The Supreme Court appears poised to deliver a contradictory message to the American people: Some independent agencies deserve protection from presidential whim, while others do not. The logic is troubling, the implications profound and the damage to our civil service system could be irreparable.

In December, during oral arguments in Trump v. Slaughter, the court’s conservative majority signaled it would likely overturn or severely weaken Humphrey’s Executor v. United States, the 90-year-old precedent protecting independent agencies like the Federal Trade Commission from at-will presidential removal. Chief Justice John Roberts dismissed Humphrey’s Executor as “just a dried husk,” suggesting the FTC’s powers justify unlimited presidential control. Yet just weeks later, during arguments in Trump v. Cook, those same justices expressed grave concerns about protecting the “independence” of the Federal Reserve, calling it “a uniquely structured, quasi-private entity” deserving special constitutional consideration.

The message is clear: Wall Street’s interests warrant protection, but the rights of federal workers do not.

The MSPB: Guardian of civil service protections

This double standard becomes even more glaring when we consider Harris v. Bessent, where the D.C. Circuit Court of Appeals ruled in December 2025 that President Donald Trump could lawfully remove Merit Systems Protection Board Chairwoman Cathy Harris without cause. The MSPB is not some obscure bureaucratic backwater — it is the cornerstone of our merit-based civil service system, the institution that stands between federal workers and a return to the spoils system that once plagued American government with cronyism, inefficiency and partisan pay-to-play services.

The MSPB hears appeals from federal employees facing adverse actions including terminations, demotions and suspensions. It adjudicates claims of whistleblower retaliation, prohibited personnel practices and discrimination. In my and Harris’ tenure alone, the MSPB resolved thousands of cases protecting federal workers from arbitrary and unlawful treatment. In fact, we eliminated the nearly 4,000 backlogged appeals from the prior Trump administration due to a five-year lack of quorum. These are not abstract policy debates — these are cases about whether career professionals can be fired for refusing to break the law, for reporting waste and fraud or simply for holding the “wrong” political views.

The MSPB’s quasi-judicial function is precisely what Humphrey’s Executor was designed to protect. This is what Congress intended to follow in 1978 when it created the MSPB in order to strengthen the civil service workforce from the government weaponization under the Nixon administration. The 1935 Supreme Court recognized that certain agencies must be insulated from political pressure to function properly — agencies that adjudicate disputes, that apply law to fact, that require expertise and impartiality rather than ideological alignment with whoever currently occupies the White House. Why would today’s Supreme Court throw out that noble and constitutionally oriented mandate?

A specious distinction

The Supreme Court’s apparent willingness to treat the Federal Reserve as “special” while abandoning agencies like the MSPB rests on a distinction without a meaningful constitutional difference. Yes, the Federal Reserve sets monetary policy with profound economic consequences. But the MSPB’s work is no less vital to the functioning of our democracy.

Consider what happens when the MSPB loses its independence. Federal employees adjudicating veterans’ benefits claims, processing Social Security applications, inspecting food safety or enforcing environmental protections suddenly serve at the pleasure of the president. Career experts can be replaced by political loyalists. Decisions that should be based on law and evidence become subject to political calculation. The entire civil service — the apparatus that delivers services to millions of Americans — becomes a partisan weapon to be wielded by whichever party controls the White House.

This is not hypothetical. We have seen this movie before. The spoils system of the 19th century produced rampant corruption, incompetence and the wholesale replacement of experienced government workers after each election. The Pendleton Act of 1883 and subsequent civil service reforms were not partisan projects — they were recognition that effective governance requires a professional, merit-based workforce insulated from political pressure.

The real stakes

The Supreme Court’s willingness to carve out special protection for the Federal Reserve while abandoning the MSPB reveals a troubling hierarchy of values. Financial markets deserve stability and independence, but should the American public tolerate receiving partisan-based government services and protections?

Protecting the civil service is not some narrow special interest. It affects every American who depends on government services. It determines whether the Occupational Safety and Health Administration (OSHA) inspectors can enforce workplace safety rules without fear of being fired for citing politically connected companies. Whether Environmental Protection Agency scientists can publish findings inconvenient to the administration. Whether veterans’ benefits claims are decided on merit rather than political favor. Whether independent and oversight federal organizations can investigate law enforcement shootings in Minnesota without political interference.

Justice Brett Kavanaugh, during the Cook arguments, warned that allowing presidents to easily fire Federal Reserve governors based on “trivial or inconsequential or old allegations difficult to disprove” would “weaken if not shatter” the Fed’s independence. He’s right. But that logic applies with equal force to the MSPB. If presidents can fire MSPB members at will, they can install loyalists who will rubber-stamp politically motivated personnel actions, creating a chilling effect throughout the civil service.

What’s next

The Supreme Court has an opportunity to apply its principles consistently. If the Federal Reserve deserves independence to insulate monetary policy from short-term political pressure, then the MSPB deserves independence to insulate personnel decisions from political retaliation. If “for cause” removal protections serve an important constitutional function for financial regulators, they serve an equally important function for the guardians of civil service protections.

The court should reject the false distinction between agencies that protect Wall Street and agencies that protect workers. Both serve vital public functions. Both require independence to function properly. Both should be subject to the same constitutional analysis.

More fundamentally, the court must recognize that its removal cases are not merely abstract exercises in constitutional theory. They determine whether we will have a professional civil service or return to a patronage system. Whether government will be staffed by experts or political operatives. Whether the rule of law or the whim of the president will govern federal employment decisions.

A strong civil service is just as important to American democracy as an independent Federal Reserve. Both protect against the concentration of power. Both ensure that critical governmental functions are performed with expertise and integrity rather than political calculation. The Supreme Court’s jurisprudence should reflect that basic truth, not create an arbitrary hierarchy that privileges financial interests over the rights of workers and the integrity of government.

The court will issue its decisions over the next several months and when it does, it should remember that protecting democratic institutions is not a selective enterprise. The rule of law requires principles, not preferences. Because in the end, a government run on political loyalty instead of merit is far more dangerous than a fluctuating interest rate.

Raymond Limon retired after more than 30 years of federal service in 2025. He served in leadership roles at the Office of Personnel Management and the State Department and was the vice chairman of the Merit Systems Protections Board. He is now founder of Merit Services Advocates.

The post The Supreme Court’s dangerous double standard on independent agencies first appeared on Federal News Network.

Interview transcript

Terry Gerton We’re going to talk about this case, Siemens Government Technologies. But before we dive into the case and the court’s decision, walk us through the basic premise here, which is about energy savings performance contracts. How do they work?

Zach Prince Sure, so the government, you know, it has a lot of facilities around the country and around the world. Many of those facilities are a little dated, let’s put it nicely, where they waste huge amounts of energy just because the infrastructure is built decades and decades and decades ago. So as part of a way to try to modernize and save energy, they’ve developed two different mechanisms that are the real workhorses of modernizing in this regard. There are what we’re dealing with here, which are energy savings performance contracts, and then their utility energy savings contracts, or UESCs. This is more of the former, not the latter, but those are really the two mechanisms. So the way that these work is there’s an IDIQ that will be held by a number of energy savings companies. Here Siemens is one of them. The interested agency will go out and ask for quotes to put together a preliminary audit, or a preliminary assessment rather, which is really a high level review of the federal facility and suggestion of ways that the government can save money and the cost of doing it. This always has to be not just cost neutral, but has to have an actual savings to the government. And that savings is passed on then to the contractor. The preliminary assessment is itself an expensive process, but it’s not nearly as expensive as the next part of this, which is if the government is interested in the preliminary assessment, they’ll ask for an investment grade audit or IGA, which is part of the task order award for the work itself. That can be millions of dollars. I mean, it takes tons of engineering time and real work from the contractor. And work that sometimes doesn’t always get compensated if there’s no ultimate award.

