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Judge temporarily blocks Trump’s mass firings at federal agencies: Judge says office of personnel management lacks power to order firings, including those of probationary employees
by Guardian staff and agencies
Thu 27 Feb 2025 18.38 EST
https://www.theguardian.com/us-news/202 ... mp-firings

A federal judge in California has temporarily blocked the Trump administration from ordering the US defense department and other agencies to carry out the mass firings of some employees.

The US district judge William Alsup said in San Francisco on Thursday that the US office of personnel management (OPM) lacked the power to order federal agencies to fire any workers, including probationary employees who typically have less than a year of experience.

Alsup ordered the OPM, the human resources department for federal agencies, to rescind a 20 January and a 14 February email directing agencies to identify probationary employees who should be fired.

Alsup said he could not order the defense department itself, which is expected to fire 5,400 probationary employees on Friday, and other agencies not to terminate workers because they are not defendants in the lawsuit brought by several unions and nonprofit groups.

But he suggested that the mass firings of federal workers that began two weeks ago would cause widespread harm, including cuts to national parks, scientific research, and services for veterans.

“Probationary employees are the lifeblood of our government. They come in at a low level and work their way up. That’s how we renew ourselves,” said Alsup, a Bill Clinton appointee.

Alsup handed down the order in a case brought by labor unions and nonprofits filed last week.

The complaint filed by five labor unions and five nonprofit organizations is among multiple lawsuits pushing back on the administration’s efforts to vastly shrink the federal workforce.

Thousands of probationary employees have already been fired. Just on Thursday, hundreds of workers at the National Oceanic and Atmospheric Administration (Noaa), the US’s pre-eminent climate research agency, learned they had lost their jobs.

The plaintiffs say the OPM had no authority to terminate the jobs of probationary workers who generally have less than a year on the job. They also say the firings were predicated on a lie of poor performance by the workers.

The Trump administration has maintained that the memo and email from the OPM merely asked agencies to review their probationary workforces and decide who could potentially be terminated, and did not require them to do anything.

“An order is not usually phrased as a request,” Kelsey Helland of the US Department of Justice told Alsup during the hearing.

But the judge said it was unlikely that virtually every federal agency independently decided to decimate its staff.

“How could that all happen with each agency deciding on its own to do something so aberrational? I don’t believe it,” Alsup said.

There are an estimated 200,000 probationary workers – generally employees who have less than a year on the job – across federal agencies. About 15,000 are employed in California, providing services ranging from fire prevention to veterans’ care, the complaint says.

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https://www.courtlistener.com/docket/69655364/american-federation-of-government-employees-afl-cio-v-united-states/

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO; AMERICAN FEDERATION OF STATE COUNTY AND MUNICIPAL EMPLOYEES, AFLCIO; AFGE LOCAL 1216; UNITED NURSES ASSOCIATIONS OF CALIFORNIA/UNION OF HEALTH CARE PROFESSIONALS, AFSCME, AFL-CIO; AFGE LOCAL 2110; MAIN STREET ALLIANCE; COALITION TO PROTECT AMERICA’S NATIONAL PARKS; WESTERN WATERSHEDS PROJECT; VOTE VETS ACTION FUND INC.; and COMMON DEFENSE CIVIC ENGAGEMENT,

Plaintiffs,

v.

UNITED STATES OFFICE OF PERSONNEL MANAGEMENT and CHARLES EZELL, in his official capacity as Acting Director of the U.S. Office of Personnel Management, Defendants. Case No. 3:25-cv-01780-WHA [William Haskell Alsup]

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Docket Entries

41. Feb 27, 2025. Minute Entry for proceedings held before Judge William Alsup: Motion Hearing re: 18 Motion for TRO held on 2/27/2025. Parties stated appearances and proffered argument. Court ruled as stated on the record. Written Memorandum Opinion to issue. Government is to produce expedited discovery on 3/4/2025 by 12:00pm noon (pst). Evidentiary Hearing set for 3/13/2025 08:00 AM in San Francisco, Courtroom 12, 19th Floor before Judge William Alsup. Total Time in Court: 1:32 - 3:13 = 1 Hour; 41 Minutes. Court Reporter: Irene Rodriguez. Plaintiff Attorneys: Danielle Leonard, Stacey Leyton, Eileen Goldsmith, Scott Kronland, James Baltzer, Robin Tholin, Rushad Sanghvi. Defendant Attorney: Kelsey Helland. (This is a text-only entry generated by the court. There is no document associated with this entry.) (afm, COURT STAFF) (Date Filed: 2/27/2025) (Entered: 02/27/2025)

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Part 1 of 2

https://ia800109.us.archive.org/34/item ... 3.17.0.pdf

James Baltzer (SBN 332232)
[email protected]
[email protected]
Attorneys for Plaintiffs
[Additional Counsel on signature page]

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO; AMERICAN FEDERATION OF STATE COUNTY AND MUNICIPAL EMPLOYEES, AFLCIO; AFGE LOCAL 1216; UNITED NURSES ASSOCIATIONS OF CALIFORNIA/UNION OF HEALTH CARE PROFESSIONALS, AFSCME, AFL-CIO; AFGE LOCAL 2110; MAIN STREET ALLIANCE; COALITION TO PROTECT AMERICA’S NATIONAL PARKS; WESTERN WATERSHEDS PROJECT; VOTE VETS ACTION FUND INC.; and COMMON DEFENSE CIVIC ENGAGEMENT, Plaintiffs,

v.

UNITED STATES OFFICE OF PERSONNEL MANAGEMENT and CHARLES EZELL, in his official capacity as Acting Director of the U.S. Office of Personnel Management,

Defendants.

Case No. 3:25-cv-01780-WHA [William Haskell Alsup]

Highlights:

“Plaintiffs”), file this complaint seeking to enjoin the terminations of tens of thousands of federal employees in contravention of federal constitutional and statutory law, against Defendants the United States Office of Personnel Management (“OPM”) and Acting OPM Director Charles Ezell…

On February 13, 2025, Defendant OPM and its newly appointed Acting Director, Defendant Charles Ezell, ordered federal agencies across the country to terminate tens of thousands of federal employees by sending them standardized notices of termination, drafted by OPM, that falsely state that the terminations are for performance reasons….

Probationary employees may include experienced federal employees who have recently become employed in a new position or a new agency....

OPM’s directive…on pretextual grounds, seeks to further the newly elected Presidential Administration’s policy goals…But Congress, not OPM, controls and authorizes federal employment and related spending by the federal administrative agencies, and Congress has determined that each agency is responsible for managing its own employees. OPM lacks the constitutional, statutory, or regulatory authority to order federal agencies to terminate employees in this fashion that Congress has authorized those agencies to hire and manage, and certainly has no authority to require agencies to perpetrate a massive fraud on the federal workforce by lying about federal workers’ “performance,” to detriment of those workers, their families, and all those in the public and private sectors who rely upon those workers for important services….

Notwithstanding this lack of legal authority, OPM ordered federal agencies throughout the nation, including in this District, to wipe out their ranks of probationary employees…

OPM also ordered the agencies to use a template e-mail to terminate these workers, provided by OPM, that falsely inform employees that their terminations are for performance reasons…

The federal agencies that followed OPM’s directive did not otherwise have plans to terminate the entirety of their probationary workforce…some agencies have confirmed to their employees that they did not want to terminate their probationary employees but were directed to do so by OPM. And they have confirmed that the notices of termination mandated by OPM were false, because the agencies were not firing the workers for performance reasons….

tens of thousands of probationary employees across dozens of federal agencies have already been terminated in the summary, assembly-line fashion directed by OPM. Each day, more such employees receive notice of the termination of their federal employment. The terminations have been conducted summarily, without any advance notice to the affected employees, throwing their lives, their families’ lives, and the entire federal government into chaos….

OPM, the federal agency charged with implementing this nation’s employment laws, in one fell swoop has perpetrated one of the most massive employment frauds in the history of this country, telling tens of thousands of workers that they are being fired for performance reasons, when they most certainly were not….

OPM’s program is an unlawful ultra vires action outside the scope of any statutory or Constitutional authority. OPM’s program also violates the APA’s prohibitions of unlawful, arbitrary and capricious, and procedurally improper agency action (including because this government-wide action was taken without notice and comment rule-making). Where, as here, a federal agency has engaged in unlawful action contrary to the APA, the courts “shall …hold unlawful and set aside” that action….

The APA, was designed to “serve as the fundamental charter of the administrative state.”… “Congress in 1946 enacted the APA ‘as a check upon administrators whose zeal might otherwise have carried them to excesses not contemplated in legislation creating their offices.’”… OPM’s actions disrupt the constitutional balance of power and violate numerous federal statutes, running roughshod over fundamental protections against unlawful and arbitrary federal action….

Each agency has its own authorizing statutes that govern its administration, including statutory provisions that authorize one or more individuals to act as the head of the agency….

Congress has also authorized, in these agency-specific establishing statutes, each agency head to exercise powers of management over that agency and its employees, including the hiring and firing of employees…

Congress also delegated general authority to each federal agency head to adopt regulations “for the government of his department, the conduct of its employees, the distribution and performance of its business…”…

Congress also enacted the Civil Service Reform Act of 1978 (“CSRA”) to establish uniform standards for agencies and civil service employment across the federal government….(defining “civil service”)… (defining “employee”)…

Congress also established the OPM by statute…Congress did not authorize the OPM to hire or fire any federal employees employed by any agency other than OPM itself…OPM’s role, as established by Congress, is to act as the human resources agency for the federal government, including by creating and publishing government-wide rules in compliance with the APA…OPM’s authority with respect to the termination of employees of other agencies and departments is limited to providing technical assistance and writing regulations….

OPM’s mass termination program has swept up two categories of federal employees, whose employment is governed by statute and regulation: probationary employees in the “competitive” service, and employees within their first two years of employment in the “excepted” service….

Federal agencies may lawfully terminate probationary employees based on the agency’s assessment of the employee’s performance during the probationary period, pursuant to 5 C.F.R. § 315.804(a), which is entitled: “Termination of probationers for unsatisfactory performance or conduct.”…

“[W]hen an agency decides to terminate an employee serving a probationary or trial period because his work performance or conduct during this period fails to demonstrate his fitness or his qualifications for continued employment, it shall terminate his services by notifying him in writing as to why he is being separated and the effective date of the action.”… “The information in the notice as to why the employee is being terminated shall, as a minimum, consist of the agency’s conclusions as to the inadequacies of his performance or conduct.”…

Federal agencies may also lawfully terminate a probationary employee “for reasons based in whole or in part in conditions arising before his appointment.”…

Federal agencies may also terminate probationary employees as part of an agency RIF. An agency may conduct a RIF “to reduce the size of its workforce.”… “RIFs are not aimed at removing particular individuals; rather, they are directed solely at positions.”…

Agencies must follow specific statutory directives in conducting a RIF, including detailed requirements for retention preferences, considerations for veterans, and the consideration of tenure of employment and length of service….Congress delegated to OPM the authority to promulgate regulations that agencies must follow in implementing RIFs….

These RIF regulations apply whenever an agency determines that it is necessary to release employees “because of lack of work; shortage of funds; insufficient personnel ceiling; reorganization; the exercise of reemployment rights or restoration rights; or reclassification of an employee’s position due to erosion of duties … .”…

All agencies of the federal government are required to comply with the RIF regulations whenever an agency “determines that a reduction force is necessary.”…

The RIF regulations apply to employees in the competitive and excepted services….Probationary employees are expressly protected by the RIF regulations….Probationary employees are included in “group II” of three groups of employees, and may only be released, in order of retention, after the release of “group III” employees, a group that includes employees under various temporary, term, and other provisional appointments….

Many probationary employees are veterans or would otherwise be entitled to preference in the event of a RIF….

The RIF regulations require that employees receive notice of at least 60 days before being released from employment, or at least 30 days from when the RIF is caused by circumstances that were not reasonably foreseeable….

The governing statute and the RIF regulations also require that states and local governments be notified in advance of RIFs of 50 or more employees in an affected geographic area so they can be prepared to assist affected employees….

Before the first day of the new Presidential Administration, OPM had never taken the position that it had the authority to direct other agencies to terminate employees….No mention was made of any federal government plan to terminate the employment of probationary employees at any agency, or across the nation….

No union or group of federal employees had been provided any notice of any program or decision to terminate probationary employees….

[ B]efore January 20, 2025, OPM had no plans to order federal agencies to terminate their probationary employees, and no agency had such a plan….

Before January 20, 2025, no OPM Director had ever taken the position that OPM had the legal authority to direct agencies to terminate the employment of employees of other federal agencies….

On January 20, 2025, the first day of the incoming Presidential Administration…

Acting OPM Director Ezell distributed a memo to “Heads and Acting Heads of Departments and Agencies” regarding “Guidance on Probationary Periods, Administrative Leave and Details.” In this memo, Acting Director Ezell directed department and agency heads to submit to OPM, no later than January 24, 2025 [(4) four days], a report listing all “employees on probationary periods, who have served less than a year in a competitive service appointment, or who have served less than two years in an excepted service appointment.” The memorandum directed agencies to “promptly determine whether these employees should be retained at the agency.”…

OPM required agencies to adhere to a 200-character limit in any explanation provided as to why any individual employee should be retained by the agency….

On February 11, 2025, President Trump issued Executive Order 14210, entitled “Implementing the President’s ‘Department of Government Efficiency’ Workforce Optimization Initiative.” The Executive Order instructed that “Agency Heads shall promptly undertake preparations to initiate large-scale reductions in force (RIFs).”…

OPM did not wait for agencies to plan for or initiate any RIF….

On February 13, 2025, OPM officials met with agency leaders across the federal government and directed them to begin firing their probationary employees without following RIF procedures….

Agencies across the federal government began acting on OPM’s February 13 directive immediately through chaotic mass terminations of their probationary employees….

Tens of thousands of probationary employees have already been subjected to mass terminations, with no advance notice, by agencies across the federal government…

“So for those of you that have federal benefits. Sorry. Okay. For those of you that have federal benefits, your health insurance will be terminated at the end of the pay period.… This is not a decision the agency made. This is a direction we received…We are following orders. We are part of the executive branch. ….There’s no negotiation, first of all….It is only a matter of time. It is not today is not the only workforce reduction that we will do.”…

The NSF explained that the agency had previously been told that it would have discretion to retain workers, and had in fact made the decision to retain all of its probationary employees, only to have OPM issue a superseding order on February 13, 2025 requiring the agency to terminate everyone:…

“And late, late Friday night….They told us that they directed us to remove probationers.”….

Termination letters received by probationary employees in multiple agencies, including the Departments of Homeland Security, Health and Human Services, Agriculture, and Education, included identical introductory language…with identical footnotes….

Termination letters received by probationary employees in multiple agencies included the following boilerplate language describing the reasons for their termination: “The Agency finds, based on your performance, that you have not demonstrated that your further employment at the Agency would be in the public interest.”… “Unfortunately, the Agency finds that that you are not fit for continued employment because your ability, knowledge and skills do not fit the Agency’s current needs, and your performance has not been adequate to justify further employment at the Agency.”…

Despite the citation of these authorities in the template termination letters, the letters fail to provide any individualized reasons why the employees’ performance warranted termination. Many termination letters appear to have been created by means of mail merges. Some termination letters do not even specify the name of the employee being terminated….

The reference to employee performance in the mass termination letters and the citation to the authority for the termination of probationary employees for performance reasons is a pretext. The real reason for the mass terminations, as expressed by the incoming Presidential Administration, is to reduce the size of the federal workforce….

Many terminated probationary employees had received excellent performance reviews from their agencies. Supervisors were not consulted as to the performance of individual probationary employees before they were terminated…. some probationary employees have subsequently been told by agency representatives that they were terminated solely because their agencies were being restructured…“most of those employees were rated as being ‘exceptional’ performers by their supervisors.”…

Terminated employees and their families now face an immediate loss of income and benefits (including health benefits); economic insecurity; the immediate need to search for alternative employment; and the future adverse impact of an employment termination falsely predicated on performance….

“the Trump administration has already made the United States more exposed to catastrophic wildfires in ways that will be difficult to reverse, current and former federal employees say….The job cuts, which amount to roughly 10 percent of the agency’s work force, could hobble the Forest Service, which was already struggling to remove vegetation across its vast land holdings at a pace that matches the growing threat from fires…

On February 22, 2025, OPM began to implement a new mandatory reporting program for all federal employees throughout the federal government. OPM has ordered all federal employees to submit e-mail reports justifying their work….

Prior to February 22, 2025, federal employees were not required to submit any reports regarding their work to OPM. On information and belief, no OPM rule, regulation, policy, or program has ever, in United States history, purported to require all federal workers to submit reports to OPM….

The message was not signed by any government official, nor did it identify the head of agency on whose behalf it was sent, the authority or program under which it was sent….

The title of the email was: “What did you do last week?”…

On February 22, 2025 a social media account purporting to belong to an individual named Elon Musk (@elonmusk), who has been identified by the President as the head of the federal agency known as Department of Government Efficiency (“DOGE”), posted the following message: “Consistent with President @realDonaldTrump’s instructions, all federal employees will shortly receive an email requesting to understand what they got done last week. Failure to respond will be taken as a resignation.”…

Prior to February 22, 2025, no notice was published, in the Federal Register or anywhere else, regarding any OPM program, rule, policy, or regulation requiring all federal employees to provide a report regarding their work to OPM….

OPM has not complied with any procedural requirements in the APA, 5 U.S.C. §553, with respect to this new program….some federal agencies, including the Federal Bureau of Investigation, began telling their employees not to respond to this OPM surprise request….

The Constitution vests the legislative power in Congress….

The Constitution vests executive power in the President…. [and] a duty to “take Care that the Laws be faithfully executed.”…

The President and Executive Branch have no constitutional power to unilaterally enact, amend, or repeal parts of duly enacted statutes….The declared purpose of separating and dividing the powers of government was to “diffus[e] power the better to secure liberty.”… James Madison in The Federalist No. 47, [said] that ‘there can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates’....”…

Congress exercised its Article I legislative authority to create the agencies of the federal government….To the agency heads, Congress has also expressly delegated the power to manage the functions of the agencies, including the right to employ and discharge subordinate employees of the agencies and to spend appropriated funds on those positions….

Congress has also generally authorized the heads of administrative agencies to make employment decisions…

Congress also made the federal administrative agencies subject to the requirements of the CSRA, which sets forth uniform rules pertaining to employment for the civil service across federal agencies. The agencies, led by their agency heads, are obligated by Congress to comply with the CSRA with respect to their employees….

The OPM Program requiring federal agencies to remove probationary employees throughout the federal government unlawfully usurps the legislative authority of Congress and is therefore ultra vires…

OPM’s actions were not authorized by any Article II Executive power, because no Article II constitutional power authorizes OPM to order federal agencies created by Congress to discharge subordinate agency employees, or to direct agencies to rely on false statements regarding employee performance to effectuate the discharged ordered by OPM….

Under the APA, a court shall “hold unlawful and set aside agency action” that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law”…

The actions of OPM and its Acting Director, including but not limited to the OPM program requiring federal agencies to terminate probationary employees, violate the Administrative Procedure Act because they are inconsistent with law in violation of 5 U.S.C. § 706(2)(A), and exceed statutory authority, in violation of 5 U.S.C. § 706(2)(C), and are for those reasons also arbitrary and capricious in violation of 5 U.S.C. § 706(2)(A)….

OPM’s actions are based on the fiction that the employees are being terminated for performance reasons; OPM’s actions are intended to deprive terminated employees of an administrative remedy; OPM’s actions required agencies to terminate employees immediately, often with only a few hours notice; OPM’s actions required agencies to violate commitments made to employees and the agency’s own plans for those employees; and OPM’s actions had no relationship to agencies’ staffing needs or statutory mandates….

The OPM Order directing agencies to terminate probationary employees is a “rule” for purposes of the APA….

Notwithstanding the OPM Director’s express obligations pursuant to 5 U.S.C. §§ 1103 and 1105 to comply with notice and comment rule-making pursuant to the APA, neither OPM nor its Acting Director complied with the rule-making provisions set forth in 5 U.S.C. § 553 before issuing the OPM order directing agencies to terminate probationary employees….

Had OPM followed notice-and-comment procedures required by the APA, Plaintiffs would have provided comments about the OPM Program….

OPM’s new program for federal employee reporting constitutes final agency action under the APA….

Plaintiffs pray that this Court:

1. Declare that OPM’s new programs 1) requiring federal agencies to terminate probationary employees and 2) requiring federal employees to report to OPM are unlawful;

2. Enter preliminary or permanent injunctive relief setting aside OPM’s order as unlawful; requiring Defendants, and all persons acting in concert with them, to cease terminations of probationary employees pursuant to OPM’s program and order; and requiring Defendants, and all persons acting in concert with them, to rescind the prior unlawful terminations of probationary employees pursuant to OPM’s Order.

3. Enter preliminary or permanent injunctive relief setting aside OPM’s order as unlawful; requiring Defendants, and all persons acting in concert with them, to cease requiring federal employees to report to OPM, and take no action against any employee who fails to respond to OPM’s instructions to report...

FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Plaintiffs American Federation of Government Employees, AFL-CIO (“AFGE”), American Federation of State County and Municipal Employees, AFL-CIO (“AFSCME”), AFGE Local 1216, and United Nurses Associations of California/Union of Health Care Professionals, AFSCME, AFLCIO (“UNAC/UHCP”), AFGE Local 2110 (collectively, “Union Plaintiffs”), Main Street Alliance, Coalition To Protect America’s National Parks, Western Watersheds Project, Vote Vets Action Fund Inc., and Common Defense Civic Engagement (collectively, “Plaintiffs”), file this complaint seeking to enjoin the terminations of tens of thousands of federal employees in contravention of federal constitutional and statutory law, against Defendants the United States Office of Personnel Management (“OPM”) and Acting OPM Director Charles Ezell, and hereby plead as follows:

INTRODUCTION

1. On February 13, 2025, Defendant OPM and its newly appointed Acting Director, Defendant Charles Ezell, ordered federal agencies across the country to terminate tens of thousands of federal employees by sending them standardized notices of termination, drafted by OPM, that falsely state that the terminations are for performance reasons.

2. Probationary employees are employees of the competitive service in their first year of employment, and employees of the excepted service in their first two years of employment (hereafter collectively “probationary employees”). Probationary employees may include experienced federal employees who have recently become employed in a new position or a new agency.

3. OPM’s directive that federal agencies terminate these employees en masse, on pretextual grounds, seeks to further the newly elected Presidential Administration’s policy goals of dramatically curtailing the size and spending of the federal government. But Congress, not OPM, controls and authorizes federal employment and related spending by the federal administrative agencies, and Congress has determined that each agency is responsible for managing its own employees. OPM lacks the constitutional, statutory, or regulatory authority to order federal agencies to terminate employees in this fashion that Congress has authorized those agencies to hire and manage, and certainly has no authority to require agencies to perpetrate a massive fraud on the federal workforce by lying about federal workers’ “performance,” to detriment of those workers, their families, and all those in the public and private sectors who rely upon those workers for important services.

4. OPM is an agency with no statutory authority to make termination decisions for federal employees (other than for OPM’s own employees). Notwithstanding this lack of legal authority, OPM ordered federal agencies throughout the nation, including in this District, to wipe out their ranks of probationary employees without any regard to applicable statutes, including the Administrative Procedure Act (“APA”) and statutes governing federal employment and the respective roles of OPM and the agencies.

5. OPM also ordered the agencies to use a template e-mail to terminate these workers, provided by OPM, that falsely inform employees that their terminations are for performance reasons rather than as part of a government-wide policy to reduce headcount that was authorized by no law.

6. The federal agencies that followed OPM’s directive did not otherwise have plans to terminate the entirety of their probationary workforce, who were employed in authorized positions to perform services that in each agency’s judgment were needed to perform their statutorily mandated role. In fact, some agencies have confirmed to their employees that they did not want to terminate their probationary employees but were directed to do so by OPM. And they have confirmed that the notices of termination mandated by OPM were false, because the agencies were not firing the workers for performance reasons.

