Judge Alsup is *not* happy with the government attorneys in AFGE v. OPM (preliminary injunction hearing). Gov't withdrew Ezell declaration after judge ordered him to appear for cross examination. Judge to DOJ lawyer: "You will not bring the people in here to be cross-examined. You're afraid to do so because you know that would reveal the truth." More: "I tend to doubt that you're telling me the truth, whenever we hear all the evidence eventually" "Come on, that's a sham" (about withdrawing the Ezell declaration) "you're giving me press releases, sham documents" Now Judge Alsup is talking about how Trump is trying to destroy Office of Special Counsel and MSPB, raising questions about whether he correctly ruled he did not have jurisdiction over unions' claims in this case. Judge: I got misled on jurisdiction because I relied on you" "I got misled by the USG on the efficacy of the MSPB" Judge is now talking about how Harris of MSPB sued and won in DDC but Trump is still trying to get rid of it. "We're going to have to look at that again, maybe we will have subject matter jurisdiction for the unions, if the process... has been decimated" Re: the govt's withdrawal of Ezell declaration, DOJ is arguing (more or less) that Ezell was on telephone calls during which firings were discussed. Judge asks him if Noah Peters, whose declaration DOJ is trying to substitute, was on the calls. (They're not getting into rn but Peters is a DOGE guy acting as an "advisor" at OPM. DOGE is not a defendant here) DOJ wants to develop administrative record. Judge: "I want you, if you're going to give me an administrative record, an honest one, a complete one, not one that has been sanitized. That is my advice to the government." Plaintiffs are entitled to get a ruling on the record he has, Judge says. Now DOJ lawyer is arguing Ezell should not be forced to give testimony as xecutive branch prerogative. "But you chose to submit his declaration," says the Judge. "You can't just say here's the declaration, you have to accept it without question." DOJ lawyer is trying to argue it was just for the TRO Plaintiffs asked for rescission of firings. Govt argues that's not appropriate bc MSPB and FLRA provide adequate remedy, and that each agency that fired people should do its own review to decide who to hire back. Plaintiffs argue the firings were not done at agencies' direction, and were not legal. Plaintiffs point out that EZELL said in a memo that probationaries should be fired because they can't appeal to MSPB. Govt tried to argue that agency press releases showed they fired people without direction from OPM. Plaintiffs' counsel notes that at least one press release (VA) specifically stated the firings were part of a "government-wide" effort. Alsup is asking plaintiffs' counsel about reduction in force statute. She says, yes, it's there, but OPM cannot order them. "If it's done right, there can be a reduction in force in an agency," he says, and she agrees. She points out the steps and requirements. (Note that Maryland v. Department of Agriculture, D.Md. claims that firings were illegal because they did not follow statutory RIF requirements) Plaintiffs' counsel reemphasizes that not all fired probationaries were young folks just out of college, many might have been new to an agency or position. Judge says he had not previously appreciated that fact. (Good that she reemphasized!) Back to employees' relief at the boards. Plaintiffs' counsel says that following Dellinger's firing the VA Secretary is now ALSO the acting Special Counsel. What??? DOJ lawyer trying to claim the agency press releases about firings show they were just following admin priorities, not that they were following directive from OPM. Judge is quite skeptical. Also why don't you want anyone here to testify and be cross examined. Judge: The court is going to grant some additional relief by way of preliminary injunction. Judge Alsup wants everyone to be completely aware that an agency *can* do a RIF if it complies with statutory requirements. "This case is not about that. What this case is about is really an attempt to do a RIF, but force it through the OPM, to have the OPM direct agencies... as an easy way" "it is a sad, sad day when our government would fire some good employee and say it's for poor performance, when they know good and well that's a lie," says Judge Alsup, after reading evidence about a fired employee "that should not have been done in our country. That was a sham, in order to avoid statutory requirements," says the judge, adding that the fired employee can't get UI, and making it harder for the fired person to get a job Judge Alsup says it is illustrative of the "manipulation" by OPM to "orchestrate" the "government-wide" firings. (Deleted last post because my auto-correct changed the judge's name to Asleep) He finds that OPM directed the agencies to fire probationary employees; "the court rejects the government's attempt to use these press releases" about the firings to say they acted without direction from OPM. Relief: TRO extended. In addition, VA "shall immediately offer reinstatement to any and all probationary employees terminated Feb 13-14;" he finds these firings were unlawful because OPM/Ezell had no authority; VA shall cease all use of the template provided by OPM/Ezell ~February 13-14 "this order further prohibits defendants [OPM/Ezell] from giving guidance" about terminations-- these decisions must be made by agencies themselves and in accordance with statutes governing civil service and RIFs "The same relief is extended... to Dept of Ag, Dept of Defense, Dept of Energy, Interior, Treasury" So: VA, Ag, Defense, Energy, Interior Treasury (for now) "This is the order from the bench," Alsup says, "effective immediately." Now Judge Alsup says plaintiffs can depose Noah Peters in Washington. And other discovery is now open. Judge says he's going to invite briefing on the channeling argument. He notes OPM itself said probationary employees had no right to appeal to MSPB, and then (paraphrasing here) misled them about their appeal rights. To the extent that plaintiff unions were trying to vindicate rights of members, "I might have made an error." He says he relied on government's representations that the MSPB was a remedy. He gives the parties to end of next week to brief this. Whether or not unions have standings, based on fact that "channel" (i.e., MSPB/FLRA) has been destroyed Judge: "I'm ordering the government to make this Noah available soon, within the next two weeks." He says he's tired of the government "stonewall" he wants someone under oath. (Peters will now be known as "this Noah") He says plaintiffs counsel should go to DC and take a two hour depo of Peters. Plaintiffs' counsel asks for three hours to depose Peters because he's a lawyer. Judge grants. Judge wants to make clear DOJ lawyer hasn't done anything "dishonorable," you're doing "the best you can with the case you've got." And we're done. Thanks for tuning in.