OPM's New NDA Covers Pre-Decisional Work: What Feds Can Still Say by June 26

Last Updated: May 27, 2026 Reading Time: 13 min

On May 27, 2026, OPM published Federal Register notice 2026-10471 proposing a governmentwide nondisclosure agreement for every federal employee. The proposed NDA covers a scope so broad that legal experts estimate it could reach 60-80% of routine federal work product, including internal agency operations, personnel matters, procurement decisions, and any "pre-decisional or deliberative material." This is not an SF-312 replacement (SF-312 covers classified information only) but a separate, parallel restriction on top of existing rules. Public comments are due by June 26, 2026, and this guide walks through what the NDA actually covers, what whistleblower protection survives, and exactly how to submit an effective comment.

Key Takeaways

• Federal Register notice 2026-10471 published May 27, 2026. Comment deadline June 26 at regulations.gov, docket OPM-2026-0100.
• Scope is far broader than SF-312. Covers internal agency operations, personnel matters, procurement, and any pre-decisional or deliberative material that is not publicly available.
• Refusing to sign triggers the suitability rule backdoor. The June 2025 Suitability and Fitness proposed rule (FR 2025-12448) makes refusal an "unsuitable" finding that supports removal.
• Whistleblower Protection Act savings clause is preserved. Disclosures to Congress, Inspectors General, and OSC remain legally protected. The chilling effect on press disclosures is the bigger issue.
• Post-employment restriction is indefinite. Former federal employees still need written agency permission to speak to journalists about covered information.
• Penalties include criminal exposure. Removal, debarment, civil penalties, and potential criminal liability under 18 USC 641 and related statutes.
• AFGE and NTEU both oppose. Both unions have indicated they will challenge the NDA legally if finalized in its current form.

What the NDA Actually Covers

The Federal Register notice defines covered information as:

"All non-public, confidential, or proprietary information, to include internal agency operations, personnel matters, procurement processes, or any sensitive, pre-decisional or deliberative material that is not currently publicly available."

This language is a significant departure from existing federal NDAs. The key phrase is "pre-decisional or deliberative material that is not currently publicly available." Most of what federal employees handle day-to-day falls into this category. Internal email threads about a policy in development, draft memos circulating for comment, procurement evaluations before contract award, personnel deliberations about reorganization, performance discussions, all of this would be covered.

Comparing Federal NDA Scopes

Form	Information Covered	Defined By
SF-312 (Classified Information NDA)	Classified information only (Confidential, Secret, Top Secret)	Executive Order 13526; objective category
SF-2025-EX (DoD specific)	Classified plus certain controlled unclassified information	DoD Directive 5230.09
Proposed OPM NDA (FR 2026-10471)	Internal ops, personnel, procurement, all pre-decisional and deliberative material	Subjective, agency-defined

SF-312 has been the baseline classified NDA for decades. It is narrow because classified status is objectively defined: information is either classified or it is not. The proposed OPM NDA, by contrast, leaves the determination of what counts as "sensitive, pre-decisional, or deliberative" to each agency. That subjective scope is the central legal vulnerability identified by both unions and civil liberties groups.

The 60-80% Estimate

Legal analysts including the NYU Journal of Legislation and Public Policy and the Freedom of the Press Foundation estimate the new NDA could cover 60-80% of routine federal work product. The math is straightforward: most agency work is internal deliberation about policy, personnel, or procurement before a final decision is published. By the federal government's own internal categorization, "pre-decisional" applies to the majority of communications between employees who are below the level of final decision-makers.

For comparison, classified information represents an estimated 3-5% of federal work product (the figure is itself classified but routinely cited by oversight committees).

The Suitability Rule Backdoor

The NDA is technically a form an agency may choose to require. The June 2025 OPM Suitability and Fitness proposed rule (Federal Register 2025-12448) makes the choice essentially binding once an agency adopts the form.

Under 5 CFR Part 731, employees who fail to meet "suitability" criteria can be removed from federal service. The suitability rule expanded the criteria to include failure to comply with required agency forms. Once an agency requires the OPM NDA, refusing to sign becomes a suitability failure. Suitability failures support removal.

The practical effect: the NDA is framed as voluntary at the agency level but mandatory at the employee level. Once your agency adopts the form, signing is a condition of continued employment.

Pattern Match: The Hegseth Pentagon NDA Precursor

The OPM NDA tracks an early-2025 Pentagon precedent. Defense Secretary Pete Hegseth issued internal NDAs to Pentagon civilian employees in February 2025. Those NDAs covered similar pre-decisional and personnel-related material. Employees who refused to sign were reassigned to lower-visibility positions, and the Pentagon's general counsel office issued written guidance that signing was a condition of continued access to sensitive working groups.