7. As of the filing of this Complaint, tens of thousands of probationary employees across dozens of federal agencies have already been terminated in the summary, assembly-line fashion directed by OPM. Each day, more such employees receive notice of the termination of their federal employment. The terminations have been conducted summarily, without any advance notice to the affected employees, throwing their lives, their families’ lives, and the entire federal government into chaos.

8. OPM, the federal agency charged with implementing this nation’s employment laws, in one fell swoop has perpetrated one of the most massive employment frauds in the history of this country, telling tens of thousands of workers that they are being fired for performance reasons, when they most certainly were not.

9. OPM’s program is an unlawful ultra vires action outside the scope of any statutory or Constitutional authority. OPM’s program also violates the APA’s prohibitions of unlawful, arbitrary and capricious, and procedurally improper agency action (including because this government-wide action was taken without notice and comment rule-making). Where, as here, a federal agency has engaged in unlawful action contrary to the APA, the courts “shall …hold unlawful and set aside” that action. 5 U.S.C. § 702(2).

10. The APA, was designed to “serve as the fundamental charter of the administrative state.” Kisor v. Wilkie, 588 U.S. 558, 580 (2019) (plurality opinion) (internal quotation marks omitted). As the Supreme Court recently explained, “Congress in 1946 enacted the APA ‘as a check upon administrators whose zeal might otherwise have carried them to excesses not contemplated in legislation creating their offices.’” Loper Bright Enterprises v. Raimondo, 603 U.S. 369, 391 (2024) (quoting United States v. Morton Salt Co., 338 U.S. 632, 644 (1950)). OPM’s actions disrupt the constitutional balance of power and violate numerous federal statutes, running roughshod over fundamental protections against unlawful and arbitrary federal action.

11. The Court should immediately enjoin OPM and all those acting in concert with it to cease implementation of its unlawful order requiring these mass pretextual terminations of probationary federal employees and to rescind the unlawful terminations that already have occurred.

JURISDICTION AND VENUE

12. This Court has jurisdiction pursuant to 28 U.S.C. § 1331.

13. Venue is appropriate in this district under 28 U.S.C. § 1391(e). Plaintiffs AFGE and AFGE Local 1216 represent probationary and trial-period federal employees whose place of employment is within the Northern District of California, and who have been terminated, or are subject to termination, because of OPM’s illegal program.

14. Intradistrict assignment is appropriate in the San Francisco/Oakland division of this Court.

PARTIES

15. Plaintiff AFGE, AFL-CIO, is a labor organization and unincorporated association headquartered at 80 F Street N.W., Washington, D.C. 20001. AFGE, the largest union of federal employees, represents approximately 800,000 federal civilian employees through its affiliated councils and locals in every state in the United States, including employees of numerous agencies of the federal government, including the Department of Veterans Affairs (“VA”), Department of Education, National Institutes of Health, Small Business Administration, and others. AFGE represents employees of the VA who are employed in San Francisco, Oakland, San Bruno, Eureka, Ukiah, Clearlake, and Martinez, California.

16. Plaintiff AFSCME, AFL-CIO, is a labor organization and unincorporated association headquartered at 1625 L Street, N.W., Washington, D.C. 20036. AFSCME is the largest trade union of public employees in the United States, with 1.4 million members organized into approximately 3,400 local unions, 58 councils and affiliates in 46 states, the District of Columbia and Puerto Rico. AFSCME unions represent federal civilian employees in numerous agencies and departments across the federal government, including the Federal Aviation Administration, the Department of Agriculture, the Peace Corps, Americorps, and the Veterans Administration.

17. Plaintiff AFGE Local 1216 is a labor organization and unincorporated association headquartered at 4150 Clement Street, San Francisco, California 94121. AFGE Local 1216 represents hundreds of VA employees who are employed in San Francisco, California.

18. Plaintiff United Nurses Association of California/United Health Care Professionals, AFSCME, AFL-CIO (“UNAC”), is a labor organization and an unincorporated association headquartered at 955 Overland Ct., Suite 150, San Dimas, California 91773. UNAC represents employees of the VA who are employed at Pettis Memorial Hospital in Loma Linda, California.

19. Plaintiff AFGE Local 2110 is a labor organization and unincorporated association headquartered in Palo Alto, California. AFGE Local 2110 represents approximately 4,000 employees of the VA at the VA Palo Alto Health Care System, including its Menlo Park and Livermore Divisions, and at several Community-Based Outpatient Clinics in Fremont, San Jose, Monterey, and Capitola. Those employees work in all non-supervisory classifications, including doctors, nurses, emergency medical services personnel, food service workers, custodial staff, and administrative staff.

20. Plaintiff Main Street Alliance (“MSA”) is a national network of small businesses, with approximately 30,000 members throughout the United States. MSA helps small business owners realize their full potential as leaders for a just future that prioritizes good jobs, equity, and community through organizing, research, and policy advocacy. MSA also seeks to amplify the voices of its small business membership by sharing their experiences with the aim of creating an economy where all small business owners have an equal opportunity to succeed. MSA is nonpartisan and is a §501(c)(3) organization. MSA has approximately 1,410 small business members in California, including more than 70 small businesses in Alameda, Santa Clara, San Francisco, Sonoma, and Contra Costa Counties.

21. Plaintiff Coalition to Protect America’s National Parks (“Coalition”) is a non-profit organization made up of over 3,400 members, all of whom are current, former, and retired employees and volunteers of the National Park Service. Together, they have accumulated over 50,000 years of experience caring for America’s most valuable natural and cultural resources. The Coalition’s goal is to support the preservation and protection of the National Park System and the mission-related programs of the National Park Service (“NPS”) to ensure the survival of the park system for generations to come. The Coalition’s members are regular and avid users of the National Park System and NPS programs.

22. Plaintiff Western Watersheds Project (“WWP”) is a non-profit environmental conservation group that works to influence and improve public lands management throughout the western United States to protect native species and conserve and restore the habitats they depend on. WWP’s primary focus is on the negative impacts of livestock grazing, including harm to ecological, biological, cultural, historic, archeological, scenic resources, wilderness values, roadless areas, Wilderness Study Areas and designated Wilderness. WWP was founded in 1993 and has more than 14,000 members and supporters and field offices in Idaho, Montana, Wyoming, Arizona, Nevada, and Oregon. WWP covers over 250 million acres of public land spanning all of the western states.

23. Plaintiff Vote Vets Action Fund Inc. (“VoteVets”) is a non-partisan, non-profit organization incorporated under the laws of the District of Columbia. Its purpose is to lift up the voices of veterans on matters of national security, veterans’ care, and everyday issues that affect the lives of those who served as well as their families including foreign policy, veterans’ unemployment, robust investment in care for veterans, energy security, protecting the rights of those who serve, and upholding the Constitution and democracy that every military member swore to uphold and protect. VoteVets has nearly two million supporters across the country, in all fifty states, with whom it regularly communicates about issues affecting veterans, including the operations, programs, and services available through the VA. Approximately 417,000 of VoteVets’ supporters live in California, including 131,000 in Northern California.

24. Plaintiff Common Defense Civic Engagement (“Common Defense”) is a grassroots membership organization of progressive veterans, military families, and civilian supporters standing up for our communities against the rising tide of racism, hate, and violence. Common Defense invests in the leadership of its members through training and deployment in campaigns that connect directly to their history of service, including voting rights, climate justice, and anti-militarism. Approximately 33,187 of Common Defense’s members live in California, including approximately 2,000 veterans.

25. Plaintiffs bring the claims in this complaint on their own behalf and on behalf of their members.

26. Defendant Office of Personnel Management (“OPM”) is a federal agency headquartered in Washington, D.C. OPM is a federal agency within the meaning of the Administrative Procedure Act (“APA”), 5 U.S.C. § 551(1).

27. Defendant Charles Ezell has been the Acting Director of OPM since January 20, 2025. He is sued in his official capacity.

FACTUAL ALLEGATIONS

I. Statutes and Regulations Governing Termination of Federal Employment

A. Congressional Authorization to Federal Agencies and OPM

28. Congress created the federal agencies that employ federal workers through an exercise of its Article I legislative power. The executive agencies of the federal government are identified in various statutes, including 5 U.S.C. § 101 (listing agencies).

29. Each agency has its own authorizing statutes that govern its administration, including statutory provisions that authorize one or more individuals to act as the head of the agency. See e.g.,10 U.S.C. §§ 111, 113 (Defense); 12 U.S.C. § 5491 (CFPB); 16 U.S.C. § 551 (Agriculture/Forest Service); 26 U.S.C. §§ 7801, 7803 (IRS); 38 U.S.C. §§ 301, 303 (VA); 42 U.S.C. §§ 202, 203 (HHS); 42 U.S.C §§ 281, 282 (NIH); 42 U.S.C. §§3411, 3412 (Education); 42 U.S.C. § 7131 (Energy); 51 U.S.C. § 20111 (NASA).

30. Congress has also authorized, in these agency-specific establishing statutes, each agency head to exercise powers of management over that agency and its employees, including the hiring and firing of employees, consistent with any generally applicable laws. For example:

• 26 U.S.C. §§ 7803, 7804 (IRS: “the Commissioner of Internal Revenue is authorized to employ such number of persons as the Commissioner deems proper for the administration and enforcement of the internal revenue laws, and the Commissioner shall issue all necessary directions, instructions, orders, and rules applicable to such persons.”);

• 42 U.S.C. §§ 7231, 7253 (Energy: “In the performance of his functions the Secretary is authorized to appoint and fix the compensation of such officers and employees, including attorneys, as may be necessary to carry out such functions. Except as otherwise provided in this section, such officers and employees shall be appointed in accordance with the civil service laws …”; the Secretary is authorized to establish, alter, consolidate or discontinue such organizational units or components within the Department as he may deem to be necessary or appropriate.”);

• 20 U.S.C. § 3461 (Education: “The Secretary is authorized to appoint and fix the compensation of such officers and employees, including attorneys, as may be necessary to carry out the functions of the Secretary and the Department. Except as otherwise provided by law, such officers and employees shall be appointed in accordance with the civil service laws …”);

• 42 U.S.C. § 203 (HHS: “The Secretary is authorized … to establish within them such divisions, sections, and other units as he may find necessary; and from time to time abolish, transfer, and consolidate divisions, sections, and other units and assign their functions and personnel in such manner as he may find necessary for efficient operation of the Service.”);

• 12 U.S.C. § 5492 (CFPB: “The Bureau is authorized to establish the general policies of the Bureau with respect to all executive and administrative functions, including—…(7) the appointment and supervision of personnel employed by the Bureau; (8) the distribution of business among personnel appointed and supervised by the Director and among administrative units of the Bureau”);

• See also, e.g., 16 U.S.C. §§ 551, 554a, e (Agriculture; management and employment in Forest Service); 38 U.S.C. §§ 303, 510 (VA: Secretary; “control, direction, and management of Department”; “authority to reorganize offices”); 10 U.S. C. § 113 (DOD: Secretary; “authority, direction, and control over the Department of Defense”); 42 U.S.C. § 282 (NIH: Director, management authority); 51 U.S.C. §§ 20111, 20113 (NASA: Administrator “shall have authority and control over all personnel and activities thereof.”).

31. In addition to the specific authority granted to each agency head by these authorizing statutes, Congress also enacted a “General authority to employ” that applies to all federal agencies:

Each Executive agency, military department, and the government of the District of Columbia may employ such number of employees of the various classes recognized by chapter 51 of this title as Congress may appropriate for from year to year.

5 U.S.C. § 3101.

32. Besides this specific authority regarding employment decisions, Congress also delegated general authority to each federal agency head to adopt regulations “for the government of his department, the conduct of its employees, the distribution and performance of its business…” 5 U.S.C. § 301; see also 5 U.S.C. § 302 (authorizing agency heads to delegate their authority to subordinate employees).

33. Congress also enacted the Civil Service Reform Act of 1978 (“CSRA”) to establish uniform standards for agencies and civil service employment across the federal government. 5 U.S.C. § 2101 (defining “civil service”); § 2015 (defining “employee”). The provisions of the CSRA include statutes governing agency termination of employees for cause based on performance (5 U.S.C. § 4303(a); 5 U.S.C. § 7513(a)), and agency layoffs (“reductions in force, or “RIFs”) (5 U.S.C. § 3502).

34. Congress also established the OPM by statute. 5 U.S.C. § 1101. Congress did not authorize the OPM to hire or fire any federal employees employed by any agency other than OPM itself. 5 U.S.C. §§ 1102, 1103. Rather, OPM’s role, as established by Congress, is to act as the human resources agency for the federal government, including by creating and publishing government-wide rules in compliance with the APA. 5 U.S.C. §§ 1103, 1105. OPM’s authority with respect to the termination of employees of other agencies and departments is limited to providing technical assistance and writing regulations. 5 U.S.C. §§ 4304, 4305, 7514.

35. As the Acting Solicitor General recently confirmed in a petition to the U.S. Supreme Court on behalf of the President and other federal officials, “[a]gency heads control hiring and firing decisions for subordinates—here, an agency of over 100 people who perform important investigative and enforcement functions affecting the entire federal workforce.” Thus, in support of its request to vacate a district court temporary restraining order reinstating the head of the Office of Special Counsel, the federal government argued that the President’s inability to remove the head of the agency deprived him of the power to control agency’s employees—because only the agency head is authorized to hire and fire an agency’s employees.1

Probationary and Trial-Period Employees in Federal Service

36. Approximately 200,000 probationary employees are employed in agencies throughout the federal government nationwide.2 Of these, approximately 15,000 are employed in California, providing services that range from fire prevention to veterans’ care.

37. OPM’s mass termination program has swept up two categories of federal employees, whose employment is governed by statute and regulation: probationary employees in the “competitive” service, and employees within their first two years of employment in the “excepted” service. Plaintiffs refer herein to all such employees as “probationary employees.”

38. Probationary employees in the competitive service are, with some exceptions, those who have been employed for less than one year. 5 U.S.C. § 7511(a)(1)(A)(ii); 5 C.F.R. § 315.801. Employees are appointed as “career” or “career-conditional employees” subject to completing the probationary period. 5 C.F.R. § 315.201(a).

39. The probationary period provides the opportunity for the federal agency to assess the individual performance of the employee. Under governing OPM regulations, an agency “shall utilize the probationary period as fully as possible to determine the fitness of the employee and shall terminate his or her services during this period if the employee fails to demonstrate fully his or her qualifications for continued employment.” 5 C.F.R. § 315.803(a).

40. Most employees in the excepted service are also subject to a statutory trial period of two years, which, like the probationary period in the competitive service, is intended to permit the agency to evaluate the employee’s performance and fitness for long-term employment. 5 U.S.C. § 7511(a)(1)(C)(ii).

C. Regulations Governing the Termination of Probationary Employees

41. Federal agencies may lawfully terminate probationary employees based on the agency’s assessment of the employee’s performance during the probationary period, pursuant to 5 C.F.R. § 315.804(a), which is entitled: “Termination of probationers for unsatisfactory performance or conduct.”

42. Under that regulation, “when an agency decides to terminate an employee serving a probationary or trial period because his work performance or conduct during this period fails to demonstrate his fitness or his qualifications for continued employment, it shall terminate his services by notifying him in writing as to why he is being separated and the effective date of the action.” 5 C.F.R. § 315.804(a). “The information in the notice as to why the employee is being terminated shall, as a minimum, consist of the agency’s conclusions as to the inadequacies of his performance or conduct.” Id. Trial-period employees in the excepted service have the same notice rights when removed from their positions for performance reasons. 5 C.F.R. § 316.304.

43. Federal agencies may also lawfully terminate a probationary employee “for reasons based in whole or in part in conditions arising before his appointment.” 5 C.F.R. § 515.805.

D. Statutes and Regulations Governing the Termination of Employees as Part of a RIF [Reduction in Force]

44. Federal agencies may also terminate probationary employees as part of an agency RIF. An agency may conduct a RIF “to reduce the size of its workforce.” Tiltti v. Weise, 155 F.3d 596, 601 (2d Cir. 1998). “RIFs are not aimed at removing particular individuals; rather, they are directed solely at positions.” Grier v. Dep’t of Health & Hum. Servs., 750 F.2d 944, 945 (Fed. Cir. 1984).

45. Agencies must follow specific statutory directives in conducting a RIF, including detailed requirements for retention preferences, considerations for veterans, and the consideration of tenure of employment and length of service. 5 U.S.C. § 3502(a)(1), (3). Congress delegated to OPM the authority to promulgate regulations that agencies must follow in implementing RIFs. 5 U.S.C. § 3502(a).

46. Pursuant to that statutory authorization, and through notice-and-comment rulemaking, OPM has issued detailed regulations setting forth the procedures by which RIFs must be conducted. See 5 C.F.R. Part 351. These RIF regulations apply whenever an agency determines that it is necessary to release employees “because of lack of work; shortage of funds; insufficient personnel ceiling; reorganization; the exercise of reemployment rights or restoration rights; or reclassification of an employee’s position due to erosion of duties … .” 5 C.F.R. § 351.201(a)(2).

47. All agencies of the federal government are required to comply with the RIF regulations whenever an agency “determines that a reduction force is necessary.” 5 C.F.R. § 351.204; see also 5 C.F.R. § 351.201(c) (“Each agency is responsible for assuring that the provisions in this part are uniformly and consistently applied in any one reduction in force.”).

48. The RIF regulations apply to employees in the competitive and excepted services. 5 C.F.R. § 351.202(a), (b). Probationary employees are expressly protected by the RIF regulations. 5 C.F.R. §§ 351.501(b)(2), 351.502(b)(2). Probationary employees are included in “group II” of three groups of employees, and may only be released, in order of retention, after the release of “group III” employees, a group that includes employees under various temporary, term, and other provisional appointments. 5 C.F.R. § 351.501(b).

49. Before conducting a RIF, a federal agency must establish “competitive areas in which employees compete for retention.” 5 C.F.R. § 351.402. Thus, RIFs are not conducted based on agency-wide seniority. Many probationary employees are veterans or would otherwise be entitled to preference in the event of a RIF.

50. The RIF regulations require that employees receive notice of at least 60 days before being released from employment, or at least 30 days from when the RIF is caused by circumstances that were not reasonably foreseeable. 5 C.F.R. § 351.801(a), (b).

51. The governing statute and the RIF regulations also require that states and local governments be notified in advance of RIFs of 50 or more employees in an affected geographic area so they can be prepared to assist affected employees. 5 U.S.C. § 3502; 5 C.F.R. § 351.803.

II. OPM’s Unlawful February 13, 2025 Order to Fire Probationary Employees Across the Nation

52. Before the first day of the new Presidential Administration, OPM had never taken the position that it had the authority to direct other agencies to terminate employees. As of early January 2025, the Acting OPM Director was Rob Shriver. On January 16, 2025, he issued a press release, and gave an interview discussing OPM’s work with agencies throughout the federal government on issues ranging from “skills-based federal hiring”; the “”retirement claims backlog”; a “new health insurance program for Postal workers”; and, significantly, “how agencies recruit and retain early-career employees.” (Emphasis added).3 No mention was made of any federal government plan to terminate the employment of probationary employees at any agency, or across the nation.

53. Before January 20, 2025, OPM had made no public statement regarding any program to terminate probationary employees. Neither had any agency in the federal government made any public statement regarding any desire to terminate probationary employees. No union or group of federal employees had been provided any notice of any program or decision to terminate probationary employees. On information and belief, before January 20, 2025, OPM had no plans to order federal agencies to terminate their probationary employees, and no agency had such a plan.

54. Before January 20, 2025, no OPM Director had ever taken the position that OPM had the legal authority to direct agencies to terminate the employment of employees of other federal agencies.

55. On January 20, 2025, the first day of the incoming Presidential Administration, President Donald J. Trump appointed Charles Ezell to serve as Acting OPM Director.

56. The same day, Acting OPM Director Ezell distributed a memo to “Heads and Acting Heads of Departments and Agencies” regarding “Guidance on Probationary Periods, Administrative Leave and Details.” In this memo, Acting Director Ezell directed department and agency heads to submit to OPM, no later than January 24, 2025 [(4) four days], a report listing all “employees on probationary periods, who have served less than a year in a competitive service appointment, or who have served less than two years in an excepted service appointment.”4 The memorandum directed agencies to “promptly determine whether these employees should be retained at the agency.”5

57. OPM required agencies to adhere to a 200-character limit in any explanation provided as to why any individual employee should be retained by the agency.6

58. On February 11, 2025, President Trump issued Executive Order 14210, entitled “Implementing the President’s ‘Department of Government Efficiency’ Workforce Optimization Initiative.”7 The Executive Order instructed that “Agency Heads shall promptly undertake preparations to initiate large-scale reductions in force (RIFs).”8

59. OPM did not wait for agencies to plan for or initiate any RIF.

60. On February 13, 2025, OPM officials met with agency leaders across the federal government and directed them to begin firing their probationary employees without following RIF procedures.9

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61. CBS News has reported that: “The decision on probationary workers, who generally have less than a year on the job, came from the Office of Personnel Management, which serves as a human resources department for the federal government. The notification was confirmed by a person familiar with the matter, who spoke on condition of anonymity because they weren't authorized to discuss it publicly.” (Boldface added.)10

62. On information and belief, as of February 13, 2025, prior to the order from OPM, no federal agency intended to terminate its probationary employees en masse, and no agency intended to terminate probationary employees (other than on an individualized basis for actual performance or conduct reasons) without complying with RIF procedures.

63. Agencies across the federal government began acting on OPM’s February 13 directive immediately through chaotic mass terminations of their probationary employees.11

64. Tens of thousands of probationary employees have already been subjected to mass terminations, with no advance notice, by agencies across the federal government, including employees at the following agencies:

U.S. Forest Service12
Department of Veterans Affairs13
Department of Education14
National Science Foundation15
General Services Administration16
Small Business Administration17
Consumer Financial Protection Bureau18
Department of Energy19
National Nuclear Security Administration20
Housing and Urban Development21
Center for Disease Control22
National Park Service23
National Institutes of Health24
Environmental Protection Agency25
Bureau of Reclamation26
Department of Interior27
Bonneville Power Association28
US Department of Agriculture29
Bureau of Land Management30
US Fish and Wildlife31
Cybersecurity and Infrastructure Security Agency32
US Citizenship and Immigration Services33
Federal Emergency Management Agency34
Federal Aviation Administration35
Department of Transportation36
Food and Drug Administration37
National Highway Traffic Safety Administration38
Pipelines and Hazardous Materials Safety Administration39
Centers for Medicare & Medicaid Services40
Substance Abuse and Mental Health Services Administration41
Federal Deposit Insurance Corporation42

65. While implementing OPM’s orders, numerous federal agencies informed workers that OPM ordered the terminations. For example, at the National Science Foundation meeting for probationary employees, employees were told the following:

You’ve been invited here today because you were either a probationary employee or you are an expert on intermittent appointment.

We’ve asked you here today to tell you face to face that we will be terminating your employment at the end of the day today.

We’ve been directed by the administration to remove all term probationary employees.

Today at 11 o’clock, each of you will receive a termination letter by email.

At 1 p.m, you will lose access to the network[.] And at the end of the day today, you'll be terminated.

You ready? You have one more thing. You have the option to resign in lieu of termination.

That may be beneficial to you. If you choose to resign, you will not be eligible for unemployment.

However, if asked when you apply for future positions, you will be able to say that you were not terminated.

So for those of you that have federal benefits. Sorry. Okay. For those of you that have federal benefits, your health insurance will be terminated at the end of the pay period.

Your federal dental and vision insurance plan, they will terminate at the end of the pay period. There is no extension for coverage under FedVIP.

…

This is in executing Government-wide guidance from the administration. I’m sure you’ve read in the news that all agencies are terminating probationary employees.

…

So there was no limited discretion. This is not a decision the agency made. This is a direction we received, first of all. Second of all, this is the first of many forthcoming workforce reductions.