Terry Gerton So it sounds like there are a lot of ways that these projects could get derailed. What specifically went wrong in the Siemens case?

Zach Prince Well, it’s hard to tell reading just from the court’s decision, but it appeared that DLA, which was administering this large project at the Goodfellow Air Force Base in San Angelo, Texas, changed some requirements after that they had already received the first round of the investment grade audit from Siemens. They seemingly changed a ton of the assumptions that were used by Siemens to calculate the actual cost savings. And, as Siemens put it, required a full scale investment grade audit to be conducted again with a number of iterations that ended up costing somewhere north of $2 million.

Terry Gerton That change in assumptions is interesting, because as I read the case, it was almost two years from the initial request to Siemens’ submission of their audit. And so many things could have changed. Does that make these kinds of projects a risky proposition?

Zach Prince They make them complicated. And the agency really needs to be focused on getting these projects done, getting the investment grade audit to be based on facts, not things that could rapidly change, which is I think what happened here, so that they understand what they’re getting or what they might be getting and can execute the project.

Terry Gerton So Siemens brought the case in the Court of Federal Claims. What was their argument?

Zach Prince So as sort of the background to this, the IGA often is not compensated when there’s not a task order and companies know that this is a risk that they’re taking. The preliminary assessment is almost never compensated unless there’s a task order. So they know it’s a risk, but this is an unusual case because of how many iterations they went through with DLA just to then have the project totally canceled with nothing. So, they brought some pretty interesting challenges here. They frame this as a bid protest, primarily, as well as a breach of contract. So there was a contract, this IDIQ, with a task order for the preliminary assessment. That’s where they brought a contract claim under. They said the government breached its obligations to administer a task order for the work itself under that IDIQ, so that’s a contract dispute. They also said this was an improper administration of a task order award process where the government breached implied obligations to proceed in good faith and breached a variety of other statutes that really weren’t discussed in the case. But they framed it as both contract disputes and a bid protest.

Terry Gerton Speaking with Zach Prince, he’s a partner at Haynes Boone. How did the government respond to those allegations?

Zach Prince Well, the government just asked for the whole thing to be dismissed, which it often does. The bid protest issues are the ones that they really focused on and I thought were of particular interest for this case because it was really a novel approach to try to get compensation by Siemens. The government argued that there can’t be a bid protest here under the court’s bid protest jurisdiction because of what’s known as the FASA task order bar. It is, there is some limit to the jurisdiction of the Court of Federal Claims to hear disputes, bid protest disputes involving task orders. They either have no jurisdiction anywhere to have such bid protests or they have to go to GAO. But that limit has been hotly disputed and the subject of several Federal Circuit decisions and the government lost that claim here.

Terry Gerton And what else did the court have to say about Siemen’s creativity?

Zach Prince The court was more focused on the government’s attempt to trap Siemens by saying that either, if there’s a contract, an express contract, then they can’t bring an implied in fact contract, which is one of their arguments they had brought as a bid protest, essentially. But also the government said there is no express contract that gives rise to relief. So as the court put it, it’s heads, I win, tails you lose-type argument the government’s trying to make and it wasn’t going to pass muster here at least. The government might ultimately prevail, but this is a very preliminary stage and the court was not willing to dismiss here.

Terry Gerton So as you look at this case, what lessons do you draw for agencies and contractors around these kinds of projects?

Zach Prince Yeah, it’s really tricky and I’ve dealt with several of these contracts before. The contracting agencies often just don’t have money to fund the preliminary assessment and maybe don’t money to fund the investment grade audit either, hoping, everybody’s hoping together, that it will ultimately turn into a task order for the work. And these task orders might be massive, $50, $100+ million. We’re talking about multi-year projects for modernizing large, large facilities. But you can’t just proceed on hope. It always makes me as outside counsel nervous, but you as a government contractor or as a government agency, you have to have a good relationship with your contracted counterparts. And those relationships can really carry the day to get folks compensated when they otherwise might not have. You find money at the end of a fiscal year and you come up with some mods and make the contractor whole because you know you have to do business with them again. And you appreciate the fairness of it. On the contractor side, you have to recognize that there is risk here. And if you’re not gonna get an actual written commitment from the government, and not just the government of course, the authorized person from the government, to fund one of these projects, you might be left holding the bag. So they can be lucrative projects for sure, but there is risks. And, as always, the government has to proceed in good faith, which is Siemens’ primary argument here is, the government just kept shifting around requirements, ignoring the fact that it was going to cost millions to do that, and then tried to leave Siemens with nothing. But you have to proceed with these projects with eyes wide open.

Terry Gerton You mentioned risk there, especially for the bidders, but it seems like there’s risk for all the parties and it’s not always clear that the potential revenue down the line will offset some of that risk. Is there a better way to structure these kinds of projects that would help everybody in the long run?

Zach Prince That’s a great question. And I’m not just stalling because it’s really complicated and I don’t know the right answer. This is a really interesting mechanism to fund these types of projects. And the government likes it because they’re not really left paying for anything. If they save money and those savings pay the contractor ultimately, and even in the utility version of these types contracts where it’s structured a bit differently, it’s still not coming out of present appropriations generally. It is a savings that the government’s getting ultimately on its energy bills, and that’s being passed on to pay for the project. That’s a great way to do business. If the government doesn’t have to actually pay for anything, they’re not subject to ongoing appropriation problems, and they still can get what they need, that’s fantastic. The problem is just at the outset of these projects, there are all sorts of complications that really need to be considered carefully by all parties.

The post An interesting case at the Court of Federal Claims could shape future energy savings performance contracts first appeared on Federal News Network.

