September 21, 2026.
For federal employees, this means:
- If you serve in a covered law enforcement, firefighter, or other special-category position and were reassigned after a duty-related injury, review the proposed rule — it could restore enhanced retirement credit you may have thought was lost.
- Gather your documentation now: proof the injury was duty-related, medical records showing you can no longer perform the covered role, and your service history in covered positions.
- The rule is not yet final; you can submit comments through Regulations.gov by September 21, 2026, and should confirm your agency's certification process once the rule takes effect.
Legal Insight:
Enhanced "special category" retirement flows from provisions like 5 U.S.C. § 8412(d) (FERS) and 5 U.S.C. § 8336(c) (CSRS), with mandatory separation generally at age 57 under 5 U.S.C. § 8425. The proposed rule (RIN 3206-AO54; Federal Register doc. 2026-14751) implements Pub. L. No. 117-225 by preserving that coverage when a work-related injury forces a move to a non-covered job — a benefit that turns on precise agency certification, so affected employees should keep careful records of the injury and their covered service.
Legal Tip of the Day
Before You Submit a Written Statement
A written statement can become part of an investigation, disciplinary file, EEO record, or security review. Before writing, ask what the statement is for, whether it is required or voluntary, who will receive it, and when it is due. Stick to facts you personally know, separate direct observations from assumptions, and state clearly when you do not know or do not remember. Keep a copy for your records outside of work systems. Do not speculate, exaggerate, guess, or include emotional commentary that may distract from the facts.
In Case You Missed It
A few quick hits from our recent videos and posts:
IRS Ordered to Restore Telework After Walking Out of Its Own Arbitration
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OPM Cut a Third of Its Own Workforce — Here's What That Means for Your Benefits
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Why Your FERS Pension Depends on Social Security's Finances
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Thinking About Federal Disability Retirement?
If your medical conditions make it hard to safely or consistently perform your federal job—even with accommodations—it may be time to explore OPM/FERS disability retirement.
We help federal employees:
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Decide whether disability retirement is the right path compared to accommodation or reassignment
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Gather and frame medical evidence so it speaks the language OPM expects
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Prepare and submit disability retirement applications and related documentation
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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.
👉 Schedule Your Free Consultation Today
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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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