The OPM proposal extends the Hegseth model governmentwide. Documents released through FOIA in March 2026 show the OPM working group cited the Pentagon precedent specifically.

What Whistleblower Protection Actually Survives

The good news first. The NDA includes the required Whistleblower Protection Act savings clause under 5 U.S.C. 2302(b)(13). Three protected disclosure channels remain legally available:

1. Disclosures to Congress (members or committees) about waste, fraud, abuse, or violations of law.
2. Disclosures to Inspectors General at any federal agency.
3. Disclosures to the Office of Special Counsel.

A federal employee who reports concerns through any of these three channels is legally protected from retaliation under the WPA, regardless of what the NDA says.

The Chilling Effect Issue

Legal protection is one thing. Practical effect is another. Three structural problems remain:

First, the press is not on the protected list. The WPA savings clause covers Congress, IGs, and OSC. It does not protect disclosures to journalists. Under existing law, a federal employee who leaks pre-decisional information to a reporter faces potential discipline. Under the new NDA, that exposure expands to include any pre-decisional or deliberative material, even non-classified routine documents.

Second, the suitability rule changes the burden of proof. Under existing whistleblower protection, the employee must prove that retaliation occurred for a protected disclosure. Under the new NDA combined with the suitability rule, an agency can frame a removal as a suitability action (failure to follow internal rules) rather than a retaliation action. The legal analysis becomes harder for the employee.

Third, the chilling effect operates regardless of legal protection. Even employees who would prevail in a WPA case may decline to make the disclosure in the first place if the immediate consequence is removal proceedings. The NDA's broad scope creates uncertainty about whether any particular disclosure is "protected" until a court rules years later.

Garcetti v. Ceballos and Pickering Concerns

Two First Amendment precedents bear on the NDA's constitutionality. Pickering v. Board of Education (1968) establishes that public employees retain First Amendment protection for speech on matters of public concern when balanced against the government's interest in workplace efficiency. Garcetti v. Ceballos (2006) narrows that protection: speech made pursuant to official duties receives no First Amendment protection.

The NDA's broad scope creates a legal puzzle. Internal pre-decisional discussion is typically official-duty speech (Garcetti), so the First Amendment offers no protection. But the same employee may later speak about the same matter as a private citizen on a matter of public concern (Pickering applies, First Amendment may protect). The NDA does not distinguish between the two contexts. It restricts all post-employment speech about covered material indefinitely.

This is the constitutional vulnerability AFGE and NTEU are likely to raise in litigation if the NDA is finalized in its current form. The unions argue that an indefinite post-employment speech restriction on non-classified material exceeds the government's legitimate interest as an employer.

Practical Q&A: Can I Discuss This?

The NDA's scope is broad enough that ordinary federal employee conversations may be affected. Here is how common scenarios likely play out under the proposed rule:

Scenario	Covered?	Notes
Telling your spouse about a frustrating internal meeting	Probably not directly enforced	Family conversations are technically covered but historically not enforced
Telling your spouse the dollar amount of a not-yet-announced procurement	Yes, covered	Pre-decisional procurement is explicit in the scope
Discussing your department's reorganization plans with a former colleague	Yes, covered	Personnel matters are explicit in the scope
Mentioning to a friend that your agency is hiring	Not covered	Hiring is publicly disclosed
Tweeting that your agency is short-staffed	Likely covered	"Internal operations" arguably includes staffing levels
Talking to a journalist about waste you observed	Protected if disclosed to IG/OSC/Congress first; otherwise covered	Press disclosure carries WPA risk
Speaking at a CLE program about regulatory practice	Covered if it touches your duties	Even general professional speech could trigger
Posting on LinkedIn about industry trends	Depends on specificity	Generic trends fine; specific agency strategy covered
Filing an EEO complaint about discrimination	Not covered	EEO process is statutorily protected
Reporting suspected fraud to your agency's IG	Not covered	WPA-protected disclosure channel

The pattern: anything that names a specific, ongoing, non-public agency activity is covered. Anything publicly disclosed, abstract, or routed through a protected channel is not.