• The Justice Department recovered more money through the False Claims Act in fiscal 2025 than ever before. New data shows DoJ won $6.8 billion in settlements for healthcare, procurement and tariff fraud. A significant amount of those cases were driven by whistleblowers. DoJ said there were 1,297 qui tam lawsuits filed last year, the highest number in a single year, and the government opened 401 investigations. Of the $6.8 billion in False Claims Act recoveries last year, $5.7 billion related to matters that involved the health care industry.
  (DoJ recovers more money than ever before under the False Claims Act - Justice Department)
• The audit of the 8(a) program is expanding to the largest user of the small business contracting program. The Defense Department is joining the Treasury Department and Small Business Administration in reviewing all sole source contracts under the 8(a) program. Secretary Pete Hegseth said the Pentagon spends $100 million a year on 8(a) sole source contracts and he's worried about fraud. "I'm ordering a line-by-line review of every small business sole source 8(a) contract that is over $20 million. We will look at everything smaller than that too," Hegseth said in a video on X. Hegseth said it will be a two-stage review. If the contract doesn't help the DoD mission, they will cancel it. The other stage is to make sure the small business is the one doing the work and not acting as a pass through.
  (DoD to audit 8(a) sole source contracts - Social media platform X)
• New legislation in the House would put new restraints around the Department of Homeland Security’s use of facial recognition and related technologies. The Realigning Mobile Phone Biometrics for American Privacy Protection Act would establish stronger standards around DHS’s use of mobile biometric identification tools. House Democrats sponsoring the bill say Immigration and Customs Enforcement has been using an unproven biometric identification tool on American citizens in recent months. ICE has been using the tool called Mobile Fortify to help determine a person’s legal status.
  (Thompson introduces legislation to curb unchecked DHS mobile biometric surveillance and protect privacy of American citizens - House Homeland Security Committee Democrats )
• One agency is easing up on in-office work requirements, while another is ordered to consider more exceptions. The Office of Workers' Compensation Programs is offering remote work to some of its employees because of limited office space. An agency memo states that while most of its employees benefit from in-person collaboration, employees in roles eligible for remote work are less collaborative and require distraction-free focus. Meanwhile, a third-party arbitrator is directing the Centers for Medicare and Medicaid Services to meet with one its unions to discuss exemptions to its return to office mandate.
  (One agency eases in-office work requirements, while another is ordered to consider exceptions - Federal News Network)
• The Department of Veterans Affairs is looking for a permanent leader to oversee its benefits division. VA’s deputy secretary is heading up the search for an under secretary for benefits. Once a candidate is selected, they will need to be confirmed by the Senate before starting the job. Under the Trump administration, the Veterans Benefits Administration has reduced its backlog of benefits claims by 60%.
  (VA starts search for permanent Veterans Benefits Administration leader - Department of Veterans Affairs)
• Transportation Security Administration employees will continue to have a union after a new court ruling. A federal judge ruled that TSA and the Department of Homeland Security violated a court order when it made a second attempt to eliminate TSA collective bargaining rights late last year. Judge Jamal Whitehead’s ruling last week blocked a September DHS directive that would have dissolved TSA’s collective bargaining agreement. Whitehead found DHS and TSA’s action would violate a preliminary injunction issued last June that stopped the department’s first attempt to eliminate the agreement. The fight over TSA union rights is scheduled to go to trial this September.
  (Judge finds TSA violated court order in new attempt to dissolve union - Federal News Network)
• The Defense Logistics Agency is turning to artificial intelligence to improve its demand planning. The agency has begun ingesting maintenance, consumption and supply data into its models, starting with the Army and expanding next to the Navy and Air Force, with additional work underway for the Marine Corps. The goal is to more accurately forecast demand, improve inventory health and ensure the right items are on the shelf. DLA is currently about 60% accurate when it comes to demand planning. The agency is also using AI to get after our administrative and production lead times.
  (DLA to use AI to improve demand planning - AFCEA Army IT Day)
• A bipartisan group of lawmakers is pushing to hold military family housing contractors financially accountable for remediation, relocation and property loss. For decades, service members and their families have been exposed to hazardous conditions in privatized military housing; military families are dealing with black mold, contaminated water and asbestos, among other issues. A new bill introduced by Sen. Richard Blumenthal (D-Conn.) would establish Defense Department–wide standards for acceptable humidity levels, create a 24/7 hotline and website for reporting hazards, require third-party oversight and impose penalties for noncompliance, including withholding fees and allowing tenants to retain their rent. “Now it's time for legislation to protect our military families, 700,000. That's right, 700,000 service members and their families presently face hazardous conditions that may cause respiratory illness, developmental delays, other kinds of severe diseases and effects, rashes, neurological symptoms, vision loss, seizures and chronic conditions.”
  (Lawmakers want to hold military housing contractors financially accountable - Sen. Richard Blumenthal (D-Conn.))

The post Justice Dept recovers more money than ever in 2025 for False Claims Act violations first appeared on Federal News Network.

A federal judge has blocked the Transportation Security Administration and the Department of Homeland Security in their latest attempt to dissolve TSA’s union agreement.

In a Jan. 15 ruling, U.S. District Judge Jamal Whitehead granted an emergency motion to prohibit TSA from eliminating a collective bargaining agreement covering approximately 47,000 airport security screeners. TSA had been planning to dissolve the CBA effective Jan. 18.

The American Federation of Government Employees, which represents transportation security officers under the CBA, celebrated the ruling.

“TSA officers – many of whom are veterans – are patriotic public servants who swore an oath to protect the safety of the traveling public and to ensure that another horrific attack like September 11 never happens again,” AFGE National President Everett Kelley said in a statement. “The administration’s repeated efforts to strip these workers of a voice in their working conditions should concern every person who steps foot in an airport.”

The ruling is the latest development in the Trump administration’s effort to eliminate TSA union rights.

Homeland Security Secretary Kristi Noem first moved to eliminate TSA’s union last March. AFGE sued to block that effort, and in June, the court issued a preliminary injunction that prohibited TSA from moving forward with eliminating TSO union rights while the court case played out.

But in September, Noem signed a separate determination that directed TSA to strip security screeners of union rights and eliminate the CBA. DHS and TSA did not announce the new determination until early December. 

TSA argued that the determination was based on a new analysis of the costs associated with the union agreement.

In Whitehead’s latest ruling, however, he pointedly criticized TSA’s latest attempt to eliminate the union agreement. He wrote that officials “do not cite, quote, or otherwise engage with the operative language” in the preliminary injunction, which prohibits TSA and DHS from denying AFGE and TSO’s “any and all rights and/or working conditions guaranteed in the 2024 CBA.”

“The question before the court is straightforward: does defendants’ planned implementation of the September Noem Determination violate the existing preliminary Injunction? The answer is plainly yes,” Whitehead wrote.

He directed TSA to notify bargaining unit TSO’s that the Noem determination will not take effect on Jan. 18, “the 2024 CBA remains applicable and binding, and the currently pending grievances and arbitrations submitted under the 2024 CBA will continue to be processed.”

The case is still scheduled to go to trial in September 2026, absent any new developments or updates.

The post Judge finds TSA violated court order in new attempt to dissolve union first appeared on Federal News Network.

Interview transcript

Terry Gerton We’re talking about something that might be a little esoteric, but is certainly in the air these days, agency investigations that enforce various statutes. The Supreme Court has had some things to say about it recently, and you’ve recently written a paper. Before we dig into the details of your recommendations, just kind of give us an overview of how agencies are taking on administrative investigations.

Aram gavoor Fair, well, administrative investigations, which would be agency non-criminal information gathering procedures, are the bedrock of any forthcoming action that would be an enforcement action. And they’re actually one of the most unregulated spaces in federal government enforcement. There is no one statute that actually controls how those should be conducted. So it’s based on each agency having very general, broad authorities, then deciding how to apply those authorities on an individual basis. And then the target of those information collection processes, usually compulsory ones, doesn’t have a lot of leeway to indicate, oh, this is unfair, you’re going too far, etc.

Terry Gerton Your report says that these investigations often lack transparency and predictability, which is some of what you’ve just described. What are the biggest weaknesses, you mentioned variability as well, in how agencies handle these kinds of cases?

Aram gavoor So, the way that our federal government is set up, and the way Congress regulates the federal government as well as the courts, is that it’s premised on affirmative procedures, usually enunciated in statute or self-imposed by the agency, a level of transparency that’s reasonably high so that members of the regulated public know what’s happening and how their government is regulating upon them, and then a level of that transparency then flowing through to judicial review, usually in the federal court system, usually in the context of review under a statute called the Administrative Procedure Act, where the court determines whether the ultimate agency action is arbitrary and capricious. However, here, the challenge is that the federal government needs to be able to collect information, usually compulsorily, to be able to decide whether to enforce or in furtherance of an enforcement. And there’s very, very few guardrails to stop that. So agency investigations are necessary for our government to do all of the things that our Congress has charged our government to do and that our president, you know, through our election is enforcing and taking care that the laws are faithfully executed. So, that can be everything from an audit, a subpoena, a civil investigative demand, it can really range, it can range from a door knock of government investigators themselves, people with badges.