…

We are following orders. We are part of the executive branch. We follow that. I apologize for people that have made life-changing career moves.

…

We were directed last Friday by OPM to terminate all probationers except for a minimal number of mission critical probationers.

Mission critical determination, first of all, it is exceptionally small number that we’re permitted to have.

…

There’s no negotiation, first of all. And second of all, the administration has already announced its intention to significantly reduce the workforce.

It is only a matter of time. It is not today is not the only workforce reduction that we will do. (Emphasis added.)

66. The NSF explained that the agency had previously been told that it would have discretion to retain workers, and had in fact made the decision to retain all of its probationary employees, only to have OPM issue a superseding order on February 13, 2025 requiring the agency to terminate everyone:

We did. In the last two weeks. Up until Friday. Yes. We were told by OPM it was the agency’s discretion whether to remove probations or not.

We chose to retain them all. Last Friday night.

They gave direction to there was some direction that was given to cabinet level agencies. And so you saw those actions taking place at the end of last week.

But the directions we received were it was our discretion. And late, late Friday night….

They told us that they directed us to remove probationers.

(Emphasis added.)

67. On information and belief, OPM required agencies to use template letters, which OPM created and provided to the agencies, to be sent to those agencies’ probationary employees, citing performance as the basis for the termination.

68. Reflecting that directive, many agencies have used identical or nearly identical text in letters notifying probationary employees of their termination. For example:

a. Termination letters received by probationary employees in multiple agencies, including the Departments of Homeland Security, Health and Human Services, Agriculture, and Education, included identical introductory language stating as follows, with identical footnotes and footnote text:

Guidance from the Office of Personnel Management (“OPM”) states, “An appointment is not final until the probationary/trial period is over,” and the probationary/trial period is part of “the hiring process for employees.”[1] “A probationer is still an applicant for a finalized appointment to a particular position as well as to the Federal service.”[2] “Until the probationary period has been completed,” a probationer has “the burden to demonstrate why it is in the public interest for the Government to finalize an appointment to the civil service for this particular individual.”[3]

b. Termination letters received by probationary employees in multiple agencies included the following boilerplate language describing the reasons for their termination: “The Agency finds, based on your performance, that you have not demonstrated that your further employment at the Agency would be in the public interest.” (Boldface added).

c. Similarly, termination letters received by probationary employees in multiple agencies included the following boilerplate language describing the reasons for their termination: “Unfortunately, the Agency finds that that you are not fit for continued employment because your ability, knowledge and skills do not fit the Agency’s current needs, and your performance has not been adequate to justify further employment at the Agency.” (Boldface added).43

69. At the National Science Foundation meeting reference above, employees were told the language in the letters came from the “boilerplate” language from OPM:

“The cause comes from boilerplate we received from OPM. The cause says that the agency finds based on your performance that you have not demonstrated that your further employment at the agency would be in the public interest.”

70. The termination letters issued to probationary employees cite, as authority for the terminations, the regulations that govern terminations for performance reasons: 5 C.F.R. § 315.803 (directing agencies to terminate probationary employees “if the employee fails to demonstrate fully his or her qualifications for continued employment”); 5 C.F.R. § 315.804 (requiring notice of the reasons when an agency “decides to terminate an employee serving a probationary or trial period because his work performance or conduct during this period fails to demonstrate his fitness or his qualifications for continued employment,” including a statement of the “agency’s conclusions as to the inadequacies of [the employee’s] performance or conduct”); and 5 C.F.R. § 316.304 (entitling trial period employees in the excepted service to the same notice rights upon termination for performance reasons as probationary employees in the competitive service).

71. Despite the citation of these authorities in the template termination letters, the letters fail to provide any individualized reasons why the employees’ performance warranted termination. Many termination letters appear to have been created by means of mail merges. Some termination letters do not even specify the name of the employee being terminated.

72. The reference to employee performance in the mass termination letters and the citation to the authority for the termination of probationary employees for performance reasons is a pretext. The real reason for the mass terminations, as expressed by the incoming Presidential Administration, is to reduce the size of the federal workforce.

73. Many terminated probationary employees had received excellent performance reviews from their agencies. Supervisors were not consulted as to the performance of individual probationary employees before they were terminated. On information and belief, some probationary employees have subsequently been told by agency representatives that they were terminated solely because their agencies were being restructured, not based on any performance or conduct by the employee.

74. USA Today recently reported that “Fired probationary employees interviewed by USA TODAY all said they were never told of any performance problems. One hadn’t been in the job long enough to have a performance review. Another was fired just a month into her job after relocating from more than 1,700 miles away to take it. And a third employee said his supervisor explicitly told him he wasn’t being terminated for performance reasons.44

75. NBC News reported that although Department of Transportation probationary employees received letters stating that they were being terminated for performance reasons, “most of those employees were rated as being ‘exceptional’ performers by their supervisors.”45

76. The Washington Post reported that: “One well-rated Veterans Affairs staffer texted her boss to complain after she was fired. In text messages obtained by The Post, he replied, “It states it’s due to your performance which is not true. … Your performance has nothing to do with this.’”46

77. On information and belief, Defendants plan further waves of mass pretextual terminations of probationary employees.

III. Impact on Plaintiffs, the Federal Government, and the Public

78. Plaintiffs AFSCME, AFGE, AFGE Local 1216, AFGE Local 2110, and UNAC (hereafter “Union Plaintiffs”) each represent probationary employees who have been summarily fired, and falsely informed that their termination was based on performance, as a result of OPM’s orders to federal agencies, or who are at risk of summary termination as a result of OPM’s orders.

79. Each Union Plaintiff has the core function of representing employees in federal bargaining units in collective bargaining and providing counseling, advice, and representation to represented employees in the event of adverse employment actions.

80. Each Union Plaintiff has been prevented, by the surprise mass terminations, from exercising those core functions as employee representative, including because by providing sham reasons for probationary employees’ terminations, OPM has undermined the Plaintiffs’ ability to effectively assist represented employees in vindicating their rights and seeking appropriate remedies.

81. Each Union Plaintiff has expended substantial time and resources in the days following the surprise mass terminations addressing member concerns and attempting to provide employees with effective representation. As a result of the surprise mass terminations, each Plaintiff has been forced to divert resources that would be devoted to representing employees who have experienced adverse employment action for legitimate resources [??].

82. Each Union Plaintiff has been harmed in multiple other ways by the termination of its members, including by the loss of dues income and bargaining power.

83. Each Union Plaintiff has organizational standing to sue in its own right and has associational standing to sue on behalf of its members.

84. Plaintiff Main Street Alliance’s members face imminent harm as a result of the anticipated reductions and delays in services provided by the Small Business Administration, on which its members rely for critical services. Those services include but are not limited to: loan guarantees to enable small businesses to obtain financing to start up or grow; and emergency disaster relief, such as in response to the January 2024 Los Angeles wildfires and Hurricane Helene in Western North Carolina.

85. Plaintiff Coalition to Protect America’s National Parks’ members face imminent harm as a result of the anticipated reductions and delays in services provided by the National Park Service. The Coalition’s members are regular and avid users of America’s national parks who would be adversely affected by any degradation of the parks or the programs of the NPS to preserve and protect the parks and make them available to visitors. Such degradation in safety and services provided to the public in the National Parks is inevitable based on experience in prior government shutdowns and with reductions in services in those circumstances.

86. Plaintiff Western Watersheds Project faces imminent harm to its mission to protect and restore wildlife and public lands. The mass termination is likely to cause further degradation of public lands and wildlife.

87. Plaintiff VoteVets faces imminent harm to its supporters who are veterans and who rely on the VA medical system and other critical federal services provided to veterans. The VA has dismissed over 1,000 probationary employees across various roles, including those in mental health research, cancer treatment, addiction recovery, prosthetics, and burn pit exposure studies. The mass termination has also hindered the recruitment of essential support staff for the Veterans Crisis Line, which provides critical emergency mental health care (including suicide prevention) and support for military veterans, service members, their families, and caregivers positions such as trainers and quality assurance personnel. The mass termination of probationary employees is likely to impair the quality of these essential services. The mass termination has also directly harmed VoteVets as an organization. The time of VoteVets’ staff and consultants has been diverted from VoteVets’ regular activities to field and respond to inquiries from veterans and their families and to connect them with case workers in congressional offices.

88. Plaintiff Common Defense also faces imminent harm to itself and its members. Its veteran members also rely on services provided by the VA medical system and other critical mental health services available to veterans. The mass termination creates the risk of severe disruption to those services. Further, Common Defense has had to devote considerable resources to responding to requests from its members and providing guidance about the mass probationary terminations, diverting resources that Common Defense ordinarily devotes to its other core priorities.

89. Terminated employees and their families now face an immediate loss of income and benefits (including health benefits); economic insecurity; the immediate need to search for alternative employment; and the future adverse impact of an employment termination falsely predicated on performance.

90. OPM’s actions have already had impacts in California beyond terminated employees, their families, and their representatives. For example, “the Trump administration has already made the United States more exposed to catastrophic wildfires in ways that will be difficult to reverse, current and former federal employees say….The job cuts, which amount to roughly 10 percent of the agency’s work force, could hobble the Forest Service, which was already struggling to remove vegetation across its vast land holdings at a pace that matches the growing threat from fires, according to current and former federal employees, as well as private companies and nonprofit organizations that work on thinning forested lands.” 47 The effects have been immediate:

In California, the Forest Service’s efforts to remove underbrush are on pause, according to a person who manages an organization that runs wildfire prevention projects in the state and who spoke on the condition of anonymity out of concern of reprisals. 48

IV. OPM’s February 22, 2025 New Reporting Program for All Federal Workers

91. On February 22, 2025, OPM began to implement a new mandatory reporting program for all federal employees throughout the federal government. OPM has ordered all federal employees to submit e-mail reports justifying their work.

92. Prior to February 22, 2025, federal employees were not required to submit any reports regarding their work to OPM. On information and belief, no OPM rule, regulation, policy, or program has ever, in United States history, purported to require all federal workers to submit reports to OPM.

93. On February 22, 2025, employees throughout the federal government, employed at many different agencies, received the same email, from the address: [email protected].

94. Prior to January 20, 2025, no such email address existed for use by OPM or within the federal government.

95. On information and belief, this e-mail is being sent under the purported authority of OPM.

96. On information and belief, this e-mail was sent to over 2 million federal employees.

97. The message was sent with “High Importance.”

98. The message was not signed by any government official, nor did it identify the head of agency on whose behalf it was sent, the authority or program under which it was sent.

99. The title of the email was: “What did you do last week?”

100. The body of the email stated:

Please reply to this email with approx. 5 bullets of what you accomplished last week and cc your manager.

Please do not send any classified information, links, or attachments.

Deadline is this Monday at 11:59 EST.

101. On February 22, 2025 a social media account purporting to belong to an individual named Elon Musk (@elonmusk), who has been identified by the President as the head of the federal agency known as Department of Government Efficiency (“DOGE”), posted the following message:

Consistent with President @realDonaldTrump’s instructions, all federal employees will shortly receive an email requesting to understand what they got done last week.

Failure to respond will be taken as a resignation.

102. Prior to February 22, 2025, no notice was published, in the Federal Register or anywhere else, regarding any OPM program, rule, policy, or regulation requiring all federal employees to provide a report regarding their work to OPM. Prior to February 22, 2025, no notice was published, in the Federal Register or anywhere else, regarding any program, rule, policy, or regulation under which employees who failed to respond to an email from [email protected] requesting such a report would be considered to have submitted a “resignation” of federal employment.

103. OPM has not complied with any procedural requirements in the APA, 5 U.S.C. §553, with respect to this new program. Subsequent to the OPM email notification on February 22, 2025, at least some federal agencies, including the Federal Bureau of Investigation, began telling their employees not to respond to this OPM surprise request.

CLAIMS FOR RELIEF

Claim I: Separation of Powers/Ultra Vires

OPM’s Order to Federal Agencies to Terminate Probationary Employees Unlawfully Conflicts with and Overrides Legislative Power

104. Plaintiffs incorporate by reference all preceding paragraphs as if fully set forth herein.

105. Plaintiffs have a non-statutory right of action to enjoin and declare unlawful official action that is ultra vires.

106. The Constitution vests the legislative power in Congress. U.S. Const., art. I. Federal legislation must be passed by both chambers of Congress before it may be presented to the President, and, if signed, become law. U.S. Const., art. I.; I.N.S. v. Chadha, 462 U.S. 919, 951 (1983).

107. The Constitution vests executive power in the President. U.S. Const., art. II, and imposes on the President a duty to “take Care that the Laws be faithfully executed.” U.S. Const. art. II, § 3.

108. The President and Executive Branch have no constitutional power to unilaterally enact, amend, or repeal parts of duly enacted statutes. Clinton v. City of New York, 524 U.S. 417, 438–39 (1998). The declared purpose of separating and dividing the powers of government was to “diffus[e] power the better to secure liberty.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring); see also Bowsher v. Synar, 478 U.S. 714, 721–22 (1986) (“Justice Jackson’s words echo the famous warning of Montesquieu, quoted by James Madison in The Federalist No. 47, that ‘there can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates’....” The Federalist No. 47, p. 325 (J. Cooke ed. 1961).”).

109. Congress exercised its Article I legislative authority to create the agencies of the federal government. See generally United States Code, Title 5 (Government Organization and Employees). To the agency heads, Congress has also expressly delegated the power to manage the functions of the agencies, including the right to employ and discharge subordinate employees of the agencies and to spend appropriated funds on those positions.

110. In addition to specific authorizing statutes, Congress has also generally authorized the heads of administrative agencies to make employment decisions (5 U.S.C. § 3101), manage the employees of that agency (5 U.S.C. § 301), or delegate to subordinate officers the management decisions, including the hiring and firing of employees (5 U.S.C. § 302).

111. Congress also made the federal administrative agencies subject to the requirements of the CSRA, which sets forth uniform rules pertaining to employment for the civil service across federal agencies. The agencies, led by their agency heads, are obligated by Congress to comply with the CSRA with respect to their employees.

112. The OPM Program requiring federal agencies to remove probationary employees throughout the federal government unlawfully usurps the legislative authority of Congress and is therefore ultra vires, by overriding the direct Congressional authorization of agency heads to manage the affairs and employees of their respective agencies, including by overriding each of the following statutes:

a. The authorization to all agencies to employ: 5 U.S.C. § 3101;

b. The authorization to all agencies to manage agency affairs via rules, including rules for employment: 5 U.S.C. §§ 301, 302;

c. The specific authorizing statutes for each federal agency, which create the office of agency head to administer the agencies, and enumerate the duties of the agency heads including with respect to employment: e.g., 26 U.S.C. §§ 7803, 7804 (IRS); 42 U.S.C. §§ 7231, 7253 (DOE); 20 U.S.C. § 3461 (Dept. of Ed.); 42 U.S.C. § 203 (HHS); 12 U.S.C. § 5492 (CFPB); 16 U.S.C. §§ 551, 554a, e (Agr.; Forest Service); 38 U.S.C. § 303, 510 (VA): 10 U.S.C. § 113 (DOD): 42 U.S.C. § 282 (NIH); 51 U.S.C. §§ 20111, 20113 (NASA).

d. The CSRA authorization to agencies that govern employee removal: 5 U.S.C. §§ 7512, 7513;

e. The CSRA provisions that apply to agency RIFs, which authorize OPM to create regulations by which agencies may conduct RIFs of their employees: 5 U.S.C. § 3502; see also 5 C.F.R. § 351.204 Responsibility of agency (“Each agency covered by this part is responsible for following and applying the regulations in this part when the agency determines that a reduction force is necessary.”); id. § 351.205 Authority of OPM (“The Office of Personnel Management may establish further guidance and instructions for the planning, preparation, conduct, and review of reductions in force.”).

113. OPM’s actions also exceed any statutory authority granted to it by Congress. In creating OPM and delegating duties to its Director, Congress did not authorize OPM or its Director to order the termination of employees at any other federal agency. See 5 U.S.C. § 1103 (authorizing Director of OPM to “appoint[] individuals to be employed by the Office” and “direct[] and supervis[e] employees of the Office, distribut[e] business among employees and organizational units of the Office, and direct[e] the internal management [of the Office”) (emphases added).

114. OPM’s actions were not authorized by any Article II Executive power, because no Article II constitutional power authorizes OPM to order federal agencies created by Congress to discharge subordinate agency employees, or to direct agencies to rely on false statements regarding employee performance to effectuate the discharged ordered by OPM.

115. Therefore, OPM’s order to the federal agencies to terminate probationary employees was issued without legal authority and is ultra vires.

Claim II: Administrative Procedures Act Section 706(2)(A) and (C) (Action Inconsistent with Law and Exceeding Statutory Authority)

The OPM Order to Terminate Probationary Employees Government-Wide Violates Statutes Governing Agency Powers and the CSRA

116. Plaintiffs incorporate by reference all preceding paragraphs as if fully set forth herein.

117. Plaintiffs Unions’ federal employee members are subject to the requirements of the OPM order that all federal agencies terminate probationary employees, and Plaintiffs and their members and supporters are persons who have suffered legal wrong as a result of, and have been adversely affected or aggrieved by, OPM and Acting OPM Director’s actions for purposes of 5 U.S.C. § 702.

118. OPM is an agency that Congress has made subject to the APA. 5 U.S.C. § 701. OPM’s mass termination program and order to federal agencies constitutes final agency action under the APA. 5 U.S.C. § 704.

119. Under the APA, a court shall “hold unlawful and set aside agency action” that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” (5 U.S.C. § 706(2)(A)), or that is “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right” (5 U.S.C. § 706(2)(C)).

120. The actions of OPM and its Acting Director, including but not limited to the OPM program requiring federal agencies to terminate probationary employees, violate the Administrative Procedure Act because they are inconsistent with law in violation of 5 U.S.C. § 706(2)(A), and exceed statutory authority, in violation of 5 U.S.C. § 706(2)(C), and are for those reasons also arbitrary and capricious in violation of 5 U.S.C. § 706(2)(A).

121. The actions of OPM and its Acting Director overriding the direct Congressional authorization of agency heads to manage the affairs and employees of their respective agencies, including by overriding each and every one of the following statutes:

a. The authorization to employ: 5 U.S.C. § 3101;

b. The authorization to manage agency affairs via rules, including rules for employment: 5 U.S.C. §§ 301, 302;

c. The specific authorizing statutes for each federal agency, which create the office of agency head to administer the agencies, and enumerate the duties of the agency heads including with respect to employment: e.g., 26 U.S.C. §§ 7803, 7804 (IRS); 42 U.S.C. §§ 7231, 7253 (DOE); 20 U.S.C. § 3461 (Dept. of Ed.); 42 U.S.C. § 203 (HHS); 12 U.S.C. § 5492 (CFPB); 16 U.S.C. § 551, 554a, e (Agr.; Forest Service); 38 U.S.C. §§ 303, 510 (VA): 10 U.S. C. § 113 (DOD): 42 U.S.C. § 282 (NIH); 51 U.S.C. §§ 20111, 20113 (NASA).

d. The CSRA authorization to agencies that govern employee removal: 5 U.S.C. §§ 7512, 7513;

e. The CSRA provisions that apply to agency RIFs, which authorize OPM to promulgate regulations by which agencies may conduct RIFs of their employees: 5 U.S.C. § 3502; see also 5 C.F.R. § 351.204 Responsibility of agency (“Each agency covered by this part is responsible for following and applying the regulations in this part when the agency determines that a reduction force is necessary.”); id., § 351.205 Authority of OPM (“The Office of Personnel Management may establish further guidance and instructions for the planning, preparation, conduct, and review of reductions in force.”).

122. OPM’s actions also exceed any statutory power or duties granted by Congress to OPM. In creating OPM and delegating duties to its Director, Congress did not authorize OPM or its Director to order the removal of employees employed by any other federal agency. See 5 U.S.C. § 1103 (authorizing Director of OPM to “appoint[] individuals to be employed by the Office” and “direct[] and supervis[e] employees of the Office, distribut[e] business among employees and organizational units of the Office, and direct[e] the internal management of the Office”) (emphases added).

Claim III: Administrative Procedures Act Section 706(2)(A) (Arbitrary and Capricious)

The OPM Order to Terminate Probationary Employees Government-Wide by Falsely Invoking Performance is Arbitrary and Capricious

123. Plaintiffs incorporate by reference all preceding paragraphs as if fully set forth herein.

124. Plaintiff Unions’ federal employee members are subject to the requirements of the OPM order to federal agencies to terminate probationary employees, and Plaintiffs and their members and supporters are persons who have suffered legal wrong as a result of, and have been adversely affected or aggrieved by, OPM and Acting OPM Director’s actions for purposes of 5 U.S.C. § 702.

125. OPM is an agency that Congress has made subject to the APA. 5 U.S.C. § 701. OPM’s order to federal agencies constitutes final agency action under the APA. 5 U.S.C. § 704.

126. The actions of OPM and its Acting Director, including but not limited to the OPM program requiring federal agencies to terminate probationary employees, violate the APA because they are arbitrary and capricious, in violation of 5 U.S.C. § 706(2)(A), for reasons that include the following: OPM’s actions are based on the fiction that the employees are being terminated for performance reasons; OPM’s actions are intended to deprive terminated employees of an administrative remedy; OPM’s actions required agencies to terminate employees immediately, often with only a few hours notice; OPM’s actions required agencies to violate commitments made to employees and the agency’s own plans for those employees; and OPM’s actions had no relationship to agencies’ staffing needs or statutory mandates.

Claim IV: Administrative Procedures Act Section 706(2)(D)
(Notice and Comment Rulemaking; Mass Termination)

The OPM Order to Terminate Probationary Employees Government-wide is Void for Failure to Comply with Required Notice and Comment Rulemaking

127. Plaintiffs incorporate by reference all preceding paragraphs as if fully set forth Herein.

128. Plaintiff Unions’ federal employee members are subject to the requirements of the OPM Program requiring federal agencies to terminate probationary employees and Plaintiffs and their members and supporters are persons who have suffered legal wrong as a result of, and have been adversely affected or aggrieved by, OPM and Acting OPM Director’s actions for purposes of 5 U.S.C. § 702. Had OPM followed notice-and-comment procedures required by the APA, Plaintiffs would have provided comments about the OPM Program.

129. OPM is an agency that Congress has made subject to the APA. 5 U.S.C. § 701. OPM’s order to federal agencies constitutes final agency action under the APA. 5 U.S.C. § 704.

130. Under the APA, a court shall “hold unlawful and set aside agency action …found to be …. without observance of procedure required by law.” 5 U.S.C. § 706(2)(D).

131. The OPM Order directing agencies to terminate probationary employees is a “rule” for purposes of the APA. 5 U.S.C. § 551(4).

132. Congress assigned to the Director of OPM the duty of “executing, administering, and enforcing—(A) the civil service rules and regulations of the President and the Office and the laws governing the civil service.” 5 U.S.C. § 1103(a)(5)(1). Congress also required that “in the exercise of the functions assigned under this chapter, the Director shall be subject to subsections (b), (c), and (d) of section 553 of this title.” 5 U.S.C. § 1105. Congress expressly made the requirements of section 553 apply to OPM actions “notwithstanding subsection (a) of such section 553,” which otherwise exempts “matter[s] relating to agency management or personnel or to public property, loans, grants, benefits, or contracts.” 5 U.S.C. § 553(a).

133. Notwithstanding the OPM Director’s express obligations pursuant to 5 U.S.C. §§ 1103 and 1105 to comply with notice and comment rule-making pursuant to the APA, neither OPM nor its Acting Director complied with the rule-making provisions set forth in 5 U.S.C. § 553 before issuing the OPM order directing agencies to terminate probationary employees.

134. OPM’s order directing agencies to terminate probationary employees therefore also violates 5 U.S.C. § 706(2)(D) by failing to observe procedures required by law.