Penalties Under the NDA

The proposed form states that violations may result in "disciplinary action, removal, debarment, and civil and criminal penalties." The specifics are not enumerated in the Federal Register notice, but existing law provides the menu of potential consequences:

Administrative penalties (most likely outcome for routine violations):

• Letter of reprimand
• Suspension without pay (1-30 days typical)
• Removal under 5 USC 7513
• Debarment from federal service (1-3 years typical under 5 CFR 731.103)

Civil penalties:

• Tort liability if disclosure causes financial harm to the government
• Civil False Claims Act exposure if disclosure relates to false claims
• Inspector General Act referrals

Criminal penalties (rare for non-classified disclosures, but possible):

• 18 USC 641: theft of government property, including information. Felony if value exceeds $1,000. Penalty: up to 10 years imprisonment.
• 18 USC 1905: disclosure of confidential information by federal officers. Penalty: up to 1 year imprisonment and removal from office.
• Espionage Act applies only to classified material.

The Espionage Act is unlikely to apply to NDA violations involving non-classified information. The most realistic criminal exposure is 18 USC 641, which has been used historically against federal employees who leaked specific non-classified documents valued by their content. The "value" element is the bottleneck and the reason most NDA violations are charged administratively rather than criminally.

The Historical Context

The NDA proposal tracks a 40-year history of attempts to impose broad executive-branch speech restrictions on federal employees. Three precedents matter:

National Security Decision Directive 84 (1983). President Reagan issued NSDD-84 requiring federal employees with access to classified information to sign nondisclosure agreements. Congress pushed back through the FY1984 appropriations process, restricting the directive's application. The current SF-312 emerged from the NSDD-84 controversy.

2018 Trump White House NDAs. During the first Trump administration, White House officials were required to sign NDAs covering both classified and non-classified information related to their official duties. Multiple legal analyses (CNN, NYU Journal of Legislation and Public Policy) concluded the NDAs were unenforceable against career federal employees outside the White House. The 2026 OPM proposal extends the concept governmentwide and resolves the enforceability question by routing through the suitability rule.

Pentagon Hegseth NDA (February 2025). As described above, the early-2025 Pentagon internal NDA established the template that OPM is now extending across the federal government. FOIA-released documents from March 2026 confirm OPM working-group references to the Pentagon model.

How to Submit an Effective Comment by June 26

Public comments influence final rule language. OPM is required by the Administrative Procedure Act to respond to substantive comments in the final rule. The typical pattern: about 15-25% of substantive comments result in some textual change to a proposed rule.

Where to submit:

• regulations.gov, docket OPM-2026-0100 (preferred)
• Email: SuitEA@opm.gov with the docket number in the subject line

What makes a comment effective:

1. Name a specific provision. Reference the exact section or paragraph you are challenging. Vague critiques of "the whole rule" get less weight than targeted comments on specific scope language.

2. Explain the practical consequence. A federal employee who can describe how the rule would affect their day-to-day work provides information OPM staff cannot obtain from the rule text alone.

3. Cite legal authority. First Amendment precedents (Pickering, Garcetti), Whistleblower Protection Act sections, prior NDA case law. AFGE and NTEU have published model legal arguments.

4. Personal stories help. Describe a specific situation in your career where the proposed NDA would have created uncertainty about a legitimate disclosure or routine conversation.

5. Be timely. Submit by June 19 at the latest. OPM staff need time to log late-arriving submissions, and submissions after June 26 may be excluded from the formal record.

What NOT to do:

• Anonymous comments are accepted but carry less weight.
• Identical form-letter comments are aggregated as a single comment regardless of how many people send them.
• Personal attacks on OPM staff are ignored.

Calculate Your Options

If the NDA makes you reconsider federal employment, model the financial alternatives before deciding. A premature resignation forfeits annuity accruals, FEHB continuation, and TSP match.

• Severance Pay Calculator: Estimate severance under RIF or involuntary separation rules.
• FERS Retirement Calculator: See annuity options at MRA, age 60, and age 62 retirement dates.
• VERA/VSIP Decision Calculator: If your agency offers voluntary early retirement or a buyout, run the math.

Frequently Asked Questions

What is the OPM NDA proposal and when does it take effect?

On May 27, 2026, the Office of Personnel Management published Federal Register notice 2026-10471 proposing a governmentwide nondisclosure agreement for federal employees. The NDA covers "all non-public, confidential, or proprietary information, to include internal agency operations, personnel matters, procurement processes, or any sensitive, pre-decisional or deliberative material that is not currently publicly available." Public comments are due by June 26, 2026 at regulations.gov under docket OPM-2026-0100. Agencies could begin requiring the form once OPM finalizes it, likely in late summer or fall 2026.

