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President Donald Trump speaks with reporters in the Oval Office at the White House, Tuesday, Feb. 11, 2025, in Washington. (AP Photo/Alex Brandon)
The Trump administration is attempting to stop an evidentiary hearing that’s scheduled to happen on Thursday in its Office of Personnel and Management mass firing case and is now asking the judge to rescind “any order” requiring OPM Director Charles Ezell to testify, just days after the Justice Department’s Civil Division claimed it would “not produce” the high-ranking agency leader in court.
Ezell, who was appointed by Trump to be acting director on his first day in office, is accused of unlawfully firing thousands of government workers still in the probationary period of their employment and was ordered by a federal judge in California to appear in court Thursday to testify. Attorneys for the DOJ’s Civil Division allegedly said last week that they would not let Ezell take the stand, so the plaintiffs suing the OPM — five labor unions and five nonprofit organizations — moved to get a status conference scheduled Thursday, March 6, to argue the matter. At that hearing, U.S. District Judge William Alsup ordered the DOJ to provide a statement to the court that it “intended to produce Mr. Ezell as well as four other individuals from whom plaintiffs sought testimony” at the upcoming evidentiary hearing by Monday, along with a motion for relief from the court’s original order that required Ezell to appear — to which Trump’s DOJ complied, according to court filings.
“At bottom, the interests of justice, party resources, and judicial economy do not warrant the creation of an inter-branch constitutional controversy by compelling the acting head of an executive agency to testify in this posture,” argued civil division lawyers in their Monday motion to vacate the evidentiary hearing and preclude Ezell’s testimony. “Nor do they warrant a full-blown evidentiary hearing on the existing record. The Court should instead vacate the evidentiary hearing, rescind any order requiring the Acting Director of OPM to testify, protect the government from overbroad and unduly burdensome deposition practice, and convert its TRO into a preliminary injunction to allow the parties to move in orderly, expedited fashion to the next stage of this litigation.”
The mass firings case was brought forward last month by the labor unions and nonprofit organizations, which filed a 34-page complaint accusing Ezell of ordering federal agencies across the country to terminate thousands of employees “by sending them standardized notices of termination, drafted by OPM, that falsely state that the terminations are for performance reasons.”
Plaintiffs argue that Congress, not OPM, is what controls federal employment and that the legislature had already determined that each agency is responsible for managing and terminating employees.
“OPM lacks the constitutional, statutory, or regulatory authority to order federal agencies to terminate employees in this fashion that Congress has authorized those agencies to hire and manage, and certainly has no authority to require agencies to perpetrate a massive fraud on the federal workforce by lying about federal workers’ ‘performance,’ to detriment of those workers, their families, and all those in the public and private sectors who rely upon those workers for important services,” the complaint states.
The complaint asked for a temporary restraining order to be implemented, halting any additional firings at OPM’s behest, which Alsup, a Bill Clinton appointee, granted.
On Monday, DOJ lawyers claimed it was “good cause” that ultimately supports their request to vacate the evidentiary hearing and stop Ezell from testifying.
“OPM has already substantially complied with the Court’s TRO by promptly updating its guidance to agencies, thus obviating the necessity (or at minimum reducing the value) of any evidentiary hearing, and thereby also eliminating the need for the discovery Plaintiffs seek in connection with that hearing,” the DOJ said in its motion. “At the same time, Defendants’ willingness to stipulate to conversion of the TRO into a preliminary injunction further eliminates any need for or benefit from such a hearing — and, at minimum, eliminates any need to proceed on a highly expedited timetable.”
In late February, the Trump administration claimed at a hearing that OPM did not directly order other agencies to fire the probationary employees. Instead, OPM requested that agencies review their probationary workers and make determinations on their fitness to continue their employment. Ezell also filed a sworn declaration stating that OPM “did not direct agencies to terminate any particular probationary employees” and “did not create a ‘mass termination plan.””
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The DOJ insisted Monday that it was trying to do the right thing, but needed more time — something the department feels it deserves “at this early litigation stage,” per its motion.
“The Court’s order that OPM produce its Acting Director for in-person testimony at a hearing scheduled for a date barely more than two weeks after its oral TRO raises fundamental constitutional concerns,” the DOJ said. “Especially at this early litigation stage, where evidentiary proceedings are disfavored under Ninth Circuit precedent. And Plaintiffs’ expressed intent to expand the scope of any hearing to as many as twelve government witnesses (through either in-person testimony or the introduction of recorded or transcribed evidentiary depositions they seek to schedule and conduct in a single day in advance of the hearing) would render any proceedings fundamentally unmanageable.”
According to civil division lawyers, “the same is true” for the plaintiffs’ latest efforts to “vastly broaden their claims” by adding “20-plus” federal agencies as defendants in recent weeks, which they say “threatens to expand the scope of any hearing just as substantially.” The DOJ asked the court to consider continuing “any hearing date” until such time as evidentiary hearings become necessary.
“At a minimum, after the resolution of Plaintiffs’ motion for leave to amend their complaint for a second time, and after Defendants have had a meaningful opportunity to submit dispositive-motion briefing on the merits of Plaintiffs’ claims,” the department’s motion said. “Defendants would further request that, if the Court determines that an evidentiary hearing is necessary after the completion of dispositive-motion briefing, Defendants be permitted to identify appropriate declarants or other persons with relevant knowledge and produce them for limited, orderly depositions on a reasonable schedule — with enough time to seek appellate intervention, if appropriate — rather than at an expedited in-person hearing.”
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