Claim V: Administrative Procedures Act Section 706(2)(D)
(Notice and Comment Rulemaking; Email Reporting Program)

The OPM Program Requiring Federal Employees to Submit Reports by Email is Void for Failure to Comply with Required Notice and Comment Rulemaking

135. Plaintiffs incorporate by reference all preceding paragraphs as if fully set forth Herein.

136. Plaintiff Unions’ federal employee members are subject to the requirements of the OPM Program requiring federal employees submit e-mail reports to opm.gov reporting on “what you accomplished last week.” Plaintiffs and their members and supporters are persons who have suffered legal wrong as a result of, and have been adversely affected or aggrieved by, OPM and Acting OPM Director’s actions for purposes of 5 U.S.C. § 702. Had OPM followed notice-and-comment procedures required by the APA, Plaintiffs would have provided comments about the OPM Program.

137. OPM is an agency that Congress has made subject to the APA. 5 U.S.C. § 701. OPM’s new program for federal employee reporting constitutes final agency action under the APA. 5 U.S.C. § 704.

138. Under the APA, a court shall “hold unlawful and set aside agency action …found to be …. without observance of procedure required by law.” 5 U.S.C. § 706(2)(D).

139. The OPM’s new program for federal employee reporting is a “rule” for purposes of the APA. 5 U.S.C. § 551(4).

140. Congress assigned to the Director of OPM the duty of “executing, administering, and enforcing—(A) the civil service rules and regulations of the President and the Office and the laws governing the civil service.” 5 U.S.C. § 1103(a)(5)(1). Congress also required that “in the exercise of the functions assigned under this chapter, the Director shall be subject to subsections (b), (c), and (d) of section 553 of this title.” 5 U.S.C. § 1105. Congress expressly made the requirements of section 553 apply to OPM actions “notwithstanding subsection (a) of such section 553,” which otherwise exempts “matter[s] relating to agency management or personnel or to public property, loans, grants, benefits, or contracts.” 5 U.S.C. § 553(a).

141. Notwithstanding the OPM Director’s express obligations pursuant to 5 U.S.C. §§ 1103 and 1105 to comply with notice and comment rule-making pursuant to the APA, neither OPM nor its Acting Director complied with the rule-making provisions set forth in 5 U.S.C. § 553 before commencing OPM’s new program for federal employee reporting government-wide.

142. OPM’s new program for federal employee reporting therefore violates 5 U.S.C. § 706(2)(D) by failing to observe procedures required by law.

PRAYER FOR RELIEF

Wherefore, Plaintiffs pray that this Court:

1. Declare that OPM’s new programs 1) requiring federal agencies to terminate probationary employees and 2) requiring federal employees to report to OPM are unlawful;

2. Enter preliminary or permanent injunctive relief setting aside OPM’s order as unlawful; requiring Defendants, and all persons acting in concert with them, to cease terminations of probationary employees pursuant to OPM’s program and order; and requiring Defendants, and all persons acting in concert with them, to rescind the prior unlawful terminations of probationary employees pursuant to OPM’s Order.

3. Enter preliminary or permanent injunctive relief setting aside OPM’s order as unlawful; requiring Defendants, and all persons acting in concert with them, to cease requiring federal employees to report to OPM, and take no action against any employee who fails to respond to OPM’s instructions to report;

4. Award Plaintiffs their costs, reasonable attorneys’ fees, and other disbursements as appropriate;

5. Grant such other and further relief as the Court deems just and proper.

DATED: February 23, 2025

Scott A. Kronland
Stacey M. Leyton
Eileen B. Goldsmith
Danielle E. Leonard
Robin S. Tholin
James Baltzer
ALTSHULER BERZON LLP
177 Post St., Suite 300
San Francisco, CA 94108
Tel: (415) 421-7151

By: /s/ Danielle E. Leonard
Attorneys for Plaintiffs

Norman L. Eisen (pro hac vice forthcoming)
Pooja Chaudhuri (SBN 314847)
STATE DEMOCRACY DEFENDERS FUND
600 Pennsylvania Avenue SE #15180
Washington, DC 20003
Tel: (202) 594-9958
[email protected]
[email protected]

By: /s/ Norman L. Eisen
Attorneys for Plaintiffs
Rushab Sanghvi (SBN 302809)
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
80 F Street, NW
Washington, DC 20001
Tel: (202) 639-6426
[email protected]

By: /s/ Rushab Sanghvi
Attorneys for Plaintiff American Federation of Government Employees (AFGE)

Teague Paterson (SBN 226659)
Matthew Blumin (pro hac vice forthcoming)
AMERICAN FEDERATION OF STATE, COUNTY, AND MUNICIPAL EMPLOYEES
1625 L Street, N.W.
Washington, D.C. 20036
Tel: (202) 775-5900
[email protected]
[email protected]

By: /s/Teague Paterson
Attorneys for Plaintiff American Federation of State County and Municipal Employees (AFSCME)

_______________

Notes:

1 Application to Vacate the Order Issued by the U.S. District Court for the District of Columbia and Request for an Immediate Administrative Stay, Bessent v. Dellinger, No. 24A790, https://www.documentcloud.org/documents ... e=document at 27 (filed U.S. Supreme Court Feb. 16, 2025).

2 https://www.businessinsider.com/trump-a ... nsaffairs- agencies-2025-2

3 https://federalnewsnetwork.com/workforc ... ersacting- director-says/.

4 https://www.opm.gov/media/yh3bv2fs/guid ... nddetails- 1-20-2025-final.pdf

5 Id.

6 https://federalnewsnetwork.com/workforc ... employees/

7 https://www.whitehouse.gov/presidential ... overnment- efficiency-workforce-optimization-initiative/

8 Id.

9 https://thehill.com/homenews/administra ... ees-fired/

10https://www.cbsnews.com/news/federal-layoffs-probationary-workers-warnings-bigger-cuts-on-way/

11https://www.washingtonpost.com/politics/2025/02/14/trump-firing-probation-workforce-buyoutslayoffs- doge/f816fbea-eb23-11ef-969b-cfbefacb1eb3_story.html

12 https://www.reuters.com/world/us/mass-f ... overnment- 2025-02-13/; https://www.sfgate.com/california-parks ... otestmass- layoffs-20174425; https://www.nytimes.com/2025/02/18/clim ... iceworkers. html

13 Id.; https://www.washingtonpost.com/nation/2 ... rformance/

14 https://www.reuters.com/world/us/mass-f ... overnment- 2025-02-13/

15 https://www.wired.com/story/national-sc ... -firings/; https://www.nytimes.com/2025/02/18/us/p ... rings.html.

16 https://www.reuters.com/world/us/mass-f ... overnment- 2025-02-13/

17 https://www.businessinsider.com/federal ... sba-2025-2

18 https://www.reuters.com/world/us/mass-f ... overnment- 2025-02-13/

19 https://www.eenews.net/articles/doe-to- ... aff-today/

20 https://www.npr.org/2025/02/13/nx-s1-52 ... ion-energy

21 https://www.nbcnews.com/politics/white- ... bationary- employees-rcna192149

22 https://apnews.com/article/trump-firing ... offs-doge- 159a6de411622c2eb651016b1e99da37

23 https://www.nytimes.com/2025/02/18/us/p ... rings.html (1000 NPS employees)

24 https://www.nbcwashington.com/news/pres ... bationary- employees-fired-friday/3845749/

25 https://abcnews.go.com/US/agencies-fede ... =118901289

26 https://www.nytimes.com/2025/02/18/us/p ... rings.html

27 Id. (1300 Interior Dept employees fired over holiday weekend).

28 https://www.opb.org/article/2025/02/19/ ... continues- with-plans-to-eliminate-430-positions/

29 https://www.npr.org/2025/02/18/nx-s1-53 ... s-whokeep- food-safe-and-crops-growing

30 https://www.nytimes.com/2025/02/18/us/p ... ings.html; https://www.cnn.com/2025/02/14/politics ... index.html

31 https://www.cnn.com/2025/02/14/politics ... ringsdoge/ index.html

32 https://thehill.com/homenews/5154340-dh ... employees/

33 Id.

34 https://www.politico.com/news/2025/02/1 ... f-00204779

35 https://apnews.com/article/doge-faa-air ... cee31f3437

36 https://www.nbcphiladelphia.com/news/na ... ceptional- reviews-told-theyre-fired-for-performance-issues/4111423/?os=iosdF&ref=app

37 https://www.nytimes.com/2025/02/18/us/p ... ation.html (terminated workers “included people with specialized skills in infant formula safety and food safety response”; FDA food safety chief resigns because “loss of critical employees overseeing the nation’s food supply made his work impossible”).

38 https://www.politico.com/news/2025/02/1 ... y-00204715

39 Id.

40 https://www.fiercehealthcare.com/regula ... rsreports- say

41 Id.

42 https://www.reuters.com/world/us/fdic-f ... s-2025-02- 18/

43 Recent reporting by the Washington Post revealed similar templates and instructions by OPM to agencies in January and February 2025 with respect to employees unlawfully targeted for termination and/or administrative leave because of perceived participation in work related to Diversity, Equity, and Inclusion programs. Washington Post, Feb. 15, 2025, Records show how DOGE planned Trump’s DEI purge — and who gets fired next, available at: https://wapo.st/4jVWqEd.

44 https://www.msn.com/en-us/news/us/its-a ... rmination- letters/ar-AA1zcrmN?ocid=BingNewsSerp

45 https://www.nbcnews.com/politics/doge/f ... rcna192347

46 https://www.washingtonpost.com/nation/2 ... rformance/

47 https://www.nytimes.com/2025/02/15/clim ... fires.html

48 https://www.nytimes.com/2025/02/15/clim ... fires.html

[admin]

Trump's Lies Finally Catch Up to Him Over "Epstein Files"
by Tim Miller, Sam Stein, and Andrew Egger
The Bulwark
Feb 27, 2025 Bulwark Takes

Right-wing influencers were invited to the White House and handed binders labeled “Epstein Files,” sparking a wave of conspiracy-tinged speculation.

But what was actually in them?

Tim Miller, Sam Stein, and Andrew Egger break down the bizarre stunt, the MAGA obsession with Epstein conspiracies, and why this latest spectacle quickly unraveled. Plus, what does it say about the priorities of Trump’s DOJ?



Transcript

hey guys it's Tim Miller from the bullwark.
I'm here with managing editor Sam
Stein and Andrew Edgar who writes our
morning newsletter and is taping from
one of those like Studios where you got
your pictures with your family as a
child uh like a family photo there like
in oddly similar plant though yeah um
anyway uh it's good to see you guys uh
we it's unclear if we're in a real
Society right now uh but here's
something that happened today uh
pictured here is h a group leaving the
White House with binders that say
Epstein files binders full of raped
women I guess uh the people holding the
binders DC Dro Libs of tick tock and
these people don't have real names and
Liz wheeler they're right-wing
conspiracy mongers uh Lots has been
happening as Fallout to this it's been
challenging for me to monitor that but
luckily we've got Andrew and Sam here to
give us the uh the detail so what is
what's what is happening on the internet
let me kick it to our Epstein expert
Andrew EG oh yeah oh thank you yeah
these are your friends right didn't you
and DC Dro used to used to hang at
Hillsdale absolutely not no that's not a
real one um although one of the other
guys you did not mention who was also
who also received a binder of his own
was uh was Mike cernovich another one of
these one of these guys G exactly the
gorilla mindset man um who's been
hanging out in the White House Press
think he was with Pete he right um yeah
yeah so what is happening Andrew could
you explain to me what's happening okay
yeah so this is like a longstanding kind
of like red meat thing on the like very
very far conspiracy Fringe of of the
Maga movement is I mean it's the whole
epan didn't kill himself thing it's the
whole there's a big cover up of of uh
there's this long-standing basically
like kind of meme on the more
conspiratorial Fringe side of the magga
movement that Jeffrey epan didn't kill
himself that he is this kind of py for
for like this International uh ring of
pedophiles and rapists in high places
and that the government is sitting on a
bunch of information um um concerning
all of that it's it's this the Epstein
files is just how that conspiracy theory
is basically known and there's this
long-standing kind of long running thing
it's sort of connected to qanon it's
sort of connected to a lot of these
other kind of fringy some more trumpy
some not quite so trumpy movements
online uh where where it's basically
like you know they need to be released
they need to be found out they need to
be released and and a lot of times Trump
has been like throwing red meat to these
people or different influencers have
been throwing red meat to these people
for a long time and so I guess this
today was just the latest in a series of
those kinds of stunts where they invited
a bunch of Maga influencer type people
to the White House and then paraded them
out past the Press carrying these
binders but it all kind of instantly
fell apart and self-destructed and
became super weird online which I guess
maybe Sam wants to talk about s well I I
guess I before we get to how it's
self-destructed online I mean I I just
as a human in the world
and familiar with Jeffrey Epstein I mean
and elements of this were not
conspiracies right he did run a sex ring
I interviewed Julie Brown of the Miami
Herold who was one of the people that uh
uncovered a lot of this a while back a
reporter and so one of the just
questions I have looking at the binders
say I mean like the Jeffrey up files
could not fit in like a single three-
ring binder that you would uh you would
give your child that is going to
kindergarten you can't like fit the
epsteen fines in a track peer keeper I
mean there are many many court cases
over many decades overlapping think I
think the the files is in in the online
world is synonymous with uh some secret
list of people who actually were with
Jeffrey Epstein that we don't yet have
access to keep in mind we do know the
flight logs those have been made public
y there's elements of his diary that
have been made public there's been lists
of people who have uh you know had
relations with a guy Donald Trump's on
the list Bill Clinton's on the list like
you know there's lots of it's it's out
there and you know to to Andrew's Point
there's always a sort of Nefarious idea
that like well there's some actual like
real list out there and if it's exposed
the whole system's gonna come crashing
down and probably the and probably the
Jews are the ones who are responsible
for keeping it you know several texts
from people after the Julie Brown
interview I did about how I under I did
not give enough emphasis to the idea
that Epstein
was a is was part of the a Jewish spy oh
my people are all controlling just just
to be clear we are but we don't want to
talk about that so anyways today happens
and first of all I didn't really
understand why this suddenly like blew
up and it had to happen today but but
apparently it had to happen today and
Pam Bondi was just like I'm gonna bring
in some people she she previewed it last
night on Jesse Waters she's like new new
breaking news I'm going to release some
stuff tomorrow and was like okay what
are you releasing so they invited all
these influencers down they all walked
out holding these weird binders and then
people who like are even more into this
and care a lot about this were like wait
a second that's not like the stuff we
wanted and so representative Anna aolina
Luna was like hold up this is not the
stuff I thought we were gonna get that's
not right like we wanted more stuff and
then Pam bondi's office released a
letter to Benny Johnson and in it they
said the FBI is stonewalling our
requests for all the files and there's
deep Benny
Johnson yeah he he broke the letter okay
all right so they leaked the letter to
Benny Johnson of Turning Point USA Fame
of the Benny saying that saying that
they weren't getting cooperation from
elements of the FBI and she had written
cash Patel to tell cash that he needs to
get on the people at the FBI to give her
all the information and then Laura lomer
could I'm sorry before we get to Laura
lomer couldn't couldn't cash and uh and
and couldn't Pam and cash have like met
like doesn't cash work for Pam why is
she sending out a press release we're
also in week two like going could they
like had a meeting pick up the phone
pick up the [ __ ] phone here's kind of
the here's kind of the problem hold on
I'm on a roll hold on then Laura lumer
gets in and she's like there are no EP
FES like there's nothing here and then
the house Judiciary Committee the
Republican one which is like the
trolliest of the trollers they put out
TW what you want at the Judiciary
Committee yeah they put out a tweet be
like look the Epstein files have been
released they put a tiny URL and lo and
behold it's uh Rick Roll and so I don't
know let's Rick Roll our audience really
quick so that's that's where we're at
now Andrew could take it from here but
this is like clown show stuff I mean
honestly it's funny but it's like also
two serious elements one is these people
are are actually in charge right now
this isn't like a [ __ ] you know weird
internet frenzy [ __ ] this is the
Attorney General of the United States
sending a letter to the FBI director
being like hey help me get these epsteam
files it's like you guys have real
responsibilities take this [ __ ]
seriously and the second thing is it's
disrespectful to the actual victims
honestly it is like he had actual victim
you know this is such a I would throw on
top of that also interesting timing that
on the same day they decided to like
halfhazard Le release the supposed
Epstein files in the name of uh justice
uh for victims of child sex trafficking
they also welcomed alleged child sex
trafficker Andrew Tate back into America
Landing from Romania into Florida where
he'd been on house arrest for doing
again allegedly sex traffic
uh so some inconsistencies there and
Andrew what what what else are we miss
in here so to to me the the kind of the
bottom line with all this stuff is this
they have a big part of their base that
is essentially has essentially convinced
themselves that the Epstein thing will
not have been fully brought to light
until people like Barack Obama and Oprah
Winfrey and George Clooney are like
revealed and Hillary Clinton are
revealed to be like satanic pedophiles
right I mean like that that is kind of
like
that's the connection on stuff what
Hillary is what is Hillary doing with
the with the kids Hillary Hill is just
responsible she lesbian in this it might
not all be sexual you know there's
various blood rituals involved you know
adrenochrome that kind of stuff like but
but but but I mean my my point is that
like you can never you can never satisfy
the the kind of like urge for like quote
unquote transparency on the Epstein
vials until you have brought to light
you know the entire global pedophile
ring that includes all of your enemies
and so that I think that is the reason
why like you see this like constant kind
of cycle of like Revelation but then
more to come question mark like you see
the guys marching the binders out of the
room but then you also immediately see
the Pam Bondi thing like but wait what's
next what's the next thing what's the
next card that needs to be over the next
thing that needs to be Andrew how do
they account for Donald Trump's
proximity to Jeffrey Epstein uh that is
always the same thing which is that they
were Bros back in the day but then they
they point to the fact that that Trump
allegedly had had Epstein banned from
maril Lago in 2007 over some incident
there and that that's like that's like
when he caught on or something and and
and you know wrot wrote him out of his I
want to read some of some actual
reporting this is what people come to
the bullwark for so I'm on my girl my
girl Julie K Brown's Twitter feed but
before I get to her is um so have DC Dro
or Guerilla mindset or Libs of Tik Tock
have they have they revealed anything
that's in the binders you got to give
them a little time I mean they only got
the raw documents they got to come
through they got to put the put the
poster board together put all the string
up okay well well Sam looked at that a
few things from Julie Brown because I
think this is important her reporting
those involved in the Jeffrey Epstein
case for two decades fear of this case
and EP Epstein's victims are being used
for political purposes this isn't a news
story it's a publicity stunt as the
lawyer representing one of the victims
um she goes on the sexual abuse of
children is not funny or caused to hold
up files containing their Agony as if
it's some celebration I don't think that
she's going to shame the libs of Tik
Tock girl on that but it's a fair point
she also points out that as Sam did a
list has been public since 2015 all want
us to do is Google it um she wrote a
book about it ep's black book was
published so long ago that uh it could
be a child in school now uh and uh let's
see and then she does note I guess the
one area where Julie K Brown sides with
the sides with but like affirms what the
administration is saying is that Pam
bondi's letter to cash Patel does have
some elements of Truth in it she said
the FBI has hundreds of documents in its
vaults that are redacted that the Miami
Herald has repeatedly asked uh them to
justify their redactions and lift them
and that has not happened so maybe maybe
cash will get on that for us I don't
know Sam Sam have we seen anything from
DC Dro yet nothing yet on DC Drano no
nothing sorry it's interesting we'll see
who knows what'll come out I I would say
that hypothetically if you are the
president and you know that your
conspiracy adult follow are desperate
for new information to prove that their
enemies are all part of the secret
pedophile ring and that you weren't like
a good strategic move might be to bring
in four insane people and hand them
partial documents that don't mention you
yeah that might be just I just again
hypothetically if that was your motive
uh to try to like get people to look
over there um it seems
like you know this might be a tactic you
may
use I guess I mean I feel like this
whole thing is just a clown show and a
in a distraction and they'll never be
satisfied there's always going to be
something that's you know so here good
it's important that we have some
disagreement on the Bullock from time to
time CU we are often aligned a
distraction from what I I I hate when
call this stuff of distraction this is
the thing like Trump wants like there
it's not like there's like Trump has
this master plan where he's distracting
you from his secret plan underneath
everything is text with Trump he doesn't
have subtext like this is this is like
it this is they maybe distraction is the
wrong word but I do think they
constantly need to throw Chum in the
water to their conspiracists that's true
and if these guys I mean I think there's
always going to be a bunch of people out
there who just assume that the world is
run by dark satanic forces that if you
just get your people in place um you'll
finally get the revelations that you
sought for and so when I use the word
distraction what I meant is that you
know these people got what they wanted
they got the conspiracy loving they
wanted and they need to give them a
little Chum and so Pam Bondi literally
like two weeks into the job it's
ridiculous that this is what she's
focused on but she knows that she has to
throw them a little Chum and so she goes
on Jesse Waters and she says oh I got
breaking news coming tomorrow because
people are agitating her to release some
stuff and then she brings in you know a
half dozen weird conspiracy theorists to
get binders because she knows that they
are the ones that would you know jump on
it and feed feed the people who want
this Chum and so you just keep going
through it and keep giving them stuff
they'll be satisfied they'll never
believe anything there's always some
dark inferious force hiding the truth
and we'll just go through the cycle a
million times maybe my editor job for
everybody because you because you spark
a thought Sam about Bondi I mean so far
just like you're looking at the record
of the
doj like criminals
released violent comp beating criminals
released like quite a few dozen
criminals sex trafficking criminals
brought into the country too today um
criminals like
nabbed not not a ton so far I may it's
happening under the radar but we haven't
seen a ton of like a ton of progress but
you know it's only been a month five
weeks longest five weeks of my life
Andrew any final thoughts yeah I think
that like that is the sense in which
distraction is true right like because
because it's not like it's not like it's
distracting these people from like some
other stuff that they would like to be
paying attention to what they want is
distraction what they want is this kind
of like constant C of of rightwing magga
infotainment to to make them feel like
they are living like constantly on this
progression from one thing to the next
thing to the next thing that's all
leading somewhere right and and like
that that just like the constant
constant kind of unfolding and revealing
of of something uh they don't really
know where where it's going or what it's
heading to but it's it's the lived
experience of just being able to get
online and like see uh the Trump
Administration like pulling back the
curtain in some way is actively like
what they are looking for out of this
Administration is that is that that
sense that we're kind of all in this
thing together getting getting to it um
and and so like yeah it's it's not
meaningful in that way but it's not it's
not like it's distracting them from the
other stuff they would like rather be
paying attention to that's what they
want out of the administration and
that's why they're giving it to them
thank you Andrew Eder And samstein
subscribe to the feed and uh who knows
what we'll find out tomorrow'll see you
for DC Dano

[admin]

Kristi Noem Says $200 Million DHS Ad Campaign Thanking Trump Was His Idea: Trump’s Homeland Security Secretary said he instructed her to make ads that “thank me for closing the border”
by Andrew Perez, Asawin Suebsaeng
Rolling Stone
February 21, 2025
https://www.rollingstone.com/politics/p ... 235276324/


Kristi Noem stands in front of President Donald Trump during the signing ceremony for the Laken Riley Act on Jan. 29, 2025. Chip Somodevilla/Getty Images

NATIONAL HARBOR, Maryland — The Department of Homeland Security has budgeted up to $200 million to run anti-immigrant ads in the United States and overseas that repeatedly thank President Donald Trump for leading an immigration crackdown. Homeland Security Secretary Kristi Noem said Friday night that these ads were Trump’s idea, and during the administration’s transition to power, the president asked her to star in ads thanking him “for closing the border.”

Speaking at the Conservative Political Action Conference’s Ronald Reagan dinner on Friday night — at a tux and gown affair that served striploin, mashed potatoes, and raspberry cake — Noem recalled Trump telling her after she was nominated: “I want you to do [ads] for the border, and I want you to do those everywhere, not just in the United States, but I want them around the world. I want you to tell people not to come to this country if they’re going to come here illegally.”

