Attorneys for Federal Employees — Nationwide
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Today at a Glance
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SHUTDOWN AVERTED, PENDING SIGNATURE: The House voted 370-48 on Tuesday to pass a continuing resolution that funds the government at current levels through December 11. The Senate had already passed it, so the bill now goes to the President, who is expected to sign it.
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YOUR AGENCY RUNS THIS YEAR'S EMPLOYEE SURVEY: OPM is no longer administering the Federal Employee Viewpoint Survey. Each agency must survey its own employees by December 31, and OPM's proposed rule would cut the required questions from 16 to 10.
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VEOA RIGHT TO COMPETE COVERS CURRENT FEDS: In an en banc opinion reissued August 14, the Federal Circuit overruled its 2015 Kerner decision: a veteran already in federal service cannot be denied the right to compete for a merit promotion vacancy that is open to outside applicants.
Top Stories:
1. House Passes Stopgap Funding Through December 11 on a 370-48 Vote — Bill Heads to the President
Source: Government Executive, September 1, 2026
TL;DR: The House on Tuesday passed a continuing resolution (CR) that keeps federal agencies funded at current levels through December 11, by a vote of 370-48 — Republicans 193-19 and Democrats 176-29, according to Roll Call. The Senate had already approved the same measure 90-6 before its summer recess, so the bill now goes to the President; Roll Call reports he is expected to sign it promptly, and as of this briefing it had not yet been signed. Current appropriations expire at midnight on September 30. The bill includes language that temporarily blocks the Office of Management and Budget's proposed rule putting federal grant funding under review by political appointees, and language that prevents the administration from transferring funds from other programs to the Border Patrol. House Speaker Mike Johnson said the CR "simply holds funding steady at current levels through Dec. 11th." The House has passed three of the twelve annual spending bills and the Senate none, so the full-year funding fight moves to November and December.
For federal employees, this means:
- Once the President signs, the October 1 shutdown risk is off the table. A CR generally continues existing funding at current rates, with only the specific exceptions Congress writes in, so agencies stay on this year's footing until full-year bills pass.
- Mark December 11. The CR moves the cliff rather than removing it. Your agency's lapse plan remains the operative document for what happens if Congress misses the next deadline, and last fall's cash-cushion advice still applies.
- The 2027 pay freeze is a separate track. The CR does not touch the President's August 26 alternative pay plan letter freezing base and locality pay for most civilian employees; only a law — for example, a full-year appropriations bill — can change that.
Legal Insight. The Antideficiency Act bars agencies from obligating funds without an appropriation, 31 U.S.C. § 1341(a)(1)(A), and a continuing resolution is that appropriation for a fixed period — which is why a signed CR ends the October 1 lapse risk and an expired one on December 12 would restart it. Agency shutdown plans follow OMB Circular A-11, § 124, and if a lapse ever occurs, the Government Employee Fair Treatment Act guarantees retroactive pay to furloughed and excepted employees, 31 U.S.C. § 1341(c). Employees need to do nothing; for now, only the calendar changes.
2. OPM Is Out of the Survey Business — Your Agency Must Run Its Own Employee Survey by December 31
Source: Federal News Network, September 1, 2026
TL;DR: For more than 20 years OPM ran the Federal Employee Viewpoint Survey (FEVS) for the whole government; it skipped 2025 entirely and is not running it this year. In a July 9 memo to agency heads, OPM Director Scott Kupor said that starting with the 2026 cycle each agency administers its own survey, with "flexibility in determining the approach, timing, and methodology that best meets their needs, provided their survey addresses all required elements" — at minimum the 10 questions in OPM's July 2 proposed rule — and must send results to OPM and OMB within 90 days of finishing. Federal News Network reports that agencies have a few months left before the required end-of-year deadline, that for most it will be their first time distributing the survey themselves, and that workforce experts worry about the timeline and about HR analytics staff lost to deferred resignations and reductions in force. The proposed rule, 91 FR 40435 (July 2, 2026), would cut the required questions from 16 to 10, dropping "My workload is reasonable," "Considering everything, how satisfied are you with your job?" and "I recommend my organization as a good place to work," and adding questions on whether "steps are taken to deal with a poor performer who cannot or will not improve." One question survives unchanged: "I can disclose a suspected violation of any law, rule or regulation without fear of reprisal." The proposal would also provide that "[e]ach agency may determine the specific content of its public disclosure of its annual survey results," replacing the current list of six required data elements; comments closed August 3, and OPM had not published a final rule as of this briefing.
For federal employees, this means:
- Expect a survey from your own agency this fall, not from OPM. OPM's playbook describes a roughly three-month process and says agencies "should not need to procure outside vendors," so expect the format and timing to vary by agency.
- The results are still supposed to be public. Under the current regulation, your agency must post the questions asked, the number of employees surveyed, and the responses to each question within 120 days after the survey closes. Stewards and HR/ER professionals who rely on FEVS trend data should save what is posted this cycle; the proposal would leave the content of future postings to each agency.