Terry Gerton Your report describes that these investigations are sometimes idiosyncratic. So without transparency, without predictability, without a standard approach, what does that mean for the people or the organizations that might be under investigation?

Aram gavoor So, what that means is that the target of an investigation has relatively few tools besides complying with the investigation or capitulation to participate in that compulsory information gathering process. There is a Supreme Court case recently that provided an ability of a target of agency investigation or action to be able to challenge it constitutionally. Let’s be pretty clear, 99.9% of targets of agency investigations do not have a direct constitutional challenge of the agency’s authority to be able to investigate or engage in the enforcement. So, what happens in practice is that there’s a lot of pressure on the investigated target. They typically need to hire a lawyer, depending on the size of the company and subject matter as well as the agency that’s doing the investigating, they may need some level of highly specialized legal services. So, for example, if it’s the SEC doing an investigation, that’s a totally different animal from the wage and hour division simply responding to a complaint made by a single employee.

Terry Gerton I’m speaking with Professor Aram Gavoor. He’s the Associate Dean for Academic Affairs and Associate Professor of Law at George Washington University. So your paper and the Administrative Conference of the United States have made some recommendations that agencies could take on that would improve this process. Walk us through what you suggest.

Aram gavoor So first, the Administrative Conference of the United States is this lovely agency, of which I’m actually now a public voting member, that exists to engage in meaningful, nonpartisan, rigorous studies of how to make your government and the executive branch function better. And the study that I was commissioned to deliver, which I did and resulted in a favorable recommendation was how to improve agency investigative procedures for the benefit of the government, but for all Americans as well. And the big themes that my report and the ultimate recommendation concluded was that there needs to be improvements in disclosure and transparency, better improvements with initial investigations, initiating them, how to decide and what process there is for that, the methods of those investigations, you know, the scope, the general nature of the investigation, the potential violations of statutes and regulations being investigated, etc., determining the appropriate course of action following an investigation and then lastly, the negotiation and settlement procedures in the event that an investigation leads the agency to conclude that there was a violation of law or statute within its authority.

Terry Gerton Could agencies just adopt these on their own, or do they require statutory direction to move forward?

Aram gavoor So the great news is that agencies have the ability to adopt these. And also, if we’re just looking at presidential actions, the Trump administration, certainly in the first term, you know, we don’t have a very large data set for the second term, was actually quite serious about providing more transparency for investigations, as well as compulsory information collections government-wide. And I would say that in this administration, with President Trump signing an executive order creating a greater degree of White House control over so-called independent agencies, the ability of the White House to cause behavioral change or agencies themselves to cause their own behavioral change through self-policing is 100% there. It does not require a statute for an agency to be more transparent, to restrain itself somewhat more, to have more rigor with its procedures, higher levels of approval before it reaches out.

Terry Gerton Would you have any concern that an increase in transparency might conflict with confidentiality or privacy protections?

Aram gavoor Well, I would say this. Transparency, as it is understood for the executive branch, has built-in protections for privacy and for confidentiality. Even if you look at the Freedom of Information Act, which is a sub-statute of the Administrative Procedure Act, there are a variety of ways in which, in the broader domain of transparency, there are distinct and significant and important protections to be able to restrain the disclosure of just those things, Terry. And what I would say with regard to all of this is there are going to be a number of sensitive investigations, maybe a civil investigation that could then turn into a criminal referral where it is not in the interest of public policy, it’s not in interest of the executive branch or the American people for even the existence of those and those compulsory information collections at a relatively early level to be publicly revealed. So, for example, if you’re a drug company, there’s a variety of circumstances under which it is strongly in the interest of the drug company for a FDA investigation not to be fully public, because just a hint that there could be something wrong can turn markets. And it’s really about a balance. At what point does public interest in knowing what the government is doing, you know, prevail? I think that’s the baseline that should exist and then what is the rights obviously of the investigated party because they have very important rights right? And it’s very easy if we’re talking about something, generally, but if the government is investigating you, Terry, you know, if you’re getting an IRS audit for tax year 2023, you probably want that to be private. The nature of that information contains large amounts of taxpayer secrecy information under 26 U.S. Code Section 60103. It’s a very good example of something that shouldn’t be public. At the same extent, let’s say that EPA is knocking on your door because you’re violating the lead paint rule, and there’s some kids getting sick because they’re eating paint chips, that might make more sense for it to be publicly known. And of course, Terry, I’m sure you comply with all laws all the time.

Terry Gerton I try my best. So let’s just imagine that all of the agencies have your paper and they’ve read it and they want to move forward on it. What would the first steps look like and how would you know that transparency is improving?

Aram gavoor So it’s a multi-step process. The good part is the report and the recommendation is essentially a recipe for how to bake the cake. And the agency has to decide how that recipe applies to their statute, their mission, their goals, because obviously the federal government’s very broad. So that exists. I’m also infrequently making myself available just for this public service, right? I’m happy to have any conversation with any agency, and I do frequently, on these types of questions. But the good evidence that you might be able to see is, for example, if there is all of a sudden a published enforcement manual, first one is created, second it is published, and third it is available to you so you can actually understand how the agency is doing what it does if it comes knocking on your door. That’s something that’s very simple. Or for you to understand based on public disclosures, how the agency decides how to investigate, what to investigate when to stop an investigation. So you can have some level of understanding besides a black box on the other side of what you’re dealing with.

The post Authorized investigations shouldn’t mean unpredictability, why transparency and clear deadlines matter for agency fairness first appeared on Federal News Network.

Interview transcript:

 

Terry Gerton I want to talk about a letter that was released on December 9. Over 100 former DOJ civil rights attorneys and staff really released an extraordinary warning about the destruction of the Department of Justice’s Civil Rights Division. What prompted that letter, and why now?

Paul Kiesel What prompted the letter was that there have been, over the last now 11 months, close to 5,000 career Department of Justice attorneys who have either resigned or been removed. And it’s a reflection that these are individuals that are non-political, they’re non-partisan, they’re there to serve justice for our American system, and they have been under assault. And so this is just consistent with that same approach of taking down members of the justice system that don’t seem to agree with the administration’s policies.

Terry Gerton The letter walks through a number of very specific constraints. What does this tell you about the state of the organization right now?

Paul Kiesel They’re expressing their frustration that in trying to do the job that they were hired to do and many of them — like Liz Oyer, who was the pardon lawyer — left Big Law and became a federal public defender. Then ultimately, when she resisted providing a gun permit to someone who’d been convicted of domestic violence, was fired for doing her job. And that’s really what it’s all about.

Terry Gerton Is this something new, or is this an escalation of a trend that we’ve been seeing over time?

Paul Kiesel I really think it’s something new. This really is an unprecedented experience where you have members of the Department of Justice who are either being fired or resigning over simple policy rules that are within what they’re supposed to be doing. They’re not outside the box. They’re working within the box that’s been created for them by the Department of Justice, and yet they’re being told to do something else. And their only option is to resign, if not be fired.

Terry Gerton With the loss of 5,000 people, what does that mean for the organizations, for the Department of Justice’s ability to actually carry out its mission?