She said the president continued: “We’re not going to let the media tell this story, because the media will never tell the truth. We’re going to run a marketing campaign to make sure the American people know the truth of what you’re doing.”

The ad campaign amounts to an extremely expensive taxpayer-funded propaganda blitz to scare off migrants and to flatter Trump on television. On Friday, Trump’s DHS secretary entertained the CPAC high-roller audience with her account of how Trump orchestrated the whole thing.

Noem said that Trump instructed that he didn’t want to be in the ads himself, telling her: “I want you in the ads, and I want your face in the ads … but I want the first ad, I want you to thank me. I want you to thank me for closing the border.”

She recalled: “I said, ‘Yes, sir, I will thank you for closing the border.’ So if you notice, in that ad, we thanked him for closing the border.”

The Homeland Security Department announced this week that it was launching ads “on radio, broadcast, and digital, in multiple countries and regions in various dialects.”

In the domestic version of the ad, Noem says: “Thank you, President Donald J. Trump, for securing our border, for deporting criminal illegal immigrants, and for putting America first. President Trump has a clear message for those that are in our country illegally, leave now, if you don’t, we will find you and we will deport you.” She adds that “under President Trump, America’s borders are closed to law-breakers.”

Noem noted on Friday that she used “strong language in those ads,” saying she told undocumented immigrants: “If you leave voluntarily, you may have the opportunity to have the American dream, but if we have to come looking for you and hunt you down, then you have lost that chance. And I don’t think there’s ever been a secretary that has said that before, much less a president, and these ads are running not just in the United States. They’re going to run in the Middle East. They’re going to run in Central America. They’re going to run throughout the world, letting the world know that America has a new leader.“

Trump’s pricey ad campaign to thank him and terrify immigrants and their families comes amid his broader purge of the federal government — in partnership with the world’s richest man, Elon Musk — as part of a supposed hunt for government waste, fraud, and abuse.

But the blanket suspension of congressionally appropriated funding that has been challenged and temporarily enjoined was the result of a categorical order, not any specific finding “about the possibility of waste and fraud.” Indeed, in defending the challenged action at the Court’s TRO hearing, Defendants did not even attempt to argue that the agency action was or could be justified based on waste or fraud. And, to date, Defendants have not adduced any evidence “about the possibility of waste and fraud” beyond conclusory statements like the one in their motion.

-- UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA, NATIONAL COUNCIL OF NONPROFITS, et al., Plaintiffs, v. OFFICE OF MANAGEMENT AND BUDGET, et al., Defendants. Civil Action No. 25 - 239 (LLA) MEMORANDUM OPINION

[admin]

The popularity of the ‘Mar-a-Lago face’ soars in Trump’s inner circle: Botox, visible facial fillers and exaggerated tans comprise the aesthetic popular among Donald Trump’s entourage. What’s behind this new fad?
by Marita Alonso
El Pais
FEB 24, 2025 - 09:00 EST
https://english.elpais.com/lifestyle/20 ... ircle.html

-- Brazil, directed by Terry Gilliam

Kimberly Guilfoyle, pictured at the 2024 Republican convention. Getty Images

During his first term in office, Donald Trump’s world was characterized by a uniform aesthetic; the women around him all had voluminous hair — the result of the so-called Texan blowout — eyelash extensions, slender silhouettes, a permanent tan and dresses from Chiara Boni La Petite Robe. This clone aesthetic has now gone further for both the men and women in Donald Trump’s orbit to include the so-called ‘Mar-a-Lago face.’

Mar-a-Lago is Trump’s Florida refuge in Palm Beach, a complex he acquired in 1985 and which, according to Joan López Alegre, a communications professor at the Universitat Abat Oliba CEU in Barcelona, is ideal for the U.S. president’s aesthetic. “Donald Trump left New York because there he was seen as a tacky millionaire, while in Florida, his aesthetic makes more sense,” he says. “Yet the decision is not aesthetic, but political. When he moved his residence from Trump Tower to Mar-a-Lago, he abandoned a state with a fixed Democratic majority for one that was then a swing state. Mar-a-Lago is a kind of a summer White House where he has created an alternative with a certain aesthetic.”

The so-called Mar-a-Lago face has undergone exaggerated Botox, visible facial fillers and extreme tanning. Social networks were responsible for this trend going viral by showing the before and after of several women in Donald Trump’s inner circle. Republican National Committee Chairwoman Lara Trump, Kimberly Guilfoyle, Donald Trump’s pick for ambassador to Greece, conspiracy theorist Laura Loomer and South Dakota Governor Kristi Noem all featured in this line-up highlighting the striking differences in their faces over time. “Their faces had all, over an unspecified period, morphed from conventionally human to makeup-caked, angular cheekboned, full-lipped, Fellini-esque exaggerations of the dolled-up Fox News anchorwoman look,” according to Hollywood Reporter journalist Julian Sancton. “And it’s not just the women: Few of us can remember the content of former Florida Rep. (and former prospective attorney general) Matt Gaetz’s RNC speech last summer, so fixated were we on the new elfin arc of his eyebrows. (And the less said about George Santos and his Botox habit the better.)”

Am I the only one that noticed that Matt Gaetz looks like Bruce Campbell's insane plastic surgeon character in Escape from LA?

"Because trafficking/raping kids when you have wrinkles on your face is obviously perverted and cannot be tolerated." -- un_theist

George Santos, allegedly in drag under the name ‘Kitara Ravache.’

Sancton notes that the look is indicative of Trump’s brash departure from the well-established norms of Washington DC and wonders if his return to the White House could be a challenge to the aesthetic discretion that reigned in 2024. “The Trump bubble is a counter-revolutionary movement that bucks the trends of the moment to become the new mainstream. It is a movement based on denying reality,” fashion and celebrity journalist Joan Callarissa tells EL PAÍS. “If they have a face they don’t like, they change it without caring if it looks natural or not, because reality does not matter to Trumpism. Traditionally, the right as a more central force tried not to be so flagrant, but given the current polarization of American society, it was impossible that the change would not also affect aesthetics. Polarization leads us to live in bubbles in which there is a marked tribal factor that means if the leaders have an artificial look, then so will those around them, because [the tribal bubble means] they only see people like themselves.”


Kristi Noem, Governor of South Dakota. Tom Williams (CQ-Roll Call, Inc via Getty Image)

Kristi Noem Was in Full Glam for New York’s ICE Raid, by Olivia Craighead


Kristi Noem Before Cosmetic Work

It is precisely this need to belong that Amanda Till, a Palm Beach-based tech entrepreneur, speaks of. She told The New York Post she had recently spent between $50,000 and $60,000 on Botox, facial fillers, thread lifts, different laser treatments and the Hydrafacial rejuvenation treatment offered by Dr. Norman Rowe, a plastic surgeon who has opened a new clinic in Florida, close to Mar-a-Lago, which he claims is booming thanks to Donald Trump’s electoral triumph.

“A lot of us who support the president want to look our best,” said Till, who is an increasingly regular visitor to Mar-a-Lago. “It makes you feel like you’re part of something. Everyone here is someone.” And it’s here, too, where everyone has to have a certain aesthetic that sets them apart from the rest of the world.

Trumpist eugenics?

-- Breeding Superman: Nietzsche, Race and Eugenics in Edwardian and Interwar Britain, by Dan Stone

-- War Against the Weak: Eugenics and America's Campaign to Create a Master Race, by Edwin Black

-- Eugenics and Other Evils, by G.K. Chesterton

-- Eugenic Policies, by Gregory W. Rutecki, MD

-- British Psychiatry: From Eugenics to Assassination, by Anton Chaitkin

-- Corradio Gini, from Italian Eugenics Under Fascism, from "The Oxford Handbook of the History of Eugenics" [Excerpt], edited by Alison Bashford, Philippa Levine

-- 1976: Government admits forced sterilization of Indian Women, by Native Voices

-- Eugenics Record Office, by Wikipedia

-- Eugenics: The Academy’s Complicity, by Dr. Nathaniel Adam Tobias Coleman

-- Galton Institute [Eugenics Education Society] [The Eugenics Society] [British Eugenics Society], by Wikipedia

-- Eugenic Sterilization: An Urgent Need, by Professor Dr. Ernst Rudin

-- History of Forced Sterilization and Current U.S. Abuses, by Kathryn Krase

-- International Federation of Eugenics Organizations [The Permanent International Eugenics Committee], by Wikipedia

-- Kaiser Wilhelm Institute of Anthropology, Human Heredity, and Eugenics, by Wikipedia

-- Neo-Malthusianism and eugenics in the struggle over meaning in the Spanish anarchist press, 1900-1936, by Jorge Molero-Mesa, Isabel Jimenez-Lucena, and Carlos Tabernero-Holgado

-- Society for Biodemography and Social Biology [American Eugenics Society] [The Society for the Study of Social Biology], by Wikipedia

-- The Eugenics Review, edited by Cora B.S. Hodson, Secty.; Alexander M. Carr-Saunders, Vice-Pres, Pres.; Eldon Moore; Ward Cutler; E.W. MacBride, Vice-Pres.; Maurice Newfield; Richard Titmuss; Dr. Blacker; Cedric Carter; Kathleen Hodson, by The Eugenics Society

-- The Eugenics Society archives in the Wellcome Library for the History and Understanding of Medicine, by Lesley A Hall

-- The Godfather of American Liberalism: H. G. Wells: novelist, historian, authoritarian, anticapitalist, eugenicist, and advisor to presidents, by Fred Siegel

-- Parenthood and Race Culture: An Outline of Eugenics, by Caleb Williams Saleeby

-- Eugenics in Evolutionary Perspective, by Sir Julian Huxley, M.A., D.Sc., F.R.S.

-- Evolution and Ethics and Other Essays, by Thomas H. Huxley

-- What is Eugenics?, by Leonard Darwin

Eugenics is the study and application of the biological laws of heredity aimed at perfecting the human species, and in one of his speeches, Donald Trump accused migrants of “poisoning the blood” of his country, using language reminiscent of Nazi eugenics. What if the Mar-a-Lago face was a kind of Trumpist eugenics in which the aesthetics went far beyond the surface?

Santiago Martinez Magdalena, a professor at the Public University of Navarra, explained in an essay that cosmetic procedures generate a specific, surgical kind of beauty linked to an aesthetic eugenics with “the Caucasian model as a hygienic and normative horizon, the choice of working models and the exposure of the body as the focal point.” He explains to EL PAÍS that its power lies in its ability to show itself, exerting visual influence over what is desirable to see and what is necessary to conceal. “That is, power removes things from the scene and replaces them with others (more worth seeing). Simply because power offers a stage. In this vein, racialization is an indelible stain, or an insolvent wound, that marks you forever and cannot be got rid of. At the same time, old age is a sign of decadence, of a lack of vigor, of illness and of loss of faculties, and therefore a loss of power,” he says.

The paradox lies in the fact that although mass access to cosmetics and cosmetic surgery would allow for a democratic homogenous look leading to a single body type, race, sexuality, and beauty, social class still persists. “They are the ones who write the social grammar, therefore they appear in the script as “the best,” the legitimate ones, the chosen ones, etc. Coupled with a distinguished lifestyle, I don’t find it strange that a Mar-a-Lago face is presented as royalty, with its histrionic court. That is to say, Trump and his kind need to brand themselves, flaunting a class wound. This is provided by surgery,” explains Santiago Martinez Magdalena.


Lara Trump photographed in Miami in August 2024. Ivan Apfel (Getty Images)

The message of excess

It is striking that precisely when the natural look is triumphing, offered by a series of treatments that are paradoxically highly visible yet hard to pinpoint, the Mar-a-Lago face advocates excess. “The fact that artificial beauty continues to challenge this growing natural trend surely depends on many variables, but let’s not rule out the fact that it is about identity and not only at an individual level, but also at a collective level: a label, like an aesthetic tattoo, that indicates what group you belong to. And let’s not forget the pressure to which we are socially subjected, especially women, due to the passage of time,” says Dr. Natalia Ribé, founder and medical director of the Dr. Natalia Ribé Institute.

Dr. Carlos Gómez, a general surgeon specialized in cosmetic and anti-aging treatments, shares her opinion. “When someone goes for that artificial look, they are often seeking a media “character” that gives people something to talk about and is controversial, and that is exactly what these people are looking for. Otherwise, it is difficult to understand that everyone in the same group – in this case, political – undergoes the same treatment.”

Toni Aira, a professor of political communication at UPF-Barcelona School of Management, flags up the fact that traditionally, in terms of political communication, it has always been recommended that any aesthetic treatment undergone by a high-profile politician should be subtle. “In the end, a politician has to be credible, and credibility is given, among other things, by the perception that the distance between what you are and what you say you are is negligible. Very radical changes in appearance can classically generate distrust towards a person in disguise, who hides, who says they are who they are not,” he explains.

Aira argues that because politics today is highly polarized, radical aesthetic change is not punished. “Now there are politicians that have been voted by a base that is looking for an extreme, something that openly transforms reality in a forceful way, so it [the aesthetic] seems coherent with a philosophy of radical change embraced by the politicians,” he says. “This happens with Trump’s orange makeup. That radicalism, that rupture, is practiced in substance and form through aesthetics as well.”


Far-right activist and advocate of bizarre conspiracy theories, Laura Loomer. The Washington Post (The Washington Post via Getty Images)

“In the world of Trumpist conservatism, there’s a lot of dogmatism and scorn directed at science, and in the face of that, there’s obviously going to be more homogenization, because critical thinking is done away with,” says Callarissa. “No one can criticize what the leaders of the movement do, and supporters will imitate it because of the tribal factor. While celebrities nowadays opt for a non-invasive aesthetic medical retouching because they want to look like their real me, Trumpism does the opposite. They operate in the opposite way to how they do it in Hollywood, as if to say: ‘You might want to hide the work you’ve had done but we don’t.”

While Sancton wonders whether we will see a rash of Mar-a-Lago faces among Trump voters, Joan Lopez Alegre makes a final point. “The Trump voter is no longer a conservative voter like the Bush voter, but a lower middle-class voter. It is not clear to me whether they want to be more like Romeo Santos or [Barbie’s] Ken.” But undoubtedly, Trump’s circle is very clear that Barbie and Ken are their references, because ‘more is more’ is their motto.

**************************

Jane Fonda ‘not proud’ she had a face-lift, encourages others not to fear aging: She said she stopped having plastic surgery because she didn't want to look "distorted."
by Lindsay Lowe
Aug. 3, 2022, 8:48 AM MDT
https://www.today.com/health/health/jan ... -rcna41293

Jane Fonda

Jane Fonda accepted the Cecil B. DeMille Award at the 2021 Golden Globes. Rich Polk / NBCU Photo Bank via Getty Images

Jane Fonda has some regrets about her previous plastic surgery.

“I had a face-lift and I stopped because I don’t want to look distorted. I’m not proud of the fact that I had (one),” the “Grace and Frankie” star, 84, said in a recent Vogue interview.

“Now, I don’t know if I had it to do over if I would do it. But I did it,” she continued. “I admit it, and then I just say, OK, you can get addicted. Don’t keep doing it. A lot of women, I don’t know, they’re addicted to it.”


Fonda, seen here in 2021, has been embracing the natural aging process. Axelle/Bauer-Griffin / FilmMagic

Fonda has long been candid about trying out plastic surgery over the years, sharing in a 2010 blog post that she had had “work done” on her chin, neck and under her eyes.

However, she swore off plastic surgery completely in 2020.

“I’m not going to cut myself up anymore,” she told Elle Canada at the time.

Now, she is urging younger people to “stop being afraid about getting older,” arguing that age is more about health than a number.

“My dad died six years younger than I am now. He seemed so old because he was ill. He had a heart disease. I’m not ill. So I’m almost 85, but I don’t seem that old,” she told Vogue. “Just because you’re a certain age doesn’t mean you have to give up on life, give up on having fun, give up on having boyfriends or girlfriends, making new friends, or whatever you want to do.”


Fonda said that "Grace and Frankie" gives people hope by showing an example of women living vibrant lives in their later years. Suzanne Tenner / Netflix

The actor and activist also acknowledged her privilege when it comes to staying in shape and having had the option to alter her looks over the years.

“Now as those words are coming out of my mouth, what I’m thinking with the second part of my brain is, 'Yeah, Fonda, you have money. You can afford a trainer. You can afford plastic surgery. You can afford facials. You can afford the things that help make you continue to look young,'” she said.

“That is true. Money does help," she added. "Good genes and a lot of money, as somebody once said. But then as I’m saying that, I’m thinking we all know a lot of women who are wealthy who’ve had all kinds of face-lifts and things like that and they look terrible.”

Fonda has embraced aging in various ways, including when she began rocking a silver pixie cut in 2020.

She also opened up about another perk of getting older in a recent interview with Andy Cohen, saying that for women, age often brings increased sexual confidence.

“Women, I think, tend to get better because they lose their fear of saying what they need,” she said. “When we get older it’s like, ‘No, I know what I want. Give me what I want.’”

[admin]

GOP gets RUDEST AWAKENING Yet at DISASTER TOWN HALLS
by Ben Meiselas
MeidasTouch
Mar 2, 2025

MeidasTouch host Ben Meiselas reports on Republicans getting protested and booed at more town halls as people are pissed at them and Trump.



Transcript

Donald Trump and the Maga Republicans
got more rude Awakenings at Town Halls
where the people Democrats Republicans
Independents people who are not
political are letting these Maga
Republicans have it they are pissed that
Medicade is getting cut that Elon Musk
is getting their private information
that uh the billionaires are getting
$4.5 trillion in tax cuts while our
federal government is being gutted I I
want you to watch this Maga Republican
Congress member Keith cell from Texas
here's what happened at his town hall
let's watch it the other one is the do
program
[Applause]
this is very
closely this is very closely again what
[Applause]
between to C 400,000
[Applause]
[Music]
next up our friend Democratic Congress
member Tom swazi from New York's thirdd
congressional district let's recall
though he's in a plus five uh Trump
District over here um and he's speaking
in Hemstead a reddish area on Long
Island um and here uh swazi talks about
the uh horrific horrific Oval Office
encounter where Donald Trump humiliated
himself and the United States by
attacking president zalinski with JD
Vance attacking zalinski as well as they
were laundering Putin's uh talking
points into the Oval Office now
Democratic Congress member Tom swazi
says look you know I'm one of these
Congress members was like let's all try
to get together let me find compromises
he's like this is not something we can
compromise about and this area which is
a reddish area on Long Island was uh
gave him a standing ovation let's watch
this listen everybody's freaking out
everybody's like you know I'm Mr like's
let's work together let's try and find
common ground and what happened in the
white house yesterday I was so pissed
off
[Applause]
I knew you had to get that out of your
[Applause]
system I I wanted you to get that out of
your
system so while all of that was taking
place you had Donald Trump vacationing
where else in mar-a-Lago golfing on the
taxpayer dime uh but then you had JD
Vance go to Vermont of course he's going
to go to a a blue State go to a red
State JD goes to uh Vermont to take uh a
vacation and let's just say that JD
Vance was met with a ton of pro Ukraine
protesters and other protesters as he
tried to go skiing in Vermont no JD
you're not going to get to run away from
we the people here I want to show you
this clip this is how Fox described what
was going down let's play it for vice
president JD Vance and his family
following yesterday's Fiasco there in
the Oval Office with Ukrainian president
sininsky there's some new video now we
have showing the vice president being
greeted by protesters holding anti Vance
pro-ukraine signs as he wakes his as he
makes his way there uh to Vermont for a
ski resort vacation more protesters met
the Vance Family outside of the resort
and the family ultimately had to move to
an undisclosed location take a look at
some of these signs we're talking about
thousands of people lying the street in
Vermont with signs like this Vance is a
Trader go ski in Russia Vance uses fake
syrup goodbye free world Trader Trump
loves Russia go ski in Russia you Trader
from protest to Vermont how about we go
to New York's 17th congressional
district where a republican Congress
member M Mike Lawler who tries to
pretend that he's Centrist but he's Maga
through and through and he's right there
gutting your Medicaid taking away your
uh benefits taking away your freedoms
and your rights and helping the
oligarchy here were protests to protect
Medicaid uh in New York 17th Republican
District play this clip Mike Lawler
doesn't give a damn that these children
will suffer that they will be denied
appropriate Medical
Care all right let's go from uh New York
to how about we take a look at Roger
Marshall in Kansas a Maga Republican uh
Senator um he walked out of his own town
hall let's just take a look at one of
the questions that he was asked let's
play this clip is doing right now as far
as cutting out those jobs a huge
percentage of those people and I know
you care about the
veterans are veterans yes and that is a
damn shame yes that is a damn I'm not a
Democrat but I'm worried about the
veterans
man
than well I yielded to um one of my my
elders and I appreciate his comments um
I think it's a great I'm not going to we
don't have time for everyone to stand up
I do got two more commitments today
appreciate everybody making the drive
out and God bless American thank
[Applause]
you pictures with you buddy right we're
going to vote you
out now in this next clip you can see uh
Senator Marshall uh Senator Marshall
leave the Kansas town hall early play
this clip
[Applause]
pictures you set up your picture Tak
thing we're going to take pictures with
you buddy right we're going to vote you
out what a
coward you see right here the types of
things that he's been posting Senator
Marshall uh America first it's he posts
the white house uh flag after uh the
zalinski debacle by Donald Trump uh
Senator Marshall uh the day before
posted thank you president Trump and
vice president fans for standing up for
America when they were attacking
zalinski and then Senator Marshall goes
not another Penny do not give Ukraine
any more money and the people let uh
Senator Marshall have it and he
literally ran away from his own town
hall as you saw right there here I want
to show you this as well this is how CNN
described uh vice president Vance
vacationing in a remote ski town in
Vermont where the protest lined the
street here's how CNN described it let's
play it however vice president JD Vance
is vacationing in a remote ski town in
Vermont and we did see some protests
today lining the streets including one
protester who held a sign that said go
ski in Russia traitor so very notable
there all right let's go to the ruest
red of red let's go to uh Tennessee
where you have mager Republican
representative
harshberger she got a harsh welcome over
there at her Town Hall video courtesy of
Christy Burke um she was asked uh well
she was saying to her people at the Town
Hall who were there there's been a
mandate for Trump we all love this hey
don't we love this and the people are
like
no watch this there's been a mandate to
the president from the American people
am I correct
no there's not a mandate by the American
people who
overwhelming 30% Congressional budget
office you know what it's going to be by
2035 it's going to be 59
trillion did I tell you did I tell you
got people who pay more taxes the top
four% of this country pays taxes more
taxes then the next uh question that uh
Maga Republican Congress woman
harshberger got was how much did you
take of elon's money and she goes Elon
doesn't get paid and people like yeah he
does Elon makes like uh what $ 38
billion do in government contracts 38
billion while he now gets access to your
Social Security data your Medicaid data
your medical records your tax records he
guts the government firing all of these
critical uh workers he then says he's
firing them for cause and strips them of
their dignity watch as Maga Republican
representative harburger tries to
Gaslight her own constituents play this
clip you take
out must then get paid $8 million a day
$8 million a day
it's projected I want you to listen and
I want to talk to you but you got to be
respectful but we want the truth I'm
giving you the truth but you said Elon
Musk doesn't make any money from our
government he makes $8 million a day
from government he has contracts that's
not my department honey if he has
contracts it's government contracts who
pays those government contracts
implemented in place before this year
when you listen to propaganda news and
you
[Music]
the let me ask you something how many of
you belong to a democratic uh agency
that had paid youcome none
[Music]
yourbody all right let's take a look at
a Virginia Town Hall where federal
workers made their voices heard as well
let's play it the email that came out
wanting us to justify our jobs with five
things we did last week was on Saturday
night and I was literally working on
Saturday night to make up for all the
distractions I had had the previous week
which came from the executive branch and
so I'm working trying to catch up on
things and then I get that email on top
of it it's very hard to keep your train
of thought when you're getting
threatened and harassed like that I
support the defense department and the
jobs that we do are so stressful and to
have this on top of it I mean I know
that that's their goal is to make it
miserable and don't forget about my
colleagues that are over seas and they
don't even know how they're getting home
and they're just being terminated I feel
like what they're doing is um sending
out these text messages you know saying
oh my God we've got to do X because this
is happening I can't I'm retired I can't
throw money unless I know what the money
is going to be used for should we go
back to Keith self Maga Republican
Congress member Keith self when he was
asked about the Medicaid cuts for a
second that audience was not he's in
Texas that audience was not buying what
he's selling because quite literally in
the budget it says
$880 billion in cuts for the Energy and
Commerce Committee what's in the Energy
and Commerce Committee these Maga
Republicans just think you're stupid
it's Medicaid is in there that's the
biggest thing in the Energy and Commerce
Committee so if you are forced to cut
800 80 billion you literally have to cut
Medicaid but here he is let's play the
clip
hi my name is Julia Chalker and I am
from Frisco this is my brother Bobby and
my friend Rachel and I would like to ask
a question about the cuts that we're
going to see in Medicaid and how they
are going to affect a lot of vulnerable
individuals including individuals with
disabilities and it's medic not a
handout it's a Lifeline that allows
people with disabilities to live
independently and are you aware that
cutting Medicaid is actually going to
end up costing more to serve these
individuals and a state support Living
Center it's $33,000 a month to serve
someone when it's 6,000 in the community
Through Medicaid waiver programs now
this these are exactly the kind of
people that Medicaid was made for and I
I tell you this is not anything that
will be touched in fact
all right I've been showing you these
Maga Republican Congress members getting
booed in the United States how about
should we go North to our neighbors in
the north our peaceful Neighbors in the
north who Donald Trump's attacking as
well Oh Canada stand on guard for thee
so when the star spangle Banner was sung
at a
WWE uh event in Toronto uh there let's
just say there were heavy heavy booze
[Music]
[Music]
I
[Music]
and folks as Donald Trump is out there
golfing once again and he's vacationing
working hard I guess to lower the
grocery prices as he's I'm making that
up as he's he is vacationing he ain't
lower in grocery prices they're getting
higher and higher and you saw the latest
Atlanta Federal Reserve report where
they are expecting a negative
1.5% growth in other words a massive
contraction a recession is coming when
the growth under former President Biden
was expected in the high twos and threes
in America GDP was surging in the first
quarter they're expecting a massive
decline in American GDP under Trump

*******************

Americans Are FURIOUS And It’s FREAKING Out GOP Reps At Their Town Halls
by Sam Stein, Lauren Egan and Andrew Egger
The Bulwark
Mar 3, 2025 Bulwark Takes

Americans are furious, and GOP reps are feeling the heat at their own town halls! Senator Roger Marshall faced a backlash in Kansas as voters grilled him on job cuts and veterans’ benefits. Sam Stein, Lauren Egan and Andrew Egger take on the major town hall backlash.