- Comparing your agency to others will get harder. Without a common OPM-run instrument and a governmentwide report, cross-agency comparisons — including rankings like Best Places to Work that are built on FEVS data — will depend on what each agency asks and what it chooses to post.
Legal Insight. The survey is a statutory requirement, not an OPM initiative: section 1128 of the National Defense Authorization Act for Fiscal Year 2004, Pub. L. No. 108-136, codified at 5 U.S.C. § 7101 note, requires every agency to survey its employees annually on leadership and management practices and employee satisfaction, and directs OPM to prescribe common questions "in order to allow a comparison across agencies." OPM's current regulation prescribes 16 questions, 5 C.F.R. § 250.302(a)(2), requires data collection by December 31 of each year, and requires public posting of results within 120 days after the survey closes unless the agency head finds posting would jeopardize national security, 5 C.F.R. § 250.303. Until a final rule issues, those remain the operative requirements.
3. Federal Circuit Reissues En Banc Ruling: VEOA Right to Compete Protects Veterans Already in Federal Service
Source: FEDweek, August 25, 2026
TL;DR: On August 14, the U.S. Court of Appeals for the Federal Circuit modified and reissued its decision in Brimer v. Department of the Navy, No. 2024-1388, following a petition for rehearing; the opinion was first issued December 17, 2025, and FEDweek reported the reissued ruling on August 25. The question was whether the Veterans Employment Opportunities Act's "right to compete," 5 U.S.C. § 3304(l)(1) (formerly § 3304(f)(1)), protects veterans and preference eligibles who already work for the federal government — a question the court had answered no in Kerner v. Department of the Interior, 778 F.3d 1336 (Fed. Cir. 2015), a holding the Merit Systems Protection Board adopted in 2022 by overruling its own earlier decisions. The en banc court held that Kerner was wrong to that extent: "Nothing in the language of the statute limits its application to veteran and preference eligible candidates new to the federal government," so "an agency cannot rely on a veteran's or preference eligible's status as a current federal employee to deny him or her the right to compete, a right enforceable before the Board." The court added that the right to compete "does not exempt them from the eligibility criteria, such as time-in-grade restrictions, that are applicable to all candidates," and it left undisturbed Kerner's holding that the preferences in 5 U.S.C. § 3311 do not apply to promotions and other in-service moves. Mr. Brimer, a preference-eligible disabled veteran and GS-13 Navy human resources specialist, had applied for a GS-14 merit promotion open to current permanent employees, VEOA eligibles, and military spouses; the Navy did not refer him because it mistakenly believed he had not documented time-in-grade, then offered the job to someone else two days after he complained to the Labor Department. The Board's decision against him was vacated and the case returned to the Board.
For federal employees, this means:
- If you are a veteran with three or more years of honorable active service, or otherwise preference eligible, and a merit promotion announcement is open to applicants from outside the agency's workforce, you have a statutory right to compete for it. Being a current federal employee is not a lawful reason to screen you out.
- The right is to compete, not to be selected, and not to skip the qualifications. Time-in-grade, specialized experience, and other criteria applied to every candidate still apply to you.
- The clock is short. A VEOA complaint goes to the Department of Labor within 60 days of the violation; the Board comes only after DOL has had 60 days, and then you have 15 days from DOL's closure letter. Keep the announcement, your application, and every notice.
Legal Insight. Section 3304(l)(1) of title 5 provides that preference eligibles and qualifying veterans "may not be denied the opportunity to compete for vacant positions for which the agency making the announcement will accept applications from individuals outside its own workforce under merit promotion procedures," and § 3304(l)(4) requires such announcements to state that they are eligible to apply. Enforcement runs through 5 U.S.C. § 3330a: a written complaint to the Secretary of Labor within 60 days of the alleged violation, § 3330a(a)(2)(A); if DOL cannot resolve it within 60 days, an appeal to the Merit Systems Protection Board no earlier than the 61st day after the complaint and no later than 15 days after DOL's written notice, § 3330a(d)(1), after notifying DOL in writing of the intent to appeal, § 3330a(d)(2). After Brimer, the Board can no longer dismiss such a claim because the veteran already works for the government. If you were screened out on that basis, the 60-day window makes this a matter to raise promptly with a federal employment attorney.
Legal Tip of the Day
When You’re Placed on a PIP
A Performance Improvement Plan can feel like a warning sign, but it is also a moment when careful documentation matters. Read the PIP closely, ask how success will be measured, and request clarification in writing if expectations are vague or unrealistic. Keep a private log of assignments, deadlines, feedback, obstacles, and completed work, and save copies somewhere safe outside government systems. Avoid responding emotionally or assuming verbal reassurance will protect you later; what matters most is the written record created during the PIP period.
In Case You Missed It
A few quick hits from our recent posts:
One Whistleblower, Millions of Mail Ballots: Inside the USPS Report Congress Just Published
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$1.5 Trillion for Defense, $0 for Your Raise: The Math Behind the 2027 Federal Pay Freeze
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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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