Charles Ezell, acting director of the Office of Personnel Management (OPM), refused to testify before a Federal judge in a case determining OPM’s involvement in the firing of Federal probationary employees.
In a March 11 notice sent to U.S. District Judge William Alsup, lawyers for the Federal government declined to produce Ezell for live testimony in the San Francisco court on March 13 and withdrew his previous testimony from the record.
Alsup originally ordered Ezell to be produced for live testimony or deposition in the March 13 hearing, at risk of facing a sanction that the court has yet to determine now that Ezell refuses to appear.
Lawyers for the government attest that Ezell does not need to appear before the court because his former testimony was withdrawn. The lawyers also said live testimony is not necessary as the case brought against OPM is based on violations of the Administrative Procedure Act (APA).
The lawyers claims evidence must be limited to the administrative record in a case based on violations of the APA, which would disqualify Ezell’s live testimony.
“While courts occasionally may look outside of this record in an APA action, they may only do so with limited exceptions,” the notice reads.
The notice also argues that OPM did not direct agencies to undertake mass firings of probationary employees. Representation cited OPM’s revised guidance on March 4 that said it did not direct agencies to terminate probationary employees.
“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,” the notice reads.
The intention of OPM’s directives has been central to this case as the Federal government insists that OPM did not direct agencies to fire its employees but rather engaged in a review of employees at certain agencies.
A coalition of unions and nonprofits first brought legal action against OPM on Feb. 19 over OPM’s involvement in the firing of probationary employees at several government agencies. Since then, numerous other unions and state governments have joined the suit against the Federal government’s human resources agency.
The unions argue that OPM’s initial directives led to firings at several agencies, including the Department of Defense.
Judge Alsup already ordered a preliminary ruling in favor of the coalition, finding OPM’s actions “unlawful” in its involvement with probationary employee firings. At the time of publishing this story, Alsup had yet to comment on Ezell refusing to testify.
