Attorneys for Federal Employees — Nationwide
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Today at a Glance
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Federal Discipline Rules: OPM and the Merit Systems Protection Board (MSPB) want to retire the 45-year-old Douglas factors and judge penalties by a looser “reasonableness” standard, and the public comment window closes in early August.
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Federal Hiring Controls: A separate OPM proposal would route the creation of positions and hiring through agency “Strategic Hiring Committees” and rebuild workforce planning around Annual Staffing Plans, with comments due August 3.
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TSP Mid-Year Snapshot: The Thrift Savings Plan's stock funds closed a strong first half — the S fund up 18.41% and the C fund up 10.20% for the year — even after a mixed June.
Top Stories:
1. OPM and the MSPB Move to Replace the Douglas Factors — and the Comment Clock Is Running
Source: Government Executive, July 7, 2026
TL;DR: A joint OPM–MSPB proposed rule, “Promoting Employee Accountability,” published in the July 2 Federal Register (91 FR 40444), would end the Board's use of the 12 Douglas factors when it reviews the penalty in a discipline or removal case. In their place, proposed 5 C.F.R. § 1201.56(b)(3) would ask only whether a penalty falls within the “tolerable limits of reasonableness” in light of the totality of the circumstances. The same rulemaking would set a default 30-day performance improvement period, bar “pre-PIP” counseling steps, direct deciding officials to act on proposed removals within about 30 days, and prohibit settlement agreements that strip a documented poor rating or misconduct finding from an employee's file. OPM says the Douglas factors are not required by statute and that their rigid application has become too “mechanistic”; federal employment practitioners quoted by Government Executive disagree, noting the 12 factors have structured and constrained agency penalty decisions for 45 years. The proposal is unusual because the MSPB — the independent body that hears these appeals — joined OPM in writing it. The public comment period runs 30 days from the July 2 publication and closes in early August.
For federal employees, this means:
- If the rule is finalized, mitigating points that now carry formal weight — long service, a clean record, or discipline out of step with how others were treated — may be harder to press on their own; preserve that evidence now if you are facing an action.
- A 30-day PIP (Performance Improvement Plan) would become the standard, and a settlement may no longer be able to remove a poor rating or misconduct finding from your record.
- Anyone can file a comment before the early-August deadline at regulations.gov, and comments become part of the record if the rule is later challenged in court.
Legal Insight:
Under 5 U.S.C. § 7513, an agency may take an adverse action against a covered employee only “for such cause as will promote the efficiency of the service,” and the Board reviews the action — including the penalty — under 5 U.S.C. § 7701. The 12 Douglas factors come from Douglas v. Veterans Administration, 5 M.S.P.R. 280 (1981), and have guided penalty analysis (and Chapter 43 performance actions under 5 U.S.C. §§ 4302–4303) for decades. Because the proposal would change how penalties are judged and how PIPs and settlements work, an employee facing a proposed removal — or weighing a settlement offer — should consult a federal employment attorney before the standard changes.
2. A Second OPM Proposal Would Route Hiring Through Leadership Committees and Tie Staffing to Restructuring
Source: FEDweek, July 6, 2026
TL;DR: In a separate notice published the same day — “Personnel Management in Agencies: Strategic Human Capital Management” (July 2 Federal Register, doc. 2026-13441) — OPM proposed to rewrite how agencies plan their workforces under 5 C.F.R. Part 250. The rule would replace the Human Capital Operating Plan with an “Annual Staffing Plan,” replace Human Capital Reviews with “Annual Staffing Reviews” conducted jointly with the Office of Management and Budget (OMB), and convert quarterly HRStat reviews into “Quarterly Staffing Plan Performance Reviews.” Each agency would establish a “Strategic Hiring Committee” — typically the deputy secretary, the agency head's chief of staff, the chief human capital officer, and the chief financial officer — to review and approve the creation of positions and hiring actions. Annual Staffing Plans would have to weigh “efficiencies” from organizational restructuring, eliminating management layers, cutting duplicative or non-essential positions, internal reassignments, and redistributing workload. OPM says the framework would give leaders private-sector-style visibility into workforce metrics and mission alignment. The rule would affect more than 80 agencies, and comments are due August 3, 2026.