Paul Kiesel I think probably Todd Blanche’s fireside chat he did some months ago, where he acknowledged that they were losing lots of career Department of Justice attorneys and saying that, quote, we are at war — his words, “we’re at war” — and we need young lawyers who are prepared to lose a lot, but fight. And I think the problem is we’re losing institutional history. We’re losing career prosecutors who were there for the right reasons. And so this is going to take years, if not well over a decade, to ultimately hopefully rebuild what was there in the first place.

Terry Gerton The letter focuses on the Civil Rights Division, but it also talks about a broader pattern of politicizing the Department of Justice. What does that really look like in practice? How do you see that playing out?

Paul Kiesel In practice, I think what’s happening is that people are being told that what they need to do in order to follow the dictates of the Trump administration is X, Y and Z. And in order to be loyal to the president of the United States, they need to engage in certain acts that are politicizing by suggesting that they are Trump’s attorney. There’ve been a number of federal judges who’ve not ruled favorably to the administration, and the president has not been shy about blaming someone that he quote-unquote appointed and is no longer being loyal to the president. And look, when you take the oath to be a Department of Justice attorney or a judge, you take an oath to the Constitution, not to the President of the United States.

Terry Gerton I’m speaking with Paul Kiesel. He’s the founder of Kiesel Law and of Speak Up for Justice. Speaking of becoming political, we’ve also seen the resignation of acting U.S. Attorney Alina Haba after the court ruled her appointment unconstitutional. So how does that play out into the bigger picture of the pressure on the Department of Justice and the judiciary that you just mentioned?

Paul Kiesel Alina Haba is a perfect example of where they attempted to bypass congressional approval. So the president can appoint a temporary U.S. attorney in a particular jurisdiction. In this case, it was New Jersey. So Alina Haba was appointed the acting U. S. attorney in New Jersey. Well, the Senate never acted to confirm her appointment; in other words, her appointment no longer becomes valid “unless”. And the “unless” is there’s an escape valve: If the judges of the district in which the U.S. attorney overseeing vote to approve and maintain that U.S. attorney, then in fact, the U.S. attorney remains in place. Well, the judges, the federal district judges in New Jersey, I believe it’s in Essex County in Newark, New Jersey, voted not to maintain Alina Haba as their U.S. attorney, which would essentially mean she’s out. She’s no longer acting. She has got to be removed from that position. Rather than accept the decision of the fact that the Senate didn’t approve and that the judges did not vote for, they challenged the non-appointment of Alina Haba as the U.S. attorney to the Third Circuit. And ultimately the Third Circuit said, no, no good, you cannot be the U.S. attorney. And ultimately she packed up her bags and left. But that is just symptomatic of not following the rules that have been laid out constitutionally for the appointment and the confirmation of the U.S. attorney. That’s happened in a number of different jurisdictions around the country, in fact even California, Los Angeles, has the same problem with its U.S. attorney as happened with Alina Haba. So it’s an ongoing story.

Terry Gerton So when the concerns raised by this letter about the Civil Rights Division specifically and about the Department of Justice more broadly actually come into play, how does it affect everyday Americans? Where do they see it? Where do they feel it?

Paul Kiesel They feel it where you’ve got indictment of James Comey and the indictment Letitia James, where the U.S. attorney wouldn’t act to indict, but ultimately a non-criminal lawyer was appointed by the president to assume the role of the U.S. attorney, Lindsey Halligan. And ultimately bypassing the rules, she got an indictment. A grand jury arguably indicted the two of them. And that’s what plays out. All of us, as Americans, are at risk. If we’re not following the rules that are in place, every American’s safety, every American’s security is at risk. When you begin to politicize the judiciary, you lose the guardrails that the framers of the Constitution put in place in the first instance. And those guardrails are not just being removed with a crowbar, they’re being run over by a tank.

Terry Gerton The Speak Up for Justice Forum that you head had a bipartisan panel last month of former U.S. attorneys that tackled some of these issues. What did you hear in that panel?

Paul Kiesel I heard concern, a broad concern of very respected, very well-regarded lawyers, expressing the concerns they have about where our country is going. When you’re politicizing the Department of Justice, when you’re removing the guardrails of our democracy, there’s real fear. Now, having said that, I’ll say that Gov. Christie, when I said, are you worried about American democracy when these things are happening? And he pushed back, and he said, no, I’m not worried. This obviously is not a good situation, but our democracy is flexible. Our democracy has survived other challenges in the past, whether it was Leo McCarthy or the Civil Rights Movement of the ’60s. We’ve survived those times. And he was optimistic, which makes me more comfortable knowing that optimism exists. Because I don’t want to be fear-mongering, but I want the country to realize the risks we have as a nation when we begin to engage in these sorts of activities.

Terry Gerton In that spirit of optimism then, what do you think needs to happen inside the Department of Justice and perhaps beyond to restore trust and protect civil rights enforcement?

Paul Kiesel I’m going to say in some ways it’s up to Congress and up to the courts. We need to push back on the administration’s consistent attempts to broaden the margins of what the president of the United States is actually permitted to do. Whether it is going into a sovereign nation — none of us who are aware what’s going on in Venezuela were comfortable with President Maduro. Hugo Chavez took down the justice system. A program we did several months ago had federal judge Javi Saldivia, who fled Venezuela under fear of imprisonment or assassination because of what was happening to the judicial system in Venezuela. So when you have our president bypassing Congress and simply going down to a sovereign nation and kidnapping or doing a rendition of a leader of another country, those are the kinds of guardrails that are built in that should not be happening in this country today. And we as a people need to react to it quickly, because the consequences can be dire and they can happen very fast.

Terry Gerton Does your spirit of optimism extend to congressional action on this matter then?

Paul Kiesel Well, it does. I mean, look, when you have Marjorie Taylor Greene, who had been a staunch ally of President Trump, who was kind of vicious in the way she approached members of Congress and members of the judiciary, when she’s called Marjorie Traitor Greene and she decides not to run again, her whole attitude has shifted. And so I’m hoping that other members, elected members who remain in Congress realize that we’re at risk, nationally and internationally and losing our democracy, they’ll push back. And maybe what’s just happened to Maduro will be that process because he bypasses Congress. And the Senate, I don’t know where that trigger, where that circuit breaker gets tripped, but I’m hopeful. If there’s members of Congress listening to this conversation, now is the time. We don’t have any more time to waste to demonstrate the three-tripartite measures of government that we have in this country. The legislative branch, the executive branch and the judicial branch need to act to protect our country.

The post More than 100 former DOJ attorneys: Civil rights, vulnerable communities under new threats first appeared on Federal News Network.

Interview transcript:

 

Mike Meese When you think about it, [2025] had as many changes for the federal workforce and for military service members as we have had almost in the last 60 years that was not during wartime. You know, if you think about it we had massive changes after 9/11, an external crisis. We had massive changes after the 2008-2009 Great Recession; another economic crisis and obviously massive changes after COVID. But here we had the election of President Trump, and in a lot of ways that he came in was adjusting for the expansions of government that took place during the last three crises, where he peeled back a lot of that. People may agree with it, people may disagree with it, but it certainly had a huge impact on people in the military, people that were veterans that were serving in the civilian workforce and many other aspects of government.

Terry Gerton Give us a couple of examples of things you saw there at Armed Forces Mutual.

