OPM chief rejects court order to testify on probationary firings as case expands governmentwide

Updated March 12 at 1:35 p.m.

A federal judge has ordered the acting head of the Office of Personnel Management to testify at a court hearing examining the legality of the Trump administration’s mass firings of federal employees, but the key workforce official has informed the court he will ignore the order. 

Acting OPM Director Charles Ezell was slated to appear in a U.S. District Court in San Francisco on Thursday after Judge William Alsup ruled on Monday that he must do so, but he will now face a to-be-determined sanction. The Trump administration had sought to block his testimony, saying it would raise constitutional concerns, but the judge rejected the argument. Ezell has already submitted written testimony, Alsup said, and now must be subject to cross examination. 

After initial publication of this story, the Trump administration Tuesday evening informed the court Ezell would not testify and withdrew his written declaration suggesting he did not order the probationary firings across government. It called live testimony "not necessary" for Ezell or any other official. The plaintiffs in the case are seeking testimony from human resources personnel throughout government. 

Alsup has already issued a preliminary ruling in favor of the American Federation of Government Employees and other groups that brought the lawsuit, finding OPM illegally ordered the firings of employees in their probationary periods—mostly those hired in the last one or two years—and demanding the agency rescind those directives. Only a handful of agencies were impacted by the temporary restraining order and implementation has varied. The Defense Department was a named defendant in the case but has continued to fire employees, while other named agencies have not yet recalled any staff. 

The judge this week has also allowed AFGE to amend its complaint to significantly expand the breadth of the case. It now includes all cabinet departments and eight large agencies, leaving the door open to sweeping judicial action that could impact vast swaths of the federal government. Roughly 30,000 employees have been fired to date. 

OPM did not respond to an inquiry into whether Ezell will show up for his court-mandated testimony. Should he decline to appear, Alsup said, “the court will have to decide the sanction.” 

Ezell previously stated in a written declaration that he never ordered agencies to fire employees. Alsup ruled that contradicted significant evidence, including an email he sent to human resources leaders directing them to separate non-mission critical probationary employees within three days. 

OPM subsequently edited guidance it issued on Jan. 20, clarifying it never required agencies to take any specific actions regarding probationary employees. Since Alsup issued his restraining order, however, at least the departments of Defense, Commerce and Homeland Security have proceeded with the terminations of probationary employees. 

Other agencies, such as the Labor Department and National Science Foundation, have recalled their probationary employees. The Merit Systems Protection Board has ordered the Agriculture Department to recall its 6,000 fired probationary employees, which followed a finding from the Office of Special Counsel that those terminations were unlawful. Hampton Dellinger, the head of OSC who issued that finding, has since been removed from his position by President Trump. 

USDA is facing a Wednesday deadline to bring all of its employees back on the rolls. The employees will be recalled and placed on paid administrative leave by Wednesday, the department said, and they will receive back pay to the date of their termination. Their firings are only set to be paused for 45 days, though OSC is expected to push for permanent reinstatement.

“The department will work quickly to develop a phased plan for return-to-duty, and while those plans materialize, all probationary employees will be paid,” USDA said in a statement.