OPM has maintained that it merely asked agencies in a Jan 20 memo to identify probationary workers and decide which ones were not “mission critical” and could be fired, and did not order them to terminate anyone.
The agency on Mar 4 revised that memo, adding that it was not directing agencies to take any specific actions with respect to probationary employees.
OPM has pointed to the updated memo and to press releases by agencies as proof that it had no control over agencies’ decisions.
Alsup on Thursday told the US Department of Justice lawyer representing OPM, Kelsey Helland, that he did not believe that was true, and scolded the government for not presenting OPM’s acting director, Charles Ezell, to testify at the hearing.
“I’ve been practicing or serving in this court for over 50 years and I know how we get at the truth, and you’re not helping me get at the truth. You’re giving me press releases, sham documents,” Alsup said.
Helland said it was common for presidential administrations to prevent high-ranking agency officials from testifying in court, and that the information provided by OPM in court filings was enough to prove that it never ordered agencies to terminate workers.
Along with the lawsuit in California, several other challenges to the mass firings have been filed, including cases by 20 Democrat-led states and a proposed class action by a group of fired workers.
The Merit Systems Protection Board, which reviews federal employees’ appeals when they are fired, earlier this month ordered the Agriculture Department to reinstate nearly 6,000 probationary workers at least temporarily.