Mike Meese A lot of our members, a lot of our folks were former military, they end up now working for the federal government and were given the option of the early retirement. Consequently, many of them had to go through very rapidly and assess, what is my financial situation? How much longer can I work? If I take this fork in the road, so to speak, is my family going to be secure? Again, without knowing the unknown of what happens if you leave federal service, are there going to be jobs that are going to be out there within the economy? At the same time, you had other pretty radical changes. It wasn’t an economy that you knew that you were jumping out into. There was the liberation day, so to speak, on the first of April when the tariffs were put in place, and there was substantial economic uncertainty. So it was, there’s one government train that you were on that you might want to step off of, and if you recall back earlier in this year, many economists felt that we were going to go into a recession. Fortunately, we managed to avoid that. The market continues to do well. The economy actually seems to continue to be doing well in spite of some of the mastications of a lot of economists.

Terry Gerton Were there any changes you saw in the past year that you’d want to make sure continue?

Mike Meese Well, I think being able to be respectful of government workers and giving them the options wherever you did. The people in the Department of Veterans Affairs talked very rapidly about that they were going to try to take down 80,000 workers. Most of those have tended to be by voluntary separations or not hiring new people, and it’s had an impact on the workforce. But as much as possible, respecting the wishes of government workers and being able to do that has been a positive thing. Also, it will be very interesting because, as sort of a studier of this from a public policy perspective, the president has really stretched the bounds of executive power, and now courts and increasingly the Congress are peeling that back. One example was when the president adjusted the collective bargaining rights of many federal workers, Congress has recently started to peel that back. And so the question is, are many of these changes that were done unilaterally by the executive going to stand the test of time as a powerful president doing things? Whether you agree or disagree with them, unless they become institutionalized, we will tend to revert back to where we were before.

Terry Gerton That’s helpful insight. Certainly one of the things that marked the calendar year 2025, the beginning of fiscal year 2026, was the government shutdown, the longest lapse in appropriations ever. I think so many folks don’t understand the tenuousness of many service members and veterans’ financial status. And whether they missed a SNAP payment or they missed up a paycheck, many were really significantly impacted. Talk us through that and what you saw at Armed Forces Mutual.

Mike Meese Yeah, it’s unfortunate, but somewhere in between a quarter and a third of service members are just one or two paychecks away that if they had a $400 extraordinary expense, that would really set them back. And so consequently, although fortunately, the shutdown was resolved and no military paychecks did not take place, there was a heck of a lot of uncertainty in that. For Armed Forces Mutual, for example, we have a lot of people that pay us their insurance payments by allotment. Normally we get those allotments four days before payday, or we get the information from the Defense Finance and Accounting Service four days before payday. We actually did not get them until about 12 hours before payday. So it literally was the federal government putting things together right before the 31st of October to be able to get things done. And that anxiety for us, and I’m sure every other military-supporting organization, all the banks and everybody else, were working right at the last minute. Service members were postponing vacations. The biggest issues that we saw was people that were literally in the middle of a permanent change of station and the funds either would not come through for that, or maybe they were supposed to go into government quarters, but it was not an essential person that was going to inspect those government quarters. So they’re living on the economy having to pay for a hotel bill while they were moving into those quarters. And so although it did not affect everybody across the board, there were selected pockets where people ended up with some very extraordinary expenses that they might not have been prepared for.

Terry Gerton Mike, there was some proposed legislation that would perhaps mitigate this in the future. What’s your sense of its possibility?

Mike Meese The good news was, and I think we talked about this when we talked in October, everything in the law says that people that were going to be furloughed were in fact going to get back pay. And when this passed, part of the law was for individuals to get back pay. That ought to be permanently part of that law so that you remove the uncertainty and the potential threats that people are not going to get paid on that. In fact, what we really ought to do is find a way for Congress and the executive to work together to get all 13 bills passed by the end of the fiscal year. And that way, you don’t run into this challenge. In fact, this shutdown is probably a good example because I don’t think, whether you’re on one side or the other, anybody hugely politically benefited from this one way or the other. People will write op-eds about it, but nobody outside of Washington cares about that. They just know that government didn’t function for almost a month and a half.

Terry Gerton I’m speaking with Mike Meese. He’s the president of Armed Forces Mutual. Mike, what lessons do you want to make sure that service members, families and veterans take from 2025?

Mike Meese Well, the first is, just following up on the shutdown, some people, especially federal civilian workers, they got lump sum pays in November, at the end of November, where they deferred going out to dinner, deferred vacation or deferred other spending in October. When you get that lump sum pay, that’s actually a good opportunity because you can’t go back out to dinner like you were going to in October. Save that money, set it aside in an emergency fund. Prepare for future potential shutdowns and put the money toward your long-term goals. So that, I think, would be a very important thing. The second thing is, be prepared yourself, always. And that’s keeping your skills up, keeping your resume handy, keeping that LinkedIn profile there. I don’t know what will happen in the future in terms of other federal government shutdowns or opportunities for a deferred retirement system, but it’s always something that people should bear in mind that, especially since we have seen that government jobs that they thought were going to be permanent may not be permanent, you’ve got to be able to have other options.

Terry Gerton Well, speaking of that smart financial planning, any advice for folks who are navigating financial stress through the holidays or perhaps just after?

Mike Meese Well, that is always a challenge. What I tell people, we sometimes have gotten a little bit of a habit; back during COVID when you couldn’t travel, you tended to get more extravagant gifts for the family that you were not visiting. Now that you’re visiting and traveling to them, recognize that just being there is part of that gift, so you don’t need to be quite as lavish on the expenditures. The other thing that I talk with military families, there was one Christmas where I had five members of our family, it turned out that visiting two sets of relatives, we actually flew on Christmas day. And if you fly on Christmas, it’s actually a very cheap fare. It’s kind of strange being in the airport on Christmas but all the flight attendants and pilots are wearing hats and singing Christmas carols. They have to work that day and it turned out to save us a lot of money for a family of five. So there are ways that you can get deals even during the holidays.

Terry Gerton And as you turn your attention to 2026, what legislation or policy changes will you be watching for as the new year begins?

Mike Meese Well, it’ll be very interesting what happens with federal government workers as well as the military. Currently in the National Defense Authorization Act, the military pay increase is going to be 3.8%. And so that is actually ahead of inflation. For me as a military retiree, my pay increase as military retiree and Social Security age is only 2.8%, so the military is doing a little bit better. Federal workers, on the other hand, are going to get a 1% increase, except if they are in federal law enforcement positions, like the FBI, Customs and Border Protection, Secret Service and any other federal border law enforcement. The proposal is for them to get a 3.8% increase, the same as the military. So when you do get that pay increase, whether it’s 1% as a civilian worker, well you’ll be a little bit behind inflation, or 3. 8% in the military or law enforcement, be sure to use that judiciously and maybe put some of that away into savings because you don’t know what will end up happening in 2026.

The post From paychecks to policy shifts, 2025 tested military families. How will they fare in 2026? first appeared on Federal News Network.

The United States Patent and Trademark Office has published proposed regulations that would fundamentally transform the inter partes review (IPR) landscape, potentially eliminating IPR as a viable option for many patent challengers. Euphemistically referred to as “Revision to Rules of Practice before the Patent Trial and Appeal Board,” these changes would create a “one-and-done” system where patents that survive any initial validity challenge — regardless of its quality or completeness — become virtually immune from subsequent IPR proceedings. Both the patent owner and the company facing patent assertion must understand these changes and adjust their litigation strategies accordingly.