Transcript

hey guys me Sam Stein managing at at the
bull workk back again I'm joined by
Lauren eggan and Andrew Edgar and we are
going to talk town halls and what
exactly is happening at them uh before
we do it as always subscribe to the feed
it's the best feed on YouTube I've been
told uh Andrew Lauren thanks for joining
um let's start with you Andrew because
it was in morning shots um this clip
from over the weekend uh Senator Roger
Marshall of Kansas he's out and I guess
it's a fairly Republican part of the
state and he's just being kind of like I
don't want to say heckled I don't think
it's a heckling although how do you
define heckling I think he was just
being sort of like pushed by
constituents to not be okay with firing
a bunch of federal employees who many of
whom happen to be veterans and he gets a
little prickly uh describe what happened
uh and then we could address the
conspiracies surrounding these Town
Halls yeah so the the whole thing's a
bit of a roar shock because what happens
is Roger Marsh shows up and immediately
he gets there he's there there there are
a number of people who are not like from
that town they're still from Kansas not
from there say again how do they know
they're not from the town local media
okay talked to a lot of them after there
like a lot of people drove four or five
hours from Kansas City that kind of
thing but but uh but but and they're
they boo him when he first shows up and
they kind of never really stop it's a
very kind of prickly environment the
whole time but it is like a question and
answer environment it's not like they're
not letting him talk they're not
chanting or anything like that um you
know it's it's they are here to kind of
make their opinions heard and you know
ask him questions and he's there to uh
he obviously just kind of wants to be
talking to the Republicans from this
very Republican area that he has showed
up at and is kind of mad that anybody
else is there um so it's this it's this
very testy environment all the way
through um he calls them rude he says
they've been fed misinformation which is
kind of funny um and uh and then at the
end are still his constituents like
let's just declare he's the center of
the state you know like right right
right um but there's a reason why he
didn't up in Kansas City to do a town
hall right um but but at the very end
there's this clip that has gone very
viral and and and we can watch it is
doing right now as far as cutting out
those jobs a huge percentage of those
people and I know you care about the
veterans are veterans yes and that is a
damn shame yes yeah that is I'm not a
Democrat but I'm worried about the
veterans man yes
right well I yielded to um one of my my
elders and I appreciate his comments um
I think it's a great I'm not GNA we
don't have time for everyone to stand up
I do got two more commitments today
appreciate everybody making the drive
out and God bless America
[Applause]
[Music]
thank we're going to take pictures with
you buddy right we're going to vote you
out and what you see here is is like not
a very good look for him because this is
not one of those people right this is a
local man who has stood up to kind of
very just sort of politely and and sort
of sorrowfully talk about how how cut up
he is about the fact that doge is firing
veterans and he thinks it's you know he
sees it as an unintended consequence he
thinks it's it's the wrong way to cut
cost do we know if this guy's a local or
or transplant we know that local media
has identified him as a local I was not
able track him down myself um but but
but he was he was a local guy according
to uh Kansas news service which was on
the ground
there here's the thing like if this was
a one-off like I could see why they
would be like ah this is you know bunch
of people from Kansas City the radical
Kansas City popul uh but this is
happening all over the country well I G
to say all over country happening a lot
of Republican districts obviously we saw
it a couple weeks ago down in Georgia
but it's been happening everywhere um so
like what do they say about that Andrew
so this is the really interesting thing
right is like when these news reports
have cropped up Republicans have settled
into kind of a stock response here which
is that these are basically fake
protesters these are these are
democratic activists or people who have
been called as right say again it's
called AstroTurf right right right right
they've been astroturfed in put up to it
by different groups get do you
understand what AstroTurf
is the physical thing that they make
fake do you understand the phrase out of
really is like on one today know what's
going on yeah we know what as Turf
is God familiar with the the artificial
turf and the political term yeah I used
it in morning shots this morning you
okay did you get eight hours of sleep
okay I did not get my eight hours to for
for what it's worth try yeah I will but
anyway this is what this is what Roger
Marshall says himself right right the
next the next or that that same day his
office puts out a statement that
basically says these are a bunch of
democratic activists who got bu in they
couldn't have put Oakley Kansas where
this town hall was on a map and he says
real canons are super into the Doge
stuff like they're they're all about it
they're cheerleading they would
certainly never uh never yell at me
about it at a town hall and in fact I
ought to be commended for staying as
long as I did was what he are they are
we seeing any more uh Republicans like
limit their town hall availabilities now
I know that was a thing and I think
that's that's the thing that remains to
be seen right is like these things are
not going very well for them um and and
they have this kind of stock response of
like well you know why would we do this
when they're just going to get snowed
under by these activists anyway all
right so then Lauren this comes to you
because you've been looking into this
like is this like is this actually
AstroTurf right I mean Democrats
certainly are organizing around this
stuff I know yeah like the groups always
organize on both sides around these
kinds of town halls so like sure you're
indivisible move on they have been
showing up at some of these events but
like you know it's kind of like a combo
you have some groups organizing but
there's also like real organic
frustration from actual constituents
with some of what's going on I think
what Republicans are starting to see is
like the federal Workforce is Big there
are federal employees around the country
not just in the DC area some of them are
starting to lose their jobs and they're
pissed about it I just talked to like
one woman the other day who lives in uh
Mississippi and she just lost her job
she's a federal employee her husband was
a trump voter and he was kind of like
what the hell like I didn't vote for
this
and they're pissed off because like
they're like how are we going to pay our
mortgage now so right you know it's
Republicans it's like a cop out they're
trying to just like say it's all how
does this how does this work
operationally like indivisible or move
on or whoever like figures out where
these people are going to be and then
tells activist to go show up there yeah
well like the town halls are are you
know they're public events you have the
address I mean do you I feel like
they're not post I feel like they're not
doing town halls or they're hiding the
information around okay well in the Town
Halls are supposed to be public events
where you can show up to them right but
yeah like these groups have well you
know on their websites they'll like kind
of blast it out to their like chapters
around the country um so they're they're
definitely organizing to get people to
go but like it's not just first of all
also like one of the accusations that
these are like paid paid people that are
showing up which not
gr they're not go ahead sorry
I am on one today I'm so glad you can
admit it that's gross Real gross for
you they're not paid um but yeah they
help you know chapters across the
country figure out where these events
are you know even when they don't have
events too like like because what the
next recess is coming up in two weeks
and even the last recess some of the you
know typically during a recess you hold
a town town hall and some members are
starting to pull back on those and so
you know you've got your indivisible
move on they'd show up in those
districts and kind of like make a big
show out of the fact that so and so
isn't hosting a town hall because
they're afraid of answering tough
questions on Doge so just occurred to me
um that Joe Biden in his first
year no Democrats held Town Halls
because of covid right like it was just
you didn't have those types of
gatherings um and I think maybe to a
degree now I'm trying to remember this
but things really started fall apart
that summer uh for Biden because of the
um uh reemergence of Co and then of
course the Afghanistan uh draw down um
but maybe they could have benefited from
having Town Halls right like getting a
sense of where the voter anger was or
the voter sentiment was and certainly
this was the case with Obama right like
the town halls were an early indication
that things were going to go sideways
didn't prevent them from suffering
humiliating defeats in the midterms but
I don't know to me it seems like if
you're a member of Congress kind of want
those Town Halls to at least give you
some insight into where the voter
sentiment really lies right totally well
I guess in 2021 and 2022 we did have
like the school board stuff do you
remember oh right yeah Laden County
School boards yes yeah so there was that
I mean and that was a perfect example to
your point of like an early indication
of like the Dei backlash that we were
going to see if you are an elected
member of Congress who is you know
supposed to be responsive to your
constituents you would think you would
want to like you know gauge where
they're at on certain things so what's
got so then the next thing Andrew is
they have the the Trump speech tomorrow
night can't call it a state of the union
I guess not because it's not technically
a state of the union I don't know why
don't the first one isn't I don't know
why they do it this way why just call a
it's still the State of the Union
right more so than
ever yes uh I don't know what that means
but sure uh and then Democrats are all
bringing guests uh think the new the new
fat is bring a fired federal worker uh
with you to the State of the Union I
don't know is that going to move the
needle who knows but I guess this idea
is active confrontation with Republicans
over the fir fired Federal Workforce and
the employees and I agree with Lauren I
feel like it's underappreciated how
widespread the workforce actually is
like there's a reason that one of these
protests was outside of Atlanta the
cdc's in Atlanta thousand people were
laid off at the CDC like that's going to
matter for that region so is this thing
just going to grow is my guess probably
and there just going to be more
confrontations probably I don't know
what do you think Andrew well that's the
crazy thing about it is like yes it
doesn't seem like there's any reason to
believe this is going to slow down the
firings certainly are not slowing down
but at the same time Republicans seem to
be actively trying to kind of like cut
themselves off from any possibility of
of like taking any of this to Heart
right because they're they're selling
themselves this narrative I mean this is
like Republicans favorite thing to do in
recent years is to act like like kind of
signals that are coming in are actually
sort of like planted there by democrats
you don't have to pay attention to them
but like here there is a very real
possibility that what they are doing is
cutting themselves off from the ability
to Flinch away from real political pain
right because if if Republicans were to
get it through their heads right now
that some of this Doge stuff uh is third
rail stuff that's going to come back to
bite them I mean if they were to Pivot
away from do though right like because
we had that story where they were
privately sending letters to their
constituents being like we're going to
protect your privacy like I know this is
happening really fast but public they
can't do it yeah yeah but I mean that I
mean publicly is is a big part of it
right I mean that's the reason why a lot
of these guys are are mad is that
they're not standing up it's not like
Roger Marshall has all that much to do
with Doge right now doge is completely
uh you know unconstrained by anything
Congress is doing by anything the other
agencies are doing like what these
people are looking for is for someone to
stand up and like at least sort of make
the case for them publicly push back
publicly and things like that and so
like if if they were to Pivot right if
they were to start doing that kind of
thing now if they were to some end this
sort of indiscriminate pillaging of the
federal Workforce well it's 20 months to
the next election right that's a lot of
time to put this this political pain to
rest but because they don't seem like
they're able to feel that political pain
because they're selling themselves this
sort of an anesthetic story that it's
not real it's all AstroTurf it really
kind of raises the question whether they
will be able to to do that kind of well
maybe or maybe they just think it's
short-term pain and eventually the
populist will get used to this new
reality and it will turn around within
that 20 months right like maybe that's
just it like get it done with ripped the
Band-Aid off and then it's pretty
wishful
thinking if you're out of a job you're
like like I don't know how that yeah I
don't know yeah and it also just assumes
that everything that's gonna break is
like is just these fired people and not
all the things they were doing before to
keep goods and services all the we yeah
we don't know he's he's not a he's a
obviously a bias Source but one story
that popped up in my feed today that I
thought was you know if it's came to fro
would be really shocking was Martin Ali
who used to administer the Social
Security Administration uh he's he said
he's like look if these Cuts continue as
is people they're goingon to have to
miss a paycheck like we're gonna have to
see Social Security Miss payrick never
has happened before and um it's not
because they don't have the funds
there's a separate debate over whether
Social Security is self-sustaining I
don't want to get into it don't worry
about it it's because
operationally they don't have the people
to to administer the paychecks and if
that happens boy I mean people are going
to be livid like so pissed yeah
so pissed imagine just elderly voters
being like wait a second I need this to
literally buy
food that's bad can't imagine all right
we'll leave it on that uh Andrew Lauren
I'm sorry for my bad attitude I'm I'm
gonna work on that good night sleep it's
hard we're going to cut all that out the
viewers won't even know how you were
unvarnished s I'm not like a republican
lawmaker I don't hide from these things
okay they deserve it thank you guys and
thank you to the viewers for tuning in
appreciate it take
care hey YouTube Pam if you want to
support the bull workk the best way to
do it is by becoming a Youtube Bull
workk plus member the bull workk is
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overlords we're not settling any dumb
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so behave

[admin]

Part 1 of 2

United States District Court
Northern District of California

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, et al.,

Plaintiffs,

v.

UNITED STATES OFFICE OF PERSONNEL MANAGEMENT, et al.,

Defendants.

No. C 25-01780 WHA

Highlights:

On February 13 OPM communicated with the heads of several federal agencies in a private conference call. Neither the participants nor the contents of that call are directly in the record.

The next day, OPM sent an email to federal agencies’ chief human capital officers (and their deputies) stating:

Over the past several days, agencies have worked to review, clean up, and finalize their lists of probationary employees they wish to keep, and wish to terminate, and begin taking action.
We have asked that you separate probationary employees that you have not identified as mission-critical no later than end of the day Monday, 2/17. We have attached a template letter. The separation date should be as soon as possible that is consistent with applicable agency policies (including those in CBAs)….

The large-scale termination of probationary employees from myriad federal agencies followed. Plaintiffs contend that those employees were terminated at the direction of OPM….

In response to inquiries by the terminated employees, NSF’s chief management officer, Micah Cheatham, stated that “[w]e were directed last Friday [February 14] by OPM to terminate all probationers except for a minimal number of mission critical probationers” (id. at 18). Asked if NSF had attempted to negotiate with the administration to minimize the number of terminations, Cheatham responded: “There’s no negotiation” ….

We were told by OPM it was the agency’s discretion whether to remove probations or not. We chose to retain them all” (id. at 17). But “late Friday night,” “[t]hey told us that they directed us to remove probationers” (ibid.). “[T]here was no limited discretion. This is not a decision the agency made. This is a direction we received.”

Plaintiffs further allege that OPM ordered agencies to use template notices — supplied by OPM — to implement the ordered terminations, and that those templates falsely premised the en masse terminations on individual performance….Each stated that the recipient was fired because “[t]he Agency finds, based on your performance, that you have not demonstrated that your further employment at the Agency would be in the public interest”…

On February 14, a probationer terminated by the Foreign Agricultural Service asked USDA’s deputy chief human capital officer by email about the “specific details of my performance that were evaluated and found to be insufficient” (Blake Suppl. Decl., Exh. A at 1). The response: “[A]gencies were directed to begin providing termination notices . . . and directed [sic] the use of a specific template and language for the notice beginning immediately upon OPM notification”….

And our actions are being watched by OPM. So that’s, again, something else that’s unprecedented. . . . Everything we do is scrutinized. Everything is being looked at twice. Any changes that are made in our system that show any type of action that has been deemed impermissible, we have to respond to why it happened….

As many as 200,000 probationary federal employees are at risk of termination (Br. at 19). Those already terminated rank somewhere in the tens of thousands (ibid.). OPM and the federal agencies involved have not disclosed the number or identity of those terminated (even to their unions).

The ongoing, en masse termination of probationary employees across the federal government’s agencies has sown significant chaos. By way of example, Major General (Ret.) Paul Eaton states that the termination of over 1,000 employees across the VA has crippled the agency’s administration of the Veterans Crisis Line…When functioning as intended, the VCL offers our veterans, who suffer from high rates of post-traumatic stress disorder and suicide, 24/7 mental health care in moments of crisis (ibid). Don Neubacher, formerly the Superintendent at Yosemite National Park, states that the ongoing firing of National Park System probationers will inflict immediate, foreseeable harm onto our national parks and the habitats and animals therein (Neubacher Decl.)….

Plaintiffs in this action fall into two groups. First, the union plaintiffs: American Federation of Government Employees, AFL-CIO (AFGE); American Federation of Government Employees Local 1216; American Federation of Government Employees Local 2110; American Federation of State County and Municipal Employees, AFL-CIO; and United Nurses Associations of California/Union of Health Care Professionals, AFSCME, AFL-CIO. Second, the organizational plaintiffs: Main Street Alliance, Coalition to Protect America’s National Parks, Western Watersheds Project, Vote Vets Action Fund Inc., and Common Defense Civic Engagement….

Plaintiffs’ motion for a TRO seeks an order enjoining defendants from taking any actions to effectuate OPM’s probationary employee termination directive….

Plaintiffs are likely to succeed on their ultra vires claim. No statute — anywhere, ever — has granted OPM the authority to direct the termination of employees in other agencies. “Administrative agencies [like OPM] are creatures of statute. They accordingly possess only the authority that Congress has provided.”… Congress’s statutory scheme grants to each agency head the authority to manage their own affairs, including the hiring and firing of employees….

The same is true of OPM. Congress has vested its director with the authority to “secur[e] accuracy, uniformity, and justice in the functions of the Office,” “appoint[] individuals to be employed by the Office, and “direct[] and supervis[e] employees of the Office.”… But that’s it. OPM did not have the authority to direct the firing of employees, probationary or otherwise, in any other federal agency.

OPM concedes that it lacks the authority to direct firings outside of its own walls and argues, instead, that it “did not direct agencies to terminate any particular probationary employees based on performance or misconduct, and did not create a ‘mass termination program’” — it merely “asked agencies to engage in a focused review of probationers based on how their performance was advancing the agencies’ mission, and allowed them at all times to exclude whomever they wanted”…

Plaintiffs, meanwhile, have mustered a mountain of evidence that points in the other direction, from a broad range of federal agencies: “In accordance with direction from OPM . . . all DOD Components must terminate the employment of all individuals who are currently serving a probationary or trial period” (DOD), “[t]here was direction from the Office of Personnel Management” (VA), “agencies were directed to begin providing termination notices . . . immediately upon OPM notification” (USDA), “that was something that was directed from OPM” (IRS), “[w]e were directed last Friday by OPM” (NSF), “[t]hey told us that they directed us to remove probationers” (NSF) (emphases added). A full accounting is above. The weight of the evidence supports plaintiffs’ contention that OPM exceeded the bounds of its authority by unlawfully directing the mass termination of probationary employees across a wide range of federal agencies….

[T]he evidence supports the contention that OPM’s direction to other agencies fell outside its limited statutory authority….

OPM’s direction to the other agencies constituted a final agency action for the purposes of the APA. Plaintiffs have marshalled significant evidence from numerous agencies stating that they were acting at the direction of OPM….

Plaintiffs are also likely to show that the OPM directive was an arbitrary and capricious action….The key fact here is that the template letters sent from OPM to the directed agencies stated: “[T]he Agency finds, based on your performance, that you have not demonstrated that your further employment at the Agency would be in the public interest”… First, it is unlikely, if not impossible, that the agencies themselves had the time to conduct actual performance reviews of the thousands terminated in such a short span of time…“Reliance on facts that an agency knows are false at the time it relies on them is the essence of arbitrary and capricious decisionmaking.”….

Rules are subject to the notice and comment process prior to enactment…OPM’s January 20 memo and February 14 email are likely to constitute a “rule” under the APA…It is beyond cavil that they did not go through notice and comment rulemaking….

First, it is likely that the undersigned lacks jurisdiction to hear the union plaintiffs’ claims for the reasons stated in recent denials of similar claims made by unions representing federal employees….

[T]he Federal Labor Relations Authority (“FLRA”), a three-member agency charged with adjudicating federal labor disputes, reviews matters including negotiability and unfair labor practice disputes. When reviewing unfair labor practice complaints, the FLRA resolves whether an agency must bargain over a subject, violated the duty to bargain in good faith, or otherwise failed to comply with the Statute.

Direct review of the FLRA’s decisions is available in the courts of appeals….

If an agency takes a final adverse action against an employee — removal, suspension for more than 14 days, reduction in grade or pay, or furlough for 30 days or less — the employee may appeal to the Merit Systems Protection Board (“MSPB”). The MSPB may order relief to prevailing employees, including reinstatement, backpay, and attorney’s fees. Probationary employees, however, generally do not enjoy a right to appeal to the MSPB. Employees may appeal final MSPB decisions to the Federal Circuit, which has exclusive jurisdiction over such appeals. This statutory review scheme, too, is exclusive, even for employees who bring constitutional challenges to federal statutes….

The union plaintiffs and their members must adjudicate their claims through the FLRA and MSPB. The union plaintiffs’ claims “are the vehicle by which they seek to reverse the removal decisions, to return [members] to federal employment, and to [collect] the compensation they would have earned but for the adverse employment action.”… That the FLRA or MSPB may lack the authority to adjudicate the union plaintiffs’ constitutional and APA claims does not constitute a foreclosure on all meaningful judicial review: Those issues can be “‘meaningfully addressed in the Court of Appeals’ that Congress [has] authorized to conduct judicial review.”…

But a claim brought by Western Watersheds Project (WWP), for example, against OPM, alleging that the latter issued an unlawful, arbitrary and capricious rule that undermined the BLM’s ability to respond to WWP’s FOIA requests, does not feature a federal employee, their union representative, or their federal employer (in this example BLM). The plaintiff’s injury — frustration of its ecological mission — is equally ill-suited to adjudication by a labor board. True, the termination of a federal employee remains embedded within the dispute: WWP’s injury, it argues, occurred because OPM demanded, unlawfully, that the probationary employees at BLM be terminated. That, standing alone, is not enough to bring a claim within the scope of the statutory schemes created for the resolution of bargaining disputes and employee claims. Asked to provide a single example of a claim brought by a third party, against a third party, that had been administratively channeled via Thunder Basin, OPM could not. Such a rule would stretch that doctrine too far.

In sum, it is unlikely that this Court has jurisdiction over the union plaintiffs, but it likely does have jurisdiction to hear the claims of the organizational plaintiffs. This order moves to consider whether the latter group has standing….