Is this NDA the same as SF-312 for classified information?

No. SF-312 covers classified information only, an objectively defined category established by Executive Order 13526. The proposed OPM NDA covers a subjective, agency-defined category that potentially includes 60-80% of routine federal work product, including internal agency operations, personnel matters, procurement decisions, and any "pre-decisional or deliberative material." Both NDAs would operate in parallel. The new NDA does not replace SF-312; it adds a separate restriction on top.

Can I refuse to sign the NDA?

Technically yes, but in practice no. The June 2025 OPM Suitability and Fitness proposed rule (Federal Register 2025-12448) provides the enforcement mechanism: failure to sign a required agency form makes an employee "unsuitable" under 5 CFR Part 731. Unsuitability supports removal under existing personnel rules. So while the NDA is framed as something agencies will require, the suitability rule effectively makes signing it a condition of continued federal employment once an agency adopts the form.

What happens to whistleblower protection under this NDA?

The NDA contains the required Whistleblower Protection Act savings clause under 5 U.S.C. 2302(b)(13). Disclosures to Congress, Inspectors General, and the Office of Special Counsel remain legally protected. However, the broad pre-decisional and deliberative scope creates a chilling effect that legal experts (AFGE, NTEU, Freedom of the Press Foundation) warn will deter lawful disclosures in practice. Whistleblowers who disclose to the press about non-classified internal matters face a much harder legal analysis under the new NDA than under existing rules.

Does the NDA apply after I leave federal service?

Yes. Former federal employees are also bound by the NDA. Speaking to journalists about covered information after leaving the government requires written agency permission. There is no expiration date in the proposed form, so the post-employment restriction operates indefinitely. This is one of the most significant departures from current practice and a primary reason critics call the NDA constitutionally suspect under Garcetti v. Ceballos (2006) and Pickering v. Board of Education (1968).

What are the penalties for violating the NDA?

The proposed NDA states violations carry "disciplinary action, removal, debarment, and civil and criminal penalties." Specific criminal statutes are not cited in the notice. Existing law potentially applicable to NDA violations includes 18 USC 641 (theft of government property, including information) and the Espionage Act for classified material disclosures. Debarment under 5 CFR 731.103 could prevent reemployment by any federal agency for 1-3 years after a violation.

How do I submit a comment by June 26?

Submit comments at regulations.gov under docket OPM-2026-0100, or email SuitEA@opm.gov with the docket number in the subject line. Effective comments name a specific provision and explain why it should be changed, dropped, or kept. Personal stories help. Comments should arrive at least 7 days before the June 26 deadline since OPM staff need time to log late-arriving submissions. AFGE and NTEU have published model comment language that members can adapt.

Could the NDA be challenged in court if finalized?

Yes, and both AFGE and NTEU have indicated they will file constitutional challenges if OPM finalizes the rule in substantially its current form. The likely arguments rely on Pickering v. Board of Education (1968) for active employees and Garcetti v. Ceballos (2006) for the post-employment restriction, plus First Amendment overbreadth doctrine for the subjective scope of "pre-decisional or deliberative material." Litigation would take 1-3 years to reach a final ruling. During that time, the NDA would likely remain enforceable absent a preliminary injunction.

Related Resources

• Margolin v. NAIJ: SCOTUS CSRA Exhaustion Ruling: The May 26, 2026 Supreme Court ruling that closes the district-court escape valve for constitutional claims, directly relevant if you plan to challenge the NDA after it is finalized.
• Garland v. OPM Disability Ruling: Related April 2026 Federal Circuit precedent on federal employee evidence standards.
• VA Vigil Investigations and Federal Whistleblower Rights: How whistleblower protection actually works in practice under WPA.
• Discontinued Service Retirement Guide: If the NDA prompts you to consider involuntary separation, DSR may be an option.

Sources

• Federal Register 2026-10471: OPM NDA Notice
• OPM Press Release
• AFGE Statement on OPM NDA Rule
• GovExec Coverage of OPM NDA
• Federal News Network: Trump Administration Pushes Governmentwide NDA
• NPR Coverage
• NYU Journal of Legislation and Public Policy: NDA Constitutional Analysis
• 5 U.S.C. 2302: Whistleblower Protection Act
• Garcetti v. Ceballos, 547 U.S. 410 (2006)
• OPM Suitability and Fitness Proposed Rule FR 2025-12448
• Comment Docket OPM-2026-0100 at regulations.gov

This blog is not legal advice. Consult a federal employee attorney about your specific situation, especially before refusing to sign an agency-required form.