The new regulatory framework

1. Mandatory stipulations upon institution

The proposed amendments would require petitioners to stipulate that they will not pursue any invalidity challenges in other venues if the Patent Trial and Appeal Board (PTAB) institutes IPR. This goes significantly beyond current estoppel provisions, which only applies after a final written decision and is limited to grounds that were raised or reasonably could have been raised.

Practical impact: Companies facing patent assertion would be forced to make an all-or-nothing decision at the IPR filing stage. If you file an IPR petition and it is instituted, you forfeit all anticipation and obviousness defenses in district court — even those not included in your petition. This dramatically raises the stakes for IPR filings and may discourage challenges to questionable patents.

2. Absolute bar following prior challenges

Perhaps most significantly, the proposed amendments would prohibit IPR institutions against claims that have survived any prior validity challenge in district court, the International Trade Commission (ITC), or previous USPTO proceedings. Unlike the current discretionary framework, this creates a mandatory bar with no exceptions for new prior art or arguments.

Practical impact: If you are the second or subsequent defendant sued on a patent, you may have no IPR option if an earlier defendant mounted any validity challenge — even if that challenge was poorly executed, settled early or based on inferior prior art. This “first mover” problem particularly benefits non-practicing entities (NPEs) who can strategically select weak first defendants.

3. Parallel proceedings prohibition

The proposed amendments would categorically bar IPR institution when a district court trial or ITC determination “will more likely than not” occur before the PTAB’s deadline for a final written decision. This replaces the current discretionary Fintiv analysis with a bright-line rule.

Practical impact: Patent owner plaintiffs can effectively block IPR access by filing in rocket dockets like the Western District of Texas, where trials routinely occur within 18 months. Even if circumstances change — such as trial delays or potential stays — the initial “more likely than not” determination would be binding.

4. Limited “extraordinary circumstances” exception

The proposed amendments permit subsequent IPR challenges only under “extraordinary circumstances,” which are significantly narrowed to situations such as prior bad faith conduct or intervening changes in the law. Discovery of new prior art, inadequate prior representation or clear errors in earlier proceedings would not qualify. Frivolous or abusive petitions would be subject to sanctions and attorneys’ fees.

Practical impact: The exception is so narrow as to be virtually meaningless for most patent defendants. Even breakthrough prior art discovered after an initial challenge would not justify a second IPR attempt against the patent.

Strategic implications for your business

1. For companies facing patent assertions: Immediate actions required

• Coordinate with co-defendants: If you face assertions alongside other defendants, immediately establish coordination agreements regarding IPR strategy. The first filer may determine everyone’s fate.
• Accelerate prior art searches: Conduct comprehensive prior art searches immediately upon receiving notice of potential assertions. Waiting until after litigation commences may be too late.
• Evaluate forum options: Consider proactive declaratory judgment actions in favorable venues to avoid rocket dockets that trigger the parallel proceedings bar.

2. For patent owners: New enforcement advantages

• Strategic first suits: Consider initially suing smaller, less sophisticated defendants who may mount inadequate validity challenges, thereby immunizing your patents from subsequent IPR attacks.
• Rocket docket filings: Filing in fast-moving courts can effectively eliminate IPR risk through the parallel proceedings bar.
• Settlement leverage: The proposed rules significantly increase settlement leverage, as defendants cannot rely on subsequent IPR opportunities if initial challenges fail.

3. For technology companies with patent portfolios: Portfolio management considerations

• Defensive publication strategies: With reduced IPR availability, preventing competitor patents through defensive publications becomes more critical.
• Prosecution strategy: Expect more aggressive examination challenges as IPR becomes less available for post-grant correction.
• Freedom-to-operate (FTO) analyses: Conduct more thorough FTO analyses earlier, as post-assertion challenge options will be limited.

4. Industry-specific impacts:

Pharmaceutical and biotechnology
The proposed amendments particularly benefit branded pharmaceutical companies by making it harder for generic manufacturers to challenge patents through IPR. Subsequent generic filers may be bound by inadequate challenges from first filers, potentially extending market exclusivity.

High technology and software
Technology companies facing assertions from NPEs will be most negatively impacted. NPEs can leverage the rules to protect weak patents by ensuring initial challenges come from resource-constrained defendants, then asserting those “validated” patents against major industry players.

Manufacturing and consumer products
Companies in competitive industries where cross-assertions are common must carefully consider whether IPR remains viable given the mandatory stipulation requirements. District court litigation may become the only option for comprehensive validity challenges.

Recommended actions

1. Review existing litigation: Companies that may face patent assertions should immediately assess any pending patent disputes to determine whether IPR petitions should be filed before the new rules may take effect.
2. Update IP policies: Companies that may face patent assertions should revise internal procedures for responding to patent assertions, emphasizing early coordination with counsel and comprehensive prior art searches.
3. Budget adjustments: Anticipate higher patent defense costs as district court litigation becomes the primary venue for validity challenges.
4. Insurance reviews: Evaluate whether current IP insurance coverage adequately addresses the increased litigation risks under the new framework.

The USPTO’s proposed rules represent the most significant restriction on IPR accessibility since the America Invents Act created the procedure in 2012. By essentially creating a “one-and-done” system for validity challenges, the rules would restore many of the inefficiencies and inequities that IPR was designed to address. While the USPTO frames these changes as promoting efficiency and quiet title, the practical effect would likely be to shield questionable patents from review while dramatically increasing litigation costs for innovative companies. Immediate action is required to address these proposed changes through the comment process and to adjust litigation strategies in anticipation of their potential implementation.

Edward “Ed” Lanquist is a shareholder in the Nashville office of Baker Donelson.

Lea Speed is a patent attorney and patent litigator in the Memphis office of Baker Donelson.

The post USPTO proposes dramatic restrictions on patent challenges through inter partes review first appeared on Federal News Network.

Interview transcript:

Stephen Bacon We’re seeing a lot more protests, particularly at the Government Accountability Office, in the last several months that have been filed using AI — a party that’s not represented by counsel using AI to generate the protest and then file it. But we’re seeing some problems with that in some of the decisions that are coming out of the GAO.

Terry Gerton So tell me more about how companies are using AI. You mentioned that they’re doing this without the help of legal counsel as well.

Stephen Bacon That’s right, at least the ones that we’ve seen so far in public decisions at GAO. It’s not entirely clear how the protesters are using it, but we can imagine that maybe they’re taking the debriefing information that they’re getting from the agency, they’re uploading that into an LLM like ChatGPT or Claude, and using it to develop a protest argument that they can file with the GAO. And what we’re seeing in the decisions is that many of the protests that have been filed using AI contain hallucinations. Case citations that don’t exist to actual cases that have decided by GAO. So the legal precedent that the protesters are relying on, in fact, don’t exist. And that’s one of the inherent limitations of LLMs is that they hallucinate. They come up with decisions, citations that don’t exist. To be clear, we’re not just seeing this by protesters that are not represented by counsel. This is happening in courts all across the country where attorneys are using AI to help generate legal filings and then getting in trouble with the courts when those citations don’t actually exist. Because when you file a protest or any kind of legal filing that has a citation in it, the court is relying on you to make an accurate representation that the legal authority that you’re relying on is in fact correct and is in fact a decision that has been issued in the past. And so both courts and the GAO now are saying that you can get in trouble, you can be sanctioned as a protester if you submit a protest that has some kind of fake citation that’s inaccurate.

Terry Gerton What does that mean to be sanctioned as GAO reviews the case?