“Aesthetic and environmental well-being, like economic well-being, are important ingredients of the quality of life in our society, and the fact that particular environmental interests are shared by the many rather than the few does not make them less deserving of legal protection through the judicial process.”…

The National Park Service has terminated close to 1,000 newly hired employees…

Based on my experience as a park Superintendent, the termination of so many NPS employees at once will have an immediate adverse impact on the parks and park visitors. For example, at Yosemite, the park will likely have to stop specific functions and close park areas. There is no way to accommodate current visitation levels without additional staff support during the upcoming peak season. When there was a partial government shutdown in 2018, visitors trashed scenic viewpoints, defecated outside locked restrooms and trampled sensitive ecological areas with their vehicles and dogs. The park receives annual visitation of over 4 million people….

Some of the likely, imminent harms laid out above have already come to pass. A member of the Coalition reported this week that they and their party were forced to abandon a trip to Joshua Tree National Park because the Black Rock Nature Center, which ordinarily provides shelter and commodes to the public, remained unstaffed and closed well after its scheduled opening time …

The Coalition has standing. Its members’ continued use and enjoyment of our national parks will likely be, and in at least one case already has been, injured by the terminations that have taken place at the National Parks Service.

Main Street Alliance likewise has representational standing. …A February 20 letter from the Ranking Member of the Senate Committee on Small Business and Entrepreneurship to the Administrator of the SBA cited reporting that hundreds of probationary SBA employees had been terminated across the country and stated that “through our own investigation and public reporting, we have learned that the fired employees included those supporting disaster assistance and oversight of loan programs”…. Some members who already have entered into contracts with the expectation of obtaining timely loan guarantees “are likely to be on the hook for expenses owed to contractors and suppliers without the ability to pay amounts owed”….

The Western Watersheds Project (the Project)….The Project has standing to challenge OPM’s directive to fire probationary employees at BLM and the U.S. Fish and Wildlife Service. Erik Molvar, a wildlife biologist formerly employed by the U.S. Forest Service and Army Corps of Engineers, and now the Project’s Executive Director, states that it “is a non-profit environmental conservation group that works to influence and improve public lands management”…

First, the Project has shown actual harm, namely that its ecological mission has been perceptibly impaired by the termination of employees at the BLM:…

Plaintiff VoteVets has standing. VoteVets is a “non-partisan, non-profit organization” that has “nearly 2 million supporters . . . with whom it regularly communicates about issues affecting veterans, including the operations, programs, and services available through the U.S. Department of Veterans Affairs”… The VA has “dismissed over 1,000 probationary employees,” “rais[ing] concerns about potential staffing shortages and the quality of care provided to veterans”… This shortage “has overwhelmed existing supervisors and affected the VCL’s ability to provide timely assistance to veterans in crisis.”…

Plaintiff Common Defense likewise has standing…

Responding to members questions, and working to determine what answers we can give to those members, diverts resources from Common Defense’s advocacy mission and core priorities, including working to expand ballot access at the state level, advancing initiatives to address climate change, and training and educating members….

OPM directed mass firings and plaintiffs each likely will be (or have been) injured as a result. Plaintiffs have each established a sufficient causal link between the mass termination of employees at the implicated agencies, and the imminent, foreseeable, and in some cases actual injuries that they face….

The partial closure and degradation of national parks constitutes likely, irreparable harm due to both environmental injury and loss of access…

Loss of access to essential government services also constitutes likely, and in some cases actual, irreparable harm. For example, the Veterans Crisis Line — an indispensable resource for our veterans in times of crisis — has been “overwhelmed” and its ability to provide care diminished for lack of staff… Its failure to meet the needs of our veterans presents the further likelihood of tragic results….

Finally, plaintiffs face irreparable harm because they have diverted significant or even all present resources to responding to the hardships created by the mass termination of probationary employees …

OPM’s assertion, meanwhile, that “[p]laintiffs have produced no credible evidence that terminations of federal employees have caused a disruption in critical government services” (ibid.) is refuted by the record, discussed at length in this memorandum’s consideration of standing….

“The preservation of the rights in the Constitution and the legality of the process by which government agencies function certainly weighs heavily in the public interest.”…

Based on the foregoing, the Court granted the following relief at the close of the February 27 argument: That OPM’s January 20 memo, February 14 email, and all other efforts to direct the termination of employees at NPS, BLM, VA, DOD, SBA, and NSF are illegal, invalid and must be stopped and rescinded. That OPM must communicate that decision to those agencies by the next day, February 27….

This memorandum amends the bench order to address two errors (the inclusion of the NSF, and the exclusion of FWS). The Court’s TRO is accordingly AMENDED to the following:

It is ORDERED that:

OPM’s January 20 memo, February 14 email, and all other efforts by OPM to direct the termination of employees at NPS, BLM, VA, DOD, SBA, and FWS are unlawful, invalid, and must be stopped and rescinded.

OPM shall provide written notice of this order to NPS [National Park Service], BLM [Bureau of Land Management], VA [Veteran's Affairs], DOD [Department of Defense], SBA [Small Business Administration], and FWS [Fish & Wildlife].

-- United States District Court, Northern District of California, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, et al., Plaintiffs, v. UNITED STATES OFFICE OF PERSONNEL MANAGEMENT, et al., Defendants. No. C 25-01780 WHA. MEMORANDUM OPINION AND ORDER AMENDING TRO. WILLIAM ALSUP

MEMORANDUM OPINION AND ORDER AMENDING TRO

STATEMENT

On January 20, 2025, Acting Director of the Office of Personnel Management Charles Ezell, defendant, issued a memo to department and agency heads directing them to identify all employees serving probationary periods by January 24, and to “promptly determine whether those employees should be retained at the agency.” Probationary employees are those who have served less than one year in the competitive service or less than two in the excepted service.

On February 13 OPM communicated with the heads of several federal agencies in a private conference call. Neither the participants nor the contents of that call are directly in the record.

The next day, OPM sent an email to federal agencies’ chief human capital officers (and their deputies) stating:

Over the past several days, agencies have worked to review, clean up, and finalize their lists of probationary employees they wish to keep, and wish to terminate, and begin taking action.

We have asked that you separate probationary employees that you have not identified as mission-critical no later than end of the day Monday, 2/17. We have attached a template letter. The separation date should be as soon as possible that is consistent with applicable agency policies (including those in CBAs).

(Dkt. No. 37-1).

The large-scale termination of probationary employees from myriad federal agencies followed. Plaintiffs contend that those employees were terminated at the direction of OPM.

Dr. Andrew Frassetto, for example, was hired as a program director at the National Science Foundation on September 9, 2024 (Frassetto Decl. ¶3). Dr. Frassetto and over 100 other NSF employees were terminated en masse during a Zoom meeting on February 18 (id. ¶ 10; Evans Decl. ¶28). A time-stamped transcript of that meeting, generated by an automated closed captioning system, is attached to Dr. Frassetto’s declaration (Exh. B). In response to inquiries by the terminated employees, NSF’s chief management officer, Micah Cheatham, stated that “[w]e were directed last Friday [February 14] by OPM to terminate all probationers except for a minimal number of mission critical probationers” (id. at 18). Asked if NSF had attempted to negotiate with the administration to minimize the number of terminations, Cheatham responded: “There’s no negotiation” (id. at 25).

In fact, when the NSF officials orchestrating the firings were confronted by the terminated probationers, they stated that “[ u]p until Friday [February 14]. Yes. We were told by OPM it was the agency’s discretion whether to remove probations or not. We chose to retain them all” (id. at 17). But “late Friday night,” “[t]hey told us that they directed us to remove probationers” (ibid.). “[T]here was no limited discretion. This is not a decision the agency made. This is a direction we received” (id. at 12) (emphasis added).

Plaintiffs further allege that OPM ordered agencies to use template notices — supplied by OPM — to implement the ordered terminations, and that those templates falsely premised the en masse terminations on individual performance. The Department of Agriculture, National Science Foundation, Federal Aviation Administration, Department of Veterans Affairs, and Department of Health and Human Services each issued substantially similar letters (Bachelder Decl., Exh. 1; Evans Decl., Exh. B; Ronneberg Decl., Exh. 1; Schwarz Decl., Exh. A). Each stated that the recipient was fired because “[t]he Agency finds, based on your performance, that you have not demonstrated that your further employment at the Agency would be in the public interest” (ibid. (emphasis added)). The empty template provided to DOD by OPM likewise declares — despite empty “[NAME]” “[TITLE]” and “[ORGANIZATION]” fields — that “the Agency finds, based on your performance, that you have not demonstrated that your further employment at the agency would be in the public interest” (Schwarz Decl., Exh. D).

Dr. Frassetto is again illustrative. In a February 13 performance review — five days before he was terminated “based on [his] performance” — Dr. Frassetto’s supervisor reported:

[H]is role [is] mission critical. Dr. Frassetto has been an outstanding program director, and he has taken the lead role in overseeing this important and complicated portfolio for the division. Dr. Frassetto came to NSF with a unique skill set in interdisciplinary scientific research . . . . He has already demonstrated an outstanding ability to balance the various aspects of his job responsibilities and is highly effective at organizing and completing all his work in an accurate and timely manner.

. . .

Dr. Frassetto’s work on this portfolio has been outstanding and he has brought important experience to the role and has demonstrated highly competent project management and oversight. He is a program director who has needed minimal supervision and eagerly seeks special assignments at higher levels of difficulty. He has been an outstanding contributor to the division, directorate, and agency.

(Frassetto Decl., Exh. A).

The NSF officials who fired Dr. Frassetto (and over 100 of his peers) via Zoom on February 18 stated: “The cause comes from boilerplate we received from OPM. The cause says that the agency finds based on your performance that you have not demonstrated that your further employment at the agency would be in the public interest” (Frassetto Decl., Exh. B at 21).

On February 26, 2025, Civilian Personnel Policy Council members at the Department of Defense (DOD) stated by email: “In accordance with direction from OPM, beginning February 28, 2025, all DOD Components must terminate the employment of all individuals who are currently serving a probationary or trial period” (Schwarz Decl., Exh. C at 1).

Tracey Therit, chief human capital officer for the VA, testified under oath at a congressional hearing before the House Committee on Veterans Affairs on February 25:

RANKING MEMBER TAKANO: So nobody ordered you to carry out these terminations?

You did it on your own?

MS. THERIT: There was direction from the Office of Personnel Management.

(Walls Decl. (Reply), Exh. A at 8).

On February 14, a probationer terminated by the Foreign Agricultural Service asked USDA’s deputy chief human capital officer by email about the “specific details of my performance that were evaluated and found to be insufficient” (Blake Suppl. Decl., Exh. A at 1). The response: “[A]gencies were directed to begin providing termination notices . . . and directed [sic] the use of a specific template and language for the notice beginning immediately upon OPM notification” (id. at 2).

In a “town hall” for IRS employees on February 21, the IRS’s chief human capital officer (CHCO) stated:

I’m not sure why it’s happening . . . . Regarding the removal of the probationary employees, again, that was something that was directed from OPM. And even the letters that your colleagues received yesterday were letters that written by OPM, put forth through Treasury, and given to us . . . . I cannot explain to you why this has happened. I’ve never seen OPM direct people at any agency to terminate.

(Lezra Decl., Exh. A at 4–5).

The IRS had to “get permission” to make even minor alterations to the template OPM termination letter:

There was a modification because we created our own email box for employees to send questions to HR directly after they separate. We felt it was important to have an avenue of communication open for them if they had questions about their final paycheck, or benefits, or leave payouts. So we did get permission to add that email in there.

(id. at 4–5). The IRS CHCO continued:

And our actions are being watched by OPM. So that’s, again, something else that’s unprecedented. . . . Everything we do is scrutinized. Everything is being looked at twice. Any changes that are made in our system that show any type of action that has been deemed impermissible, we have to respond to why it happened.

(id. at 3–4).

A termination letter received by a probationer at the Bonneville Power Administration (within the Department of Energy) stated: “Per OPM instructions, DOE finds that your further employment would not be in the public interest. For this reason, you are being removed from your position with DOE and the federal civil service effective today” (Schwarz Decl., Exh. B at 10 (emphasis added)).

As many as 200,000 probationary federal employees are at risk of termination (Br. at 19). Those already terminated rank somewhere in the tens of thousands (ibid.). OPM and the federal agencies involved have not disclosed the number or identity of those terminated (even to their unions) (ibid.).

The ongoing, en masse termination of probationary employees across the federal government’s agencies has sown significant chaos. By way of example, Major General (Ret.) Paul Eaton states that the termination of over 1,000 employees across the VA has crippled the agency’s administration of the Veterans Crisis Line (Eaton Decl. ¶¶ 8–9). When functioning as intended, the VCL offers our veterans, who suffer from high rates of post-traumatic stress disorder and suicide, 24/7 mental health care in moments of crisis (ibid). Don Neubacher, formerly the Superintendent at Yosemite National Park, states that the ongoing firing of National Park System probationers will inflict immediate, foreseeable harm onto our national parks and the habitats and animals therein (Neubacher Decl.). The Western Watershed Project, meanwhile, has already had its ecological mission frustrated, as terminations at BLM have rendered that agency unable to respond to the Project’s FOIA requests (Molvar Decl. ¶ 7).

* * *

Plaintiffs in this action fall into two groups. First, the union plaintiffs: American Federation of Government Employees, AFL-CIO (AFGE); American Federation of Government Employees Local 1216; American Federation of Government Employees Local 2110; American Federation of State County and Municipal Employees, AFL-CIO; and United Nurses Associations of California/Union of Health Care Professionals, AFSCME, AFL-CIO. Second, the organizational plaintiffs: Main Street Alliance, Coalition to Protect America’s National Parks, Western Watersheds Project, Vote Vets Action Fund Inc., and Common Defense Civic Engagement.

Plaintiffs filed a complaint for declaratory and injunctive relief on February 19, 2025 (Dkt. No. 1). Four days later, on February 23, they filed an amended complaint and moved for a temporary restraining order (Dkt. Nos. 17, 18).

First, plaintiffs argue that OPM directed federal agencies to fire probationary employees, and that the action was an ultra vires act because it exceeded the scope of OPM’s statutory authority, intruded upon the statutory authority of the individual federal agencies and their heads, violated the Civil Service Reform Act’s (CSRA) provisions governing agency terminations based on performance and reductions in force (RIFs), and violated the General Authority to Employ enacted by Congress (Dkt. No. 17 at 25–26). Second, plaintiffs argue that the OPM directive to terminate probationary employees constituted a final agency action that violated the APA because it exceeded the agency’s statutory or constitutional authority, was otherwise unlawful, was arbitrary and capricious, and did not undergo the necessary notice and comment process (id. at 26–30).

Plaintiffs’ motion for a TRO seeks an order enjoining defendants from taking any actions to effectuate OPM’s probationary employee termination directive.

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Part 2 of 2

ANALYSIS

The standard for a temporary restraining order is the same as that for a preliminary injunction. Stuhlbarg Int’l Sales Co. v. John D. Brush & Co., 240 F.3d 832, 839 n.7 (9th Cir. 2001). “A plaintiff seeking a preliminary injunction must establish that [1] he is likely to succeed on the merits, that [2] he is likely to suffer irreparable harm in the absence of preliminary relief, that [3] the balance of equities tips in his favor, and [4] that an injunction is in the public interest.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).

1. LIKELIHOOD OF SUCCESS ON THE MERITS.

A. PLAINTIFFS’ ULTRA VIRES CLAIM.

Plaintiffs argue that OPM’s termination directive constituted an ultra vires act that violated, and — unless recalled — continues to violate the scope of its and all impacted agencies’ statutory authority as established by Congress.

“The ability to sue to enjoin unconstitutional actions by state and federal officers is the creation of courts of equity, and reflects a long history of judicial review of illegal executive action, tracing back to England.” Armstrong v. Exceptional Child Ctr., Inc., 575 U.S. 320, 327 (2015). “Equitable actions to enjoin ultra vires official conduct do not depend upon the availability of a statutory cause of action; instead, they seek a ‘judge-made remedy’ for injuries stemming from unauthorized government conduct, and they rest on the historic availability of equitable review.” Sierra Club v. Trump, 963 F.3d 874, 890–91 (9th Cir. 2020) (citing Armstrong, 575 U.S. at 327), vacated and remanded on other grounds (mootness), 142 S. Ct. 46 (2021).

Plaintiffs are likely to succeed on their ultra vires claim. No statute — anywhere, ever — has granted OPM the authority to direct the termination of employees in other agencies. “Administrative agencies [like OPM] are creatures of statute. They accordingly possess only the authority that Congress has provided.” Nat’l Fed’n of Indep. Bus. v. Dep’t of Lab., 595 U.S. 109, 117 (2022). Congress’s statutory scheme grants to each agency head the authority to manage their own affairs, including the hiring and firing of employees. 5 U.S.C. § 3101 (“Each Executive agency, military department, and the government of the District of Columbia may employ such number of employees of the various classes recognized by chapter 51 of this title as Congress may appropriate for from year to year.”); 5 U.S.C. § 301 (“The head of an Executive department or military department may prescribe regulations for the government of his department, the conduct of its employees . . . .”); see also, e.g., 38 U.S.C. §§ 303, 510 (VA); 10 U.S.C. § 113 (DOD).

The same is true of OPM. Congress has vested its director with the authority to “secur[e] accuracy, uniformity, and justice in the functions of the Office,” “appoint[] individuals to be employed by the Office, and “direct[] and supervis[e] employees of the Office.” 5 U.S.C. § 1103(a)(1)–(3). But that’s it. OPM did not have the authority to direct the firing of employees, probationary or otherwise, in any other federal agency.

OPM concedes that it lacks the authority to direct firings outside of its own walls and argues, instead, that it “did not direct agencies to terminate any particular probationary employees based on performance or misconduct, and did not create a ‘mass termination program’” — it merely “asked agencies to engage in a focused review of probationers based on how their performance was advancing the agencies’ mission, and allowed them at all times to exclude whomever they wanted” (Ezell Decl. ¶ 7). OPM’s factual contention rests entirely on the Ezell Declaration.

Plaintiffs, meanwhile, have mustered a mountain of evidence that points in the other direction, from a broad range of federal agencies: “In accordance with direction from OPM . . . all DOD Components must terminate the employment of all individuals who are currently serving a probationary or trial period” (DOD), “[t]here was direction from the Office of Personnel Management” (VA), “agencies were directed to begin providing termination notices . . . immediately upon OPM notification” (USDA), “that was something that was directed from OPM” (IRS), “[w]e were directed last Friday by OPM” (NSF), “[t]hey told us that they directed us to remove probationers” (NSF) (emphases added). A full accounting is above. The weight of the evidence supports plaintiffs’ contention that OPM exceeded the bounds of its authority by unlawfully directing the mass termination of probationary employees across a wide range of federal agencies.

OPM’s Article II argument likewise rests on the factual contention that OPM’s actions constituted mere “guidance,” and is rejected on the facts (Opp. at 26). Article II, moreover, is irrelevant here. Congress’s statutory scheme created the agency, vested the agency with authority, and defined the bounds of that authority. It is an OPM action that is being challenged and, as explained above, the evidence supports the contention that OPM’s direction to other agencies fell outside its limited statutory authority.

B. PLAINTIFFS’ APA CLAIMS.

Plaintiffs have also shown that their APA claims are likely to succeed.

Under the APA, only “final agency action[s]” — those that “mark the consummation of the agency’s decisionmaking process” and determine “rights or obligations . . . from which legal consequences will flow” are subject to judicial review. Bennett v. Spear, 520 U.S. 154, 177–78 (1997) (cleaned up) (citing 5 U.S.C. § 704). OPM’s direction to the other agencies constituted a final agency action for the purposes of the APA. Plaintiffs have marshalled significant evidence from numerous agencies stating that they were acting at the direction of OPM.

As explained above, OPM’s direction to other agencies was not supported by any statutory authority. Plaintiffs are therefore likely to show that OPM’s directive constituted an agency action that was “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right” that must be “[held] unlawful and set aside.” 5 U.S.C. § 706(2)(C).

Plaintiffs are also likely to show that the OPM directive was an arbitrary and capricious action. Id. § 706(2)(A). “The scope of review under the ‘arbitrary and capricious’ standard is narrow and a court is not to substitute its judgment for that of the agency.” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). “Nevertheless, the agency must examine the relevant data and articulate a satisfactory explanation for its action including a ‘rational connection between the facts found and the choice made.’” Ibid. (quoting Burlington Truck Lines v. United States, 371 U.S. 156, 168 (1962)). The key fact here is that the template letters sent from OPM to the directed agencies stated: “[T]he Agency finds, based on your performance, that you have not demonstrated that your further employment at the Agency would be in the public interest” (Schwarz Decl., Exh. D). First, it is unlikely, if not impossible, that the agencies themselves had the time to conduct actual performance reviews of the thousands terminated in such a short span of time (Archuleta Decl. ¶ 14). It is even less plausible that OPM alone managed to do so. In at least one instance, a terminated scientist had received a glowing review — “[h]e has been an outstanding contributor to the division, directorate, and agency” — five days before he was terminated “for [his] performance” (Frassetto Decl., Exh. A at 1; Exh. C at 1). “Reliance on facts that an agency knows are false at the time it relies on them is the essence of arbitrary and capricious decisionmaking.” Missouri Serv. Comm’n v. Fed. Energy Regul. Comm’n, 337 F.3d 1066, 1075 (D.C. Cir. 2003).

Lastly, plaintiffs are likely to show that OPM failed to comply with notice and comment rulemaking. “‘Rule’ means the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency . . . .” 5 U.S.C. § 551(4). Rules are subject to the notice and comment process prior to enactment. 5 U.S.C. § 553. OPM’s January 20 memo and February 14 email are likely to constitute a “rule” under the APA (see, e.g., Dkt. No. 37-1 at 2) (“OPM believes ‘qualifications for continued employment’ in the current context means that only the highest-performing probationers in mission-critical areas should be retained.”). It is beyond cavil that they did not go through notice and comment rulemaking.

OPM’s counters on this point rely on the jurisdictional “channeling” of the organizational plaintiffs or the factual contention that OPM did not issue a directive and are rejected on those grounds.

C. SUBJECT-MATTER JURISDICTION.

First, it is likely that the undersigned lacks jurisdiction to hear the union plaintiffs’ claims for the reasons stated in recent denials of similar claims made by unions representing federal employees. See, e.g., Nat’l Treasury Emps. Union v. Trump, No. 25-CV-420 (CRC), 2025 WL 561080, at *5–8 (D.D.C. Feb. 20, 2025) (Judge Christopher Cooper) (denying TRO); Am. Foreign Serv. Ass’n, Inc. v. Donald Trump, No. 1:25-CV-352 (CJN), 2025 WL 573762, at *8–11 (D.D.C. Feb. 21, 2025) (Judge Carl Nichols) (dissolving TRO); Am. Fed’n of Gov’t Emps. v. Ezell, No. CV 25-10276-GAO, 2025 WL 470459, at *2 (D. Mass. Feb. 12, 2025) (Judge George O’Toole, Jr.) (dissolving TRO).

“Congress may preclude district court jurisdiction by establishing an alternative statutory scheme for administrative and judicial review.” Am. Fed’n of Gov't Emps. v. Trump, 929 F.3d 748, 755 (D.C. Cir. 2019). Congress set forth such statutory schemes by way of the Federal Service Labor-Management Relations Statute (FSLMRS) and the CSRA. The relevant statutory background has been summarized in National Treasury:

The Federal Service Labor-Management Relations Statute (“the Statute” or “FSLMRS”), set forth in Title VII of the Civil Service Reform Act (“CSRA”), governs labor relations between the executive branch and its employees. It grants federal employees the right to organize and bargain collectively, and it requires that unions and federal agencies negotiate in good faith over certain matters. The Statute further establishes a scheme of administrative and judicial review. Under that scheme, the Federal Labor Relations Authority (“FLRA”), a three-member agency charged with adjudicating federal labor disputes, reviews matters including negotiability and unfair labor practice disputes. When reviewing unfair labor practice complaints, the FLRA resolves whether an agency must bargain over a subject, violated the duty to bargain in good faith, or otherwise failed to comply with the Statute.

