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A federal judge on Monday rejected a request from the Trump administration to cancel an evidentiary hearing set for later this week in a major case concerning the government’s efforts to shrink the federal workforce, refusing to lift his order that the acting head of the Office of Personnel Management testify.
Last month, US District Judge William Alsup ordered acting OPM director Charles Ezell to appear at the hearing this Thursday so he can be cross-examined by attorneys representing labor unions and others that are challenging the administration’s decision to fire thousands of probationary federal employees.
But on Monday, Justice Department attorneys representing the administration took the extraordinary step of asking the judge to cancel the hearing – which he previously said he would not do – and quash the subpoenas issued to Ezell and a slew of other officials for either depositions or courtroom testimony this week.
“The problem here is that Acting Director Ezell submitted a sworn declaration in support of defendants’ position, but now refuses to appear to be cross examined, or to be deposed (despite, it should be added, government counsel’s embrace of that very idea during the TRO hearing),” Alsup, who sits in the federal courthouse in San Francisco, wrote in a two-page order late Monday.
“The Court’s order that he appear or be deposed will not be vacated, nor will the hearing on March 13,” he continued. “If Ezell does not appear in violation of that order, then the Court will have to decide the sanction, including whether or not to strike or limit his sworn declaration.”
The Justice Department has already submitted a declaration from Ezell in the case, but the judge has stressed it would be unfair for it to remain in the case if the other side doesn’t have an opportunity to question him under oath.
The situation is the first effort the administration has made to formally try to block its officials from providing sworn testimony. And the case is an important one, testing the ability of the Trump administration to drive its policy for cutting the federal workforce through its central management agency. The judge in the case previously said it would be illegal for OPM to direct agencies to cut their number of federal civil servants with mass firings based on their performance.
The Justice Department had argued, among other things, that compelling Ezell to testify “would pose major separation-of-powers concerns, especially at this early stage of litigation,” and claimed he has “scant evidentiary value” concerning the central issue in the case: whether his agency ordered others to fire probationary employees en masse.
“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; nor do they warrant a full-blown evidentiary hearing on the existing record,” they wrote in court papers.
The DOJ attorneys told Alsup they would be willing to convert a temporary restraining order the judge issued last month to a preliminary injunction to “allow for a more orderly resolution of the claims and defenses presented in this litigation.”
Such a move would also allow the preliminary injunction to be appealed to the 9th Circuit Court of Appeals. Alsup’s temporary order last month required OPM to inform certain federal agencies that it had no authority to order the firings of probationary employees, meaning those who have been in their positions about a year or less.
Attorneys for the labor groups quickly pushed back on the administration’s Monday request after it was made, writing in their own filing that the government had manufactured a crisis over Ezell’s potential testimony days after Alsup first said he would need to appear at the hearing.
“The Government cannot rely on its own delays to argue that it lacks time to prepare for this hearing,” they wrote. “Nor should it be allowed to relitigate whether the hearing should go forward at all, where the Court made clear that this hearing is necessary to settle the fact dispute that the Government itself injected into this case.”
CNN’s Katelyn Polantz contributed to this report.