Stephen Bacon At GAO, they have inherent authority to sanction protesters, and really the main sanction that they have is to dismiss a protest. If you happen to file a protest that contains fake citations, they reserve the right to dismiss your protest. Even if you have legally valid grounds to protest — maybe you have identified an error in the agency selection process — if GAO determines that you relied on fake citations in your protest, they could dismiss the protest, even if the actual merits of it may have some validity to it.

Terry Gerton So there’s some interesting intersections of situation going on here, I think. There’s a lot of uncertainty on the contractor side about the new FAR regulations and how those are going to be enforced, certainly across different agencies. We’ve had a reduction in the contractor workforce, so there are fewer contractors managing more acquisitions. And now we have AI coming in to sort of simplify, but potentially also make much more complex, the whole protest market. So do you expect all of this to be leading to an increase in protests? And what does that mean for GAO as they’re trying to sort out the validity of all the claims?

Stephen Bacon I think it certainly has the potential to, if what we’re seeing in the decisions is a trend towards more pro se protesters — pro se being parties that are not represented by counsel — using AI. To the extent that that trend continues, I think that there’ll be a lower barrier for protesters to file at GAO if they think that they can use an LLM to generate a protest without having to spend legal fees on outside counsel. Which is understandable, particularly for small businesses who may have resource constraints. If they feel like they can use an LLM to help them challenge an award decision, we may see more of that at GAO. I think what GAO is saying in these opinions that have come out…at first, they’re warning protesters that using LLMs that create fake citations is sanctionable. They didn’t actually take the step of issuing a sanction. But finally, in the last several months, we saw that they did, in fact, take that step of dismissing a protest, actually several protests that were filed by the same company, that contained fake citations. They actually took that step and dismissed those protests on the grounds that they misrepresented legal authority in their filings with the GAO.

Terry Gerton I’m speaking with Stephen Bacon. He’s a partner in the government contracts practice group at Rogers Joseph O’Donnell. You mentioned small businesses and their capacity constraints in terms of they may not have in-house counsel, they may have a lot of folks who can review all of this. But does this have the effect of sort of adding some equality into the protest market where they can use AI to submit? And do you think then that that’s going to change the protest space? Is this just the tip of the iceberg in terms of transformation?

Stephen Bacon It certainly lowers the barrier for companies. The GAO was set up to be a relatively informal forum to allow for the quick and efficient resolution of protests. I don’t think what GAO is saying necessarily is that AI cannot be used. But what they are saying is that we have a process to resolve bid protests and we want to maintain the integrity of that. And if you’re going to use AI, you need to be sure that you verify that what you’re filing is accurate. For anybody that is thinking about using AI to generate a protest, there needs to be some level of quality-checking of what is in the draft that’s generated by an LLM to be sure that you’re making accurate representations to the GAO in your protest. So that means checking the legal citations to make sure that the cases actually exist. That basic level of quality-checking needs to happen. Otherwise, GAO could just be flooded with protests that have no merit and that have lots of inaccuracies in them. And that’s not going to help them resolve protests in a way that’s efficient and achieves their ultimate goal.

Terry Gerton So where do you think we go from here, and what’s your guidance to the companies who are considering using AI to file their protests?

Stephen Bacon For any company that’s contemplating using an AI to generate protests, the basic point: If you’re going to do it, you have to verify that the citations are accurate. You have verify that what an LLM is generating is citing to a decision that has been published by GAO in the past. And that’s relatively easy to do. GAO has all of their decisions on their website, and you can go and check those and verify not only that the citations are accurate, but the legal proposition that you’re asserting is supported by the case that’s being cited. That’s important, too. That’s kind of table stakes. But the other thing I would say is that what we’re seeing in a lot of these decisions, where it’s obvious from the decision that AI has been used and that GAO is pointing out that there are these fake citations, is that oftentimes those protests are being dismissed for procedural defects as well. So things like timeliness and bid protest standing. Those kinds of procedural issues are being missed by the protesters who are using LLMs to generate the filings. And that’s because of another inherent limitation of an LLM; it often will tell you what you want it to say in a lot of ways. So if you tell the LLM, generate me a protest on this issue or that issue, it will do that and it might produce something that looks, on its face, credible and compelling. But if you don’t have the domain knowledge of the timeliness rules and the standing rules, you’re often going to overlook those things and the LLM is not going to catch it for you. And so you may be in a situation where you file something that looks on its face credible, but is in fact an untimely protest.

The post AI-crafted bid protests are on the rise, but what’s the legal fallout? first appeared on Federal News Network.

House Democrats are urging the Transportation Security Administration to abandon efforts to do away with a collective bargaining agreement covering some 47,000 TSA airport screeners.

In a Dec. 23 letter to Homeland Security Secretary Kristi Noem and acting TSA Administrator Ha Nguyen McNeill, 12 Democrats on the Homeland Security Committee say they have “deep concern” about the latest attempt to overturn TSA’s union agreement.

The letter signees include Homeland Security Committee Ranking Member Bennie Thompson (D-Miss.) and subcommittee on transportation and maritime security Ranking Member LaMonica McIver (D-N.J.).

Their letter points to an ongoing case in federal court over the Department of Homeland Security’s directive to end TSA’s collective bargaining agreement. The judge in that case issued a preliminary injunction in June blocking DHS’s previous efforts to dissolve the agreement.

“DHS’s renewed effort to unilaterally void a valid, seven-year collective bargaining agreement – without a resolution to the pending litigation – displays a clear and flagrant disregard for the rule of law and workers’ rights,” the lawmakers write.

TSA has said it plans to eliminate the collective bargaining agreement and implement a new “labor framework” for the agency starting Jan. 11.

The American Federation of Government Employees represents most TSA staff under the 2024 collective bargaining agreement. AFGE joined with several unions in filing the lawsuit challenging DHS’s prior attempt to dissolve the CBA.

Lawyers representing DHS in federal court recently filed a motion to dismiss the case, arguing that Noem’s new September determination to end TSA union rights is based on “an entirely different supporting record and data unavailable” at the time of Noem’s previous directive, which led to the court case and the preliminary injunction.

AFGE’s lawyers have since countered with an emergency motion to enforce the preliminary injunction. They argue DHS is attempting to “evade the court’s injunction.”

The judge overseeing the case recently directed the parties to confer on a briefing schedule for the emergency injunction.

The Trump administration has sought to do away with most federal employee unions. At DHS, leaders have argued that collective bargaining for TSA officers “is inconsistent with efficient stewardship of taxpayer dollars and impedes the agility required to secure the traveling public,” according to TSA’s statement on the new labor framework.

“Our Transportation Security Officers (TSOs) need to be focused on their mission of keeping travelers safe not wasting countless hours on non-mission critical work,” Adam Stahl, senior official performing the duties of TSA deputy administrator, said as part of a press release. “Under the leadership of Secretary Noem, we are ridding the agency of wasteful and time-consuming activities that distracted our officers from their crucial work.”

But in their letter, House Democrats argue that the 2024 union agreement was negotiated “in good faith to address long-standing issues at TSA, such as high attrition rates, inconsistent workplace policies, and the lack of a proper system for employees to voice safety and operational concerns.”

“Eliminating collective bargaining protections for TSOs will not improve efficiency or security,” they wrote. “It will silence workers who are best positioned to identify safety risks, exacerbate attrition at a time of ongoing staffing challenges, and ultimately make air travel less safe for the American public.”

The post House Dems urge TSA to preserve collective bargaining agreement first appeared on Federal News Network.