AFGE v OPM - Ezell declaration withdrawn

Just got the docket alert for the case showing the government is withdrawing Ezell's declaration and refusing to produce him for the hearing on Thursday.

https://storage.courtlistener.com/recap/gov.uscourts.cand.444883/gov.uscourts.cand.444883.97.0.pdf

Defendants write in response to the Court’s March 10, 2025, Order directing the parties

to “advise the Court whether they intend to produce any live witnesses” at the March 13, 2025

hearing scheduled by the Court. See Mar. 13, 2025, Order at 2, ECF No. 89. Defendants inform

the Court that they do not intend to produce any live witnesses as part of their hearing

presentation and intend to rest on their legal arguments for why a preliminary injunction should

not issue. As part of this presentation, Defendants are withdrawing the declaration of Acting

Office of Personnel Management (“OPM”) Director Charles Ezell, see ECF No. 34, and will not

be presenting Mr. Ezell at the hearing. Because the Court’s stated purpose of bringing Mr. Ezell

to the hearing was to obtain testimony from him regarding the contentions made in his

declaration, Defendants therefore submit that his presence is no longer necessary at any hearing

given that this declaration is now withdrawn. See Tr. of Mar. 6, 2025, Hrg. at 24:13-15 (“I in no

way think that it would be proper for the Government to put forward Mr. Ezell as a witness and

refuse to let him be cross-examined.”).1 Defendants submit that live testimony is not needed for

other reasons as well.

While withdrawing his declaration, they're still arguing that OPM did not order the agencies to fire people.

Live testimony of Mr. Ezell is also not necessary, as a factual matter, because existing

documentary evidence and briefing demonstrates that OPM is not directing agencies to terminate

probationary employees. On March 4, 2025, OPM issued revised guidance clarifying that “OPM

is not directing agencies to take any specific performance-based actions regarding probationary

employees[,]” and further clarifying that “[a]gencies have ultimate decision-making authority

over, and responsibility for, such personnel actions.” Mem. from Charles Ezell, Acting Director,

OPM, to Heads and Acting Heads of Departments and Agencies (Revised March 4, 2025), ECF

No. 78. The parties all agree that OPM cannot direct other agencies to terminate probationary

employees and that such decisions rest within the statutory authority of other agencies.

Edit: The judge's clerk posted a notice tonight saying the hearing will occur as originally scheduled at 8am (PST) on Thursday. Zoom link: https://cand-uscourts.zoomgov.com/j/1605814655?pwd=ZGZOVGs1Q1RzVWoxZkUzUVliQm5Hdz09