For federal employees, this means:
- Decisions to create or fill positions at your agency would run through a senior leadership committee, which could slow backfills and shape which jobs are added or cut.
- Because each staffing plan must weigh restructuring and position eliminations, the framework could feed future reorganizations and reductions in force (RIFs).
- The comment period is open through August 3, 2026 at regulations.gov, and employees and unions can submit input.
Legal Insight:
OPM's authority to set governmentwide human-capital rules runs through the Chief Human Capital Officers Act (5 U.S.C. §§ 1401–1402) and its strategic-planning regulations at 5 C.F.R. Part 250, and any final rule must clear notice-and-comment rulemaking under the Administrative Procedure Act (5 U.S.C. § 553). Merit system principles require that selection and advancement rest on relative ability, knowledge, and skills through fair and open competition (5 U.S.C. § 2301(b)(1)), and taking a personnel action that violates a rule implementing a merit principle is a prohibited personnel practice (5 U.S.C. § 2302(b)(12)). Employees and unions concerned about how these committees could affect hiring or restructuring can raise those points during the comment period, and anyone already facing reassignment or a restructuring should consult a federal employment attorney.
3. TSP Stock Funds Close a Strong First Half Despite a Mixed June
Source: Government Executive, July 1, 2026
TL;DR: The Thrift Savings Plan (TSP) posted mixed results in June but finished the first half of 2026 with solid gains in its stock funds. For the year through June, the small- and mid-cap S fund was up 18.41%, the international I fund up 16.53%, and the large-company C fund up 10.20%; the government securities G fund gained 2.18% and the bond F fund 0.74%. In June alone, the S fund rose 4.34%, the C fund fell 0.95%, the I fund was essentially flat at -0.03%, the G fund gained 0.37%, and the F fund gained 0.25%. Over the trailing 12 months, the C fund returned 22.31%, the S fund 29.16%, and the I fund 30.05%. As of the end of May, the TSP held about $1.156 trillion in assets, up from $1.073 trillion at the end of 2025, with the C fund passing $500 billion for the first time. The average FERS account balance was about $234,000 and the average CSRS balance about $257,000, each up roughly $17,000 on the year through that point.
For federal employees, this means:
- Strong first-half stock returns lifted most balances, but June again showed the C and I funds can fall in a single month even during an up year — worth remembering if you are close to retirement.
- The TSP is one leg of the FERS “three-legged stool” (basic annuity, TSP, Social Security); if you have never made an election, your contributions default to the age-appropriate Lifecycle (L) fund, which spreads risk and grows more conservative as you near retirement.
- Past returns do not predict future results; review your contribution allocation and any interfund transfers against your own timeline rather than the latest monthly number.
Legal Insight:
The TSP's investment funds are established under 5 U.S.C. § 8438, which also makes an age-appropriate Lifecycle fund the default investment for participants who do not choose their own allocation. The Federal Retirement Thrift Investment Board and its officials are bound by strict fiduciary duties under 5 U.S.C. § 8477 to act solely in the interest of participants and beneficiaries, so day-to-day fund performance tracks the markets rather than agency discretion.
Legal Tip of the Day
When You’re Reassigned Without a Clear Reason
A reassignment may be presented as routine, but it can still affect duties, career path, commute, telework, supervision, reputation, or accommodation needs. Ask for the reassignment details in writing, including effective date, position description, reporting chain, duty station, and expected duties. Keep a timeline of what happened before the reassignment, especially if it followed EEO activity, whistleblowing, medical leave, or conflict with management. Do not assume that management discretion means there are no legal issues, but do not refuse the reassignment without advice.
In Case You Missed It
A few quick hits from our recent videos and posts:
OPM's Forced Distribution Rule: What It Means for Your Federal Performance Rating
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NTEU Sues Treasury and HHS Over Thousands of Stalled Accommodation Requests
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Douglas Factors Proposal and Federal Discipline
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Federal Court Blocks FLRA From Stripping Career Staff of Union Election Authority
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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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