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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)
A federal judge has denied a request by the Trump administration for a stay on an order he issued last week — declaring the president’s firing of tens of thousands of probationary employees over the past two months as “unlawful” and choosing to reinstate the workers — in what he now fears could be a lost cause due to efforts by the government to “stonewall” him.
“A stay would further injure plaintiffs because reinstatement becomes more difficult with every passing day,” U.S. District Judge William Alsup, a Bill Clinton appointee, wrote on Saturday in an order denying the motion to stay from Trump’s Justice Department. “Terminated probationers are moving on with their lives, as they must,” Alsup said. “Fewer will be available to redress the harms suffered by the organizational plaintiffs tomorrow than there are today. And, the government has wholly failed to argue there is any other way to avoid the irreparable injuries flowing from the unlawful terminations except to reinstate the employees.”
On Thursday, Alsup tore into the Trump administration for its mass firings of probationary employees — calling it a “sad day” when the government would terminate “good” workers supposedly on the basis of performance knowing “good and well that’s a lie,” the judge said as he ordered agencies to “immediately” rehire those who have been booted.
DOJ lawyers filed their motion to stay Alsup’s order on Friday, saying the claims of injury by the plaintiffs are “far too speculative to support standing to maintain this lawsuit,” among other complaints about the arguments made Thursday by the five labor unions and five nonprofit organizations suing the the Office of Personnel and Management and acting OPM director Charles Ezell in California.
Ezell, who was appointed by Trump after he took office in January, is being sued for firing the aforementioned federal workers while they were still in the probationary period of their employment. Alsup had ordered Ezell to appear in court Thursday to testify after DOJ lawyers filed a declaration from him in the case. The plaintiffs said in court filings earlier this month that they believed DOJ’s Civil Division was not going to let Ezell take the stand, which is exactly what happened.
The Trump administration informed Alsup last Tuesday that Ezell intended to defy his order and the DOJ was withdrawing his declaration from the case. The judge repeatedly called it an attempt to “stonewall” him while handing down his TRO ruling.
“That should not have been done in our country,” Alsup said about the mass firings. As Law&Crime previously reported, Alsup issued a restraining order in late February against the Trump administration over the terminations, calling them “illegal.”
“It was a sham in order to try to avoid statutory requirements,” Alsup continued Thursday. “The reason that OPM wanted to put this based on performance was at least in part, in my judgment, a gimmick to avoid the Reductions in Force Act, because the law always allows you to fire somebody for performance.”
For their motion to stay on Friday, DOJ lawyers rounded up and attached declarations provided by officials from the Departments of Agriculture, Defense, Energy, the Interior, the Treasury, and Veterans Affairs, which they claimed exercised the belief that Alsup’s order “constitutes an extraordinary intrusion into the authority of the Executive Branch and its agencies by: requiring six agencies to reinstate previously terminated probationary employees; and precluding the Office of Personnel Management from giving further guidance to agencies on personnel matters,” according to the motion.
“As those declarations reflect, agencies will face tremendous administrative burdens, personnel uncertainty, and interference with their internal functions as a result of complying with the Court’s preliminary injunction,” the DOJ said.
Alsup responded by noting the fact that only two of the six relief defendants (DOD and DOI) claim performance reviews were conducted of their probationary employees prior to their termination. He also found it interesting that the DOJ claimed it didn’t have enough time to produce Ezell and others for testimony, but were able to get declarations from multiple agencies “in the span of a single day,” per Alsup’s ruling.
“Defendants refused to make any further effort to get at the truth, arguing that the only way forward was to wait on them to produce their administrative record, and ‘for gaps in that record to be litigated, to be supplemented by oral testimony, if necessary,”” Alsup said. “Defendants otherwise complained that the rapid pace of litigation prohibited the production of anything more than the Ezell declaration. It is again surprising, then, that defendants managed (in the span of a single day) to muster a half-dozen declarations from relief defendants. None of these declarations, or the facts therein, were made available to the Court during its consideration of the TRO or PI now in place. This is a last-ditch attempt to relitigate those orders on a new, untested record.”
Alsup blasted Ezell’s failure to testify as a “violation of this court’s order” and said the DOJ was trying to do the same thing with another official, OPM senior advisor Noah Peters.
“The undersigned did not impose sanctions at the time, as it appeared defendants had righted a wrong they would not repeat,” Alsup said. “It was a surprise, then, that defendants submitted the declaration of Noah Peters … Defense counsel represented to the Court that Peters participated in the calls at issue, but Peters declined to swear to it. Indeed, Peters did not claim personal knowledge as to anything in his declaration. Persuaded by defense counsel’s argument, the undersigned afforded the Peters Declaration scant evidentiary value.”
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Alsup noted how the Trump administration submitted “a single declaration” from Ezell in opposition to plaintiffs’ motion for a TRO but the DOJ “chose to withdraw the Ezell declaration to avoid submitting its declarant to examination.” DOJ lawyers claimed they “understood coming out of the TRO hearing” that Alsup “wanted to know what was actually communicated” during phone calls between OPM and the relief defendant agencies.
The DOJ said Friday that if a stay was not “immediately granted” by Alsup it would seek relief from the U.S. Court of Appeals for the Ninth Circuit.
“Plaintiffs lack standing to pursue many of their claims because their asserted harms are far too speculative, and they cannot seek injunctive relief on behalf of third-party federal employees who are not before this Court,” argued DOJ lawyers.
Ezell and OPM have maintained that they simply told agencies to review their probationary workers and make determinations about whether to continue their employment based on need and did not order the firings themselves. Alsup has continued to ask the DOJ to put Ezell or other officials forward for testimony to help prove it.
“The meaning of the order is plain,” the judge concluded Saturday. “OPM cannot direct another agency to fire an employee simply by dressing up the directive as guidance. The undersigned has not and cannot circumscribe OPM’s lawful performance of statutorily authorized functions, including issuing guidance that goes no further.”
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