A federal judge has denied the Trump administration’s request 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 may be a lost cause due to government efforts to “stonewall” him.
“A stay would further injure plaintiffs because reinstatement becomes more difficult with every passing day,” wrote U.S. District Judge William Alsup, a Bill Clinton appointee, in denying Trump’s Justice Department’s motion to stay on Saturday.
“Terminated probationers are moving on with their lives, as they must,” he said. “There will be fewer options for redressing the harms suffered by the organizational plaintiffs tomorrow than there are now.
And, the government has completely failed to argue that there is any other way to avoid the irreparable harm caused by the unlawful terminations than to reinstate the employees.”
On Thursday, Alsup slammed the Trump administration for mass firings of probationary employees, calling it a “sad day” when the government would terminate “good” workers allegedly based on performance knowing “good and well that’s a lie,” as he ordered agencies to “immediately” rehire those who had been fired.
DOJ lawyers filed a motion to stay Alsup’s order on Friday, claiming that the plaintiffs’ claims of injury are “far too speculative to support standing to maintain this lawsuit,” among other criticisms of the arguments made Thursday by the five labor unions and five nonprofit organizations suing the Office of Personnel and Management and acting OPM director Charles Ezell in California.
Ezell, who was appointed by Trump after taking office in January, is being sued for firing the aforementioned federal employees while they were still on probation.
Alsup ordered Ezell to appear in court on Thursday to testify after DOJ lawyers filed a declaration from him in the case. The plaintiffs stated in court filings earlier this month that they believed the DOJ’s Civil Division would not allow Ezell to testify, which is precisely what happened.
Last Tuesday, the Trump administration informed Alsup that Ezell planned to defy his order, and the DOJ was withdrawing its declaration from the case. While issuing the TRO, the judge repeatedly referred to it as an attempt to “stonewall” him.
“That should not have been done in our country,” Alsup said of the mass firings. As previously reported by Law&Crime, Alsup issued a restraining order against the Trump administration in late February, calling the terminations “illegal.”
“It was a sham to avoid statutory requirements,” Alsup said 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 gathered and attached declarations provided by officials from the Departments of Agriculture, Defense, Energy, the Interior, the Treasury, and Veterans Affairs, claiming 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
“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,” according to the Justice Department.
Alsup responded by noting that only two of the six relief defendants (DOD and DOI) claim to have conducted performance reviews on their probationary employees prior to termination.
He also found it interesting that the DOJ claimed it didn’t have enough time to bring Ezell and others to testify, but was able to obtain declarations from multiple agencies “in the span of a single day,” according to Alsup’s decision.
“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 continued.
“Defendants also claimed that the rapid pace of litigation precluded the production of anything other than the Ezell declaration. Again, it is surprising that defendants were able to obtain a half-dozen declarations from relief defendants in the course of a single day.
Neither of these declarations, nor the facts contained therein, were made available to the Court during its consideration of the current TRO or PI. This is a last-ditch attempt to litigate those orders on a new, untested record.”
Alsup blasted Ezell’s refusal to testify as a “violation of this court’s order” and claimed the DOJ was attempting to do the same 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 told the jury. “It was surprising that defendants submitted Noah Peters’ declaration… Defense counsel told the Court that Peters took part in the calls at issue, but Peters refused to swear to it.
Peters did not claim personal knowledge of anything in his declaration. Persuaded by defense counsel’s argument, the undersigned gave the Peters Declaration little evidentiary value.”
Alsup noted that the Trump administration submitted “a single declaration” from Ezell in opposition to the plaintiffs’ motion for a TRO, but that the DOJ “chose to withdraw the Ezell declaration to avoid subjecting 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 Department of Justice said Friday that if Alsup did not grant a stay “immediately,” it would seek relief from the United States 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,” according to DOJ attorneys.
Ezell and the OPM have maintained that they simply directed agencies to review their probationary workers and decide whether to continue their employment based on need, rather than ordering the firings themselves.
Alsup has continued to request that the DOJ call Ezell or other officials to testify to help prove his claims.
“The meaning of the order is clear,” the judge said Saturday. “OPM cannot direct another agency to fire an employee simply by framing the directive as guidance.
The undersigned has not and cannot limit OPM’s lawful performance of statutorily authorized functions, including issuing guidance that goes no further.”