Direct review of the FLRA’s decisions is available in the courts of appeals. 5 U.S.C. § 7123(a).

. . .

Separately, the CSRA also established a comprehensive system for reviewing personnel action taken against federal employees. If an agency takes a final adverse action against an employee — removal, suspension for more than 14 days, reduction in grade or pay, or furlough for 30 days or less — the employee may appeal to the Merit Systems Protection Board (“MSPB”). The MSPB may order relief to prevailing employees, including reinstatement, backpay, and attorney’s fees. Probationary employees, however, generally do not enjoy a right to appeal to the MSPB. Employees may appeal final MSPB decisions to the Federal Circuit, which has exclusive jurisdiction over such appeals. This statutory review scheme, too, is exclusive, even for employees who bring constitutional challenges to federal statutes.

Nat’l Treasury, 2025 WL 561080, at *4–5 (cleaned up).

Under Thunder Basin Coal Co. v. Reich, a claim may fall outside of the scope of a special statutory scheme where “a finding of preclusion could foreclose all meaningful judicial review,” the claims considered are “wholly ‘collateral’” to a statute’s review provisions, or the claims are “outside the agency’s expertise.” 510 U.S. 200, 212–13 (1994). “These considerations do not form three distinct inputs into a strict mathematical formula. Rather, they serve as general guideposts useful for channeling the inquiry into whether the particular claims at issue fall outside an overarching congressional design.” Trump, 929 F.3d at 755 (cleaned up).

The union plaintiffs’ attempts to distinguish their instant claims from those channeled to the FLRA and MSPB in National Treasury, American Foreign Service, and Ezell are unconvincing, and the analysis laid out in those decisions applies with equal force here: The union plaintiffs and their members must adjudicate their claims through the FLRA and MSPB. The union plaintiffs’ claims “are the vehicle by which they seek to reverse the removal decisions, to return [members] to federal employment, and to [collect] the compensation they would have earned but for the adverse employment action.” Elgin v. Dep’t of Treasury, 567 U.S. 1, 22 (2012); Heckler v. Ringer, 466 U.S. 602, 614 (1984). That the FLRA or MSPB may lack the authority to adjudicate the union plaintiffs’ constitutional and APA claims does not constitute a foreclosure on all meaningful judicial review: Those issues can be “‘meaningfully addressed in the Court of Appeals’ that Congress [has] authorized to conduct judicial review.” Elgin, 567 U.S. at 17 (quoting Thunder Basin, 510 U.S. at 215). Both schemes “provide[] review in . . . an Article III court fully competent to adjudicate [plaintiffs’] claims.” Ibid.

Second, OPM argues that the CSRA and FSLMRS intended to channel all disputes that touch on a federal employment relationship to administrative review, no matter the party bringing such a dispute. But a claim brought by Western Watersheds Project (WWP), for example, against OPM, alleging that the latter issued an unlawful, arbitrary and capricious rule that undermined the BLM’s ability to respond to WWP’s FOIA requests, does not feature a federal employee, their union representative, or their federal employer (in this example BLM). The plaintiff’s injury — frustration of its ecological mission — is equally ill-suited to adjudication by a labor board. True, the termination of a federal employee remains embedded within the dispute: WWP’s injury, it argues, occurred because OPM demanded, unlawfully, that the probationary employees at BLM be terminated. That, standing alone, is not enough to bring a claim within the scope of the statutory schemes created for the resolution of bargaining disputes and employee claims. Asked to provide a single example of a claim brought by a third party, against a third party, that had been administratively channeled via Thunder Basin, OPM could not. Such a rule would stretch that doctrine too far.

In sum, it is unlikely that this Court has jurisdiction over the union plaintiffs, but it likely does have jurisdiction to hear the claims of the organizational plaintiffs. This order moves to consider whether the latter group has standing.

D. STANDING.

The Supreme Court has set the bar for standing as follows:

[T]he irreducible constitutional minimum of standing contains three elements. First, the plaintiff must have suffered an injury in fact — an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of — the injury has to be fairly traceable to the challenged action of the defendant and not the result of the independent action of some third party not before the court. Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.

Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992) (cleaned up; emphases added). Where plaintiff seeks prospective injunctive relief, he “must demonstrate that he has suffered or is threatened with a concrete and particularized legal harm, coupled with a sufficient likelihood that he will again be wronged in a similar way.” Fellowship of Christian Athletes v. San Jose Unified Sch. Dist. Bd. of Educ., 82 F.4th 664, 680–81 (9th Cir. 2023) (en banc) (quoting Bates v. United Parcel Serv., Inc., 511 F.3d 974, 985 (9th Cir. 2007) (en banc)). “[ i]n an injunctive case this court need not address standing of each plaintiff if it concludes that one plaintiff has standing.” Nat’l Ass’n of Optometrists & Opticians LensCrafters, Inc. v. Brown, 567 F.3d 521, 523 (9th Cir. 2009). Given the nature of this action and the injunction requested, however, it is necessary that standing be evaluated as to each organizational plaintiff.

“An organization has standing to bring suit on behalf of its members [“representational standing”] if ‘(1) at least one of its members would have standing to sue in his own right, (2) the interests the suit seeks to vindicate are germane to the organization’s purpose, and (3) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.’” Fellowship of Christian Athletes, 82 F.4th at 681 (quoting Fleck & Assocs., Inc. v. City of Phoenix, 471 F.3d 1100, 1105–06 (9th Cir. 2006)).

An organization has direct organizational standing, meanwhile, “where it establishes that the defendant’s behavior has frustrated its mission and caused it to divert resources in response to that frustration of purpose.” E. Bay Sanctuary Covenant v. Biden, 993 F.3d 640, 663 (9th Cir. 2021). “Of course, organizations cannot manufacture the injury by incurring litigation costs or simply choosing to spend money fixing a problem that otherwise would not affect the organization at all, but they can show they would have suffered some other injury had they not diverted resources to counteracting the problem.” Ibid. (internal quotation marks omitted); see also FDA v. All. for Hippocratic Med., 602 U.S. 367, 384–86 (2024). At bottom, the test is whether an organization’s ability to perform the services they were formed to provide has been “perceptibly impaired” by the challenged action. E. Bay Sanctuary Covenant v. Trump, 932 F.3d 742, 765 (9th Cir. 2018) (cleaned up).

(i) The Coalition to Protect America’s National Parks (The Coalition) and Main Street Alliance (MSA).

“Aesthetic and environmental well-being, like economic well-being, are important ingredients of the quality of life in our society, and the fact that particular environmental interests are shared by the many rather than the few does not make them less deserving of legal protection through the judicial process.” Sierra Club v. Morton, 405 U.S. 727, 734 (1972). In Desert Citizens Against Pollution v. Bisson, for example, BLM sought to exchange 1,745 acres of federal land in Imperial County for a 2,642-acre parcel in the Santa Rosa and Little Chuckwalla Mountains owned by Gold Fields, a mining company. 231 F.3d 1172, 1175 (9th Cir. 2000). Gold Fields aimed to turn the Imperial County tract into a landfill; the members of Desert Citizens aimed to save it from that grim fate via an APA action. Ibid. Our court of appeals held that the members’ continued use of the federal lands established an injury in fact: “The recreational or aesthetic enjoyment of federal lands is a legally protected interest whose impairment constitutes an actual, particularized harm sufficient to create an injury in fact for purposes of standing.” Id. at 1176 (citing Sierra Club, 405 U.S. at 734).

The National Park Service has terminated close to 1,000 newly hired employees (Neubacher Decl., Exh. A). Coalition board member Don Neubacher, the former Superintendent at Yosemite National Park (2010–2016) and Point Reyes National Seashore (1995–2010) submitted a declaration stating:

The Coalition to Protect America’s National Parks (“Coalition”) is a non-profit organization made up of over 3,400 members, all of whom are current, former, and retired employees and volunteers of the National Park Service. Together, they have accumulated over 50,000 years of experience caring for America’s most valuable natural and cultural resources. . . . Our members and their families are regular and avid users of the National Park System who would be adversely affected by any degradation of the parks or the programs of the NPS to preserve and protect the parks and make them available to visitors. Based on my experience as a park Superintendent, the termination of so many NPS employees at once will have an immediate adverse impact on the parks and park visitors. For example, at Yosemite, the park will likely have to stop specific functions and close park areas. There is no way to accommodate current visitation levels without additional staff support during the upcoming peak season. When there was a partial government shutdown in 2018, visitors trashed scenic viewpoints, defecated outside locked restrooms and trampled sensitive ecological areas with their vehicles and dogs. The park receives annual visitation of over 4 million people.

(Neubacher Decl. ¶¶ 2–5 (emphasis added)). In a separate declaration, Jonathan B. Jarvis, the former Director of the National Parks Service, underscores the immediacy and scope of the harm to park operations, environmental protection, and natural resource monitoring (Dkt. No. 18-11). Some of the likely, imminent harms laid out above have already come to pass. A member of the Coalition reported this week that they and their party were forced to abandon a trip to Joshua Tree National Park because the Black Rock Nature Center, which ordinarily provides shelter and commodes to the public, remained unstaffed and closed well after its scheduled opening time (Neubacher Suppl. Decl. ¶ 4).

The Coalition has standing. Its members’ continued use and enjoyment of our national parks will likely be, and in at least one case already has been, injured by the terminations that have taken place at the National Parks Service.

Main Street Alliance likewise has representational standing. MSA is a “national network of small businesses, with approximately 30,000 members throughout the United States. MSA helps small business owners realize their full potential as leaders . . . with the aim of creating an economy where all small business owners have an equal opportunity to succeed” (Phetteplace Decl. ¶¶ 2–3). “MSA’s small business members rely on the U.S. Small Business Administration (‘SBA’) for a variety of valuable services that help small businesses succeed. These services include loans, loan guarantees, and grants; disaster relief; assistance in connecting small businesses with government contracting opportunities; and a national network of some 1,000 Small Business Development centers that provide counseling and training to help entrepreneurs start their own businesses” (id. ¶ 4). A February 20 letter from the Ranking Member of the Senate Committee on Small Business and Entrepreneurship to the Administrator of the SBA cited reporting that hundreds of probationary SBA employees had been terminated across the country and stated that “through our own investigation and public reporting, we have learned that the fired employees included those supporting disaster assistance and oversight of loan programs” (id. Exh. A). MSA asserts that the mass terminations at the SBA are likely to impair disaster relief, the provision of loan guarantees, and other services necessary for MSA’s members to open a business or stay float (id. ¶ 9). Some members who already have entered into contracts with the expectation of obtaining timely loan guarantees “are likely to be on the hook for expenses owed to contractors and suppliers without the ability to pay amounts owed” (id. ¶ 8).

(ii) The Western Watersheds Project (the Project).

In Havens Realty Corp. v. Coleman, an organization “whose purpose was to make equal opportunity in housing a reality in the Richmond Metropolitan Area,” HOME, brought a Fair Housing Act claim against Havens Realty, which owned and operated apartment complexes in Richmond. 455 U.S. 363, 368 (1982) (internal quotation marks omitted). HOME asserted that Havens Realty’s unlawful “racial steering” — providing false information regarding the availability of housing to black individuals to maintain a segregated property — had frustrated its mission and, critically, its housing counseling service. Id. at 367, 369. The Supreme Court rejected Haven Realty’s standing challenge, holding:

If, as broadly alleged, petitioners’ steering practices have perceptibly impaired HOME’s ability to provide counseling and referral services for low-and moderate-income homeseekers, there can be no question that the organization has suffered injury in fact. Such concrete and demonstrable injury to the organization’s activities — with the consequent drain on the organization’s resources — constitutes far more than simply a setback to the organization’s abstract social interests.

Id. at 379 (citing Sierra Club, 405 U.S. at 739).

The Project has standing to challenge OPM’s directive to fire probationary employees at BLM and the U.S. Fish and Wildlife Service. Erik Molvar, a wildlife biologist formerly employed by the U.S. Forest Service and Army Corps of Engineers, and now the Project’s Executive Director, states that it “is a non-profit environmental conservation group that works to influence and improve public lands management” (Molvar Decl. ¶¶ 3–4). Founded in 1993, the group has some 14,000 members, with field offices in Idaho, Montana, Wyoming, Arizona, Nevada, and Oregon. The group is primarily focused on “the negative impacts of livestock grazing” (ibid.). The group is also an active litigant in the federal courts, where it advocates against commercial grazing on public lands. See, e.g., W. Watersheds Project v. Kraayenbrink, 632 F.3d 472 (9th Cir. 2011); W. Watersheds Project v. Abbey, 719 F.3d 1035 (9th Cir. 2013); W. Watersheds Project v. Interior Bd. of Land Appeals, 62 F.4th 1293 (10th Cir. 2023); W. Watersheds Project v. U.S. Forest Serv., 603 F. App’x 612 (9th Cir. 2015) (mem.).

First, the Project has shown actual harm, namely that its ecological mission has been perceptibly impaired by the termination of employees at the BLM:

This mass termination of employees will have an immediate adverse effect on the ability of the [Project] to accomplish its mission.

For example, I was told by a federal employee on February 20, 2025, that because of staffing issues the Bureau of Land Management is unable to respond to a Freedom of Information Act request submitted by the [Project]. Our work depends on timely access to public records.

(Molvar Decl. ¶¶ 7–8). The termination of range managers and biologists, meanwhile, will diminish BLM’s ability to provide timely “land health assessments to monitor the impact of cattle and sheep grazing on public lands,” further undercutting the Project’s ability to pursue its stated goals (id. ¶ 8).

Second, the Project has shown harm to both its members’ protected interests in and its own efforts to advocate on behalf of endangered species. The Project is a party in an ongoing litigation in the District of Montana (Molvar Suppl. Decl. ¶ 3). Ctr. for Biological Diversity v. Haaland, No. 23-cv-02-BU-DLC (D. Mont.) (Judge Dana Christensen). There, the Project (and its co-plaintiffs) challenged a 2020 finding from the FWS concerning the Missouri River Distinct Population Segment of Arctic grayling, a freshwater fish with precious little habitat left, under the Endangered Species Act (Molvar Suppl. Decl. ¶ 3). Following a partial grant of summary judgment in the plaintiffs’ favor, Judge Christensen ordered FWS to make a new finding regarding the status of the upper Missouri River Basin Distinct Population Segment of Arctic grayling by August 2025. Haaland, No. 23-cv-02-BU-DLC, Dkt. No. 52 at 53. On February 12 the FWS sought and received an extension of that deadline to February 2027 (Molvar Suppl. Decl. at ¶ 3). In a declaration to Judge Christensen, the FWS conditioned their ability to meet that new deadline on the “assumption[]” that “the Service will continue to have the authority to hire and retain sufficient listing program staff to be able to carry out the specified commitments.” Haaland, No. 23-cv-02-BU-DLC, Dkt. No. 63-1 ¶ 15. The Project represents that, as of February 26, some 400 FWS employees have been terminated (Molvar Suppl. Decl. ¶ 3).

Executive Director Molvar, himself a member of the Project, frequently fishes for Arctic grayling in the lakes of the Sapphire Mountains, in Glacier National Park, and in Alaska (id. at ¶ 9). He plans to do so again during a planned July 2025 trip to Alaska (ibid.). Under Sierra Club and its progeny, therefore, the Project has standing to vindicate its members’ legally protected interest in the recreational enjoyment of federal lands and the flora and fauna therein.

(iii) Vote Vets Action Fund Inc. (VoteVets) and Common Defense Civic Engagement (Common Defense).

In Fellowship of Christian Athletes, an international student ministry challenged the defendant school district’s decision to bar its local chapter from formal “recognition” as a student-run organization by the Associated Student Body (ASB). 82 F.4th at 681. The FCA stated it was an international “ministry group formed for student athletes to engage in various activities through their shared Christian faith” that operates through more than 7,000 local chapters. Id. at 671–72. Their stated mission was to equip “student athletes from all backgrounds for fellowship, spiritual growth, and service on their campuses.” Ibid. FCA required that students serving in a leadership capacity affirm certain religious beliefs through a “Statement of Faith” (stating, among other things, that “marriage is exclusively the union of one man and one woman”) and a “Sexual Purity Statement.” Id. at 672–73. The defendant school district, citing the “discriminatory nature” of both statements, first stripped the club of its recognition as an official student club, and then imposed new “non-discriminatory criteria” for all student clubs, under which the local FCA chapter would be denied recognition in future years. Id. at 675, 678–79. While FCA’s local chapter remained on campus, it lost out on certain campus privileges. See id. at 673.

Our court of appeals, sitting en banc, held that the FCA’s national office had direct organizational standing because the local chapter’s exclusion from the benefits associated with ASB recognition — access to fundraisers, the student yearbook, priority access to meeting spaces, and so on — “undoubtedly hampered,” id. at 683, the FCA’s mission “to lead every coach and athlete into a growing relationship with Jesus Christ and His church,” id. at 672. The FCA’s national office moreover, “had to ‘divert[] resources’ in ‘counteracting the problem’ posed by the derecognition,” including “a huge amount of staff time, energy, effort, and prayer that would normally have been devoted to preparing for school or ministry.” Ibid.

Plaintiff VoteVets has standing. VoteVets is a “non-partisan, non-profit organization” that has “nearly 2 million supporters . . . with whom it regularly communicates about issues affecting veterans, including the operations, programs, and services available through the U.S. Department of Veterans Affairs” (Eaton Decl. ¶3). The VA has “dismissed over 1,000 probationary employees,” “rais[ing] concerns about potential staffing shortages and the quality of care provided to veterans” (id. ¶ 8). For example, “the layoffs have hindered the recruitment of essential support staff for VCL positions such as trainers and quality assurance personnel” (id. ¶ 9). This shortage “has overwhelmed existing supervisors and affected the VCL’s ability to provide timely assistance to veterans in crisis.” Major General Eaton attests that:

The February 2025 probationary terminations have had a significant impact on the organizational activities of VoteVets. The time of VoteVets’ staff and consultants has been diverted from VoteVets’ regular activities to field and respond to inquiries from veterans and their families and to connect them with case workers in congressional offices. This has taken almost all of our resources since the probationary terminations began, and has prevented us from performing our regular activities to meet the needs of veterans and their families.

(id. ¶ 11). VoteVets’ members’ access to services critical to the organization’s mission has been hampered, and VoteVets itself has been forced to divert “almost all of [their] resources” in “counteracting the problem,” depriving the organization of its ability to continue to provide services to its members (ibid.).

Plaintiff Common Defense likewise has standing. Common Defense is a “grassroots membership organization of progressive veterans, military families, and civilian supporters” (Arbulu Decl. ¶ 2). With approximately 33,187 members in California (about 2,000 of them veterans), Common Defense “mobilize[s] veterans to support and advocate for policies that help veterans, military families, and all working families,” offers training and helps members begin issue campaigns, and otherwise engages in legislative and political advocacy (id. ¶¶ 3–5, 11). Military veterans compose a large percentage of federal employees, and widespread termination — particularly at the VA and DOD — have had a disproportionate impact on persons whom Common Defense typically serves:

As a result of these developments, Common Defense has had to devote considerable resources to responding to requests from our members and providing guidance about the mass probationary terminations. Many members believe that the termination of their employment may be imminent, and understandably have asked questions — by email, by phone, and on our members’ slack channel — about what the letter means for their rights as employees. Responding to members questions, and working to determine what answers we can give to those members, diverts resources from Common Defense’s advocacy mission and core priorities, including working to expand ballot access at the state level, advancing initiatives to address climate change, and training and educating members.

(id. ¶ 6). Common Defense, like VoteVets, has diverted considerable resources otherwise intended for the pursuit of its advocacy mission to the problems presented to its members, and its mission, by mass terminations, particularly at the VA and DOD.

* * *

First, OPM counters that plaintiffs fail on causation: There was no direction, merely a request; that request was carried out by some agencies; it was those agencies’ independent, intervening actions that are the proximate cause of plaintiffs’ alleged harm. This argument rests on OPM’s broader factual position that its memos and other communications to agencies regarding probationary employees constituted mere guidance, not direction. But plaintiffs have assembled a mountain of evidence supporting their more concise causal chain: OPM directed mass firings and plaintiffs each likely will be (or have been) injured as a result. Plaintiffs have each established a sufficient causal link between the mass termination of employees at the implicated agencies, and the imminent, foreseeable, and in some cases actual injuries that they face.

Next, OPM argues redressability:

They ask the Court to order agencies to rescind probationary removals and reinstate removed employees. But, apart from OPM, no other federal agency is a party here, leaving the Court without the power to order those agencies to take any action. Thus, Plaintiffs cannot show that an order of this Court would likely grant their requested relief, rendering their claimed injuries non-redressable here.

(Dkt. No. 33 at 13). Plaintiffs fairly allege that they have been harmed by OPM’s direction to other agencies to fire their probationary employees. Declaratory and injunctive relief enjoining OPM from issuing such a directive — one request among many made by plaintiffs — will likely redress their alleged injuries.

2. IRREPARABLE HARM.

“[P]laintiffs may not obtain a preliminary injunction unless they can show that irreparable harm is likely to result in the absence of the injunction.” All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011). They have done so here.

“[T]he Supreme Court has instructed us that ‘[e]nvironmental injury, by its nature, can seldom be adequately remedied by money damages and is often permanent or at least of long duration, i.e., irreparable.’” Ibid. (alterations in original) (quoting The Lands Council v. McNair, 537 F.3d 981, 1004 (9th Cir. 2008) (en banc)). Relatedly, “deprivation of a source of personal satisfaction and tremendous joy can constitute an irreparable injury.” Ft. Funston Dog Walkers v. Babbitt, 96 F. Supp. 2d 1021, 1039 (N.D. Cal. 2000) (citing Chalk v. U.S. Dist. Ct., 840 F.2d 701, 709 (9th Cir. 1988)). That is true as to loss of access to national recreational areas. Ibid. The partial closure and degradation of national parks constitutes likely, irreparable harm due to both environmental injury and loss of access (see Neubacher Decl. ¶¶ 2–5). In at least one instance, a closure at Joshua Tree has resulted in actual harm (see Neubacher Suppl. Decl. ¶ 4). And the Arctic grayling, if it goes, is not coming back (see Molvar Suppl. Decl. ¶ 3–9). The Coalition and the Project have established irreparable harm.

Loss of access to essential government services also constitutes likely, and in some cases actual, irreparable harm. For example, the Veterans Crisis Line — an indispensable resource for our veterans in times of crisis — has been “overwhelmed” and its ability to provide care diminished for lack of staff (Eaton Decl. ¶ 9). Loss of access to that critical resource, standing alone, constitutes irreparable harm to VoteVets’ members. Its failure to meet the needs of our veterans presents the further likelihood of tragic results. MSA’s members’ access to crucial SBA services, including the provision of loan guarantees, is likely to be diminished (Phetteplace Decl. ¶¶ 5–9), and the Western Watersheds Project’s access to FOIA production already has been impacted (Molvar Decl. ¶¶ 7–8).

Finally, plaintiffs face irreparable harm because they have diverted significant or even all present resources to responding to the hardships created by the mass termination of probationary employees (see, e.g., Arbulu Decl. ¶ 6; Eaton Decl. ¶ 11).

MSA, the Coalition, the Project, VoteVets, and Common Defense have each established irreparable injury.

OPM’s rebuttals, tailored largely to the union plaintiffs, are moot (Dkt. No. 33 at 10). OPM’s assertion, meanwhile, that “[p]laintiffs have produced no credible evidence that terminations of federal employees have caused a disruption in critical government services” (ibid.) is refuted by the record, discussed at length in this memorandum’s consideration of standing.

3. THE BALANCE OF THE EQUITIES AND THE PUBLIC INTEREST.

Because OPM is a party in this action, the balance of the equities and the public interest merge. See Nken v. Holder, 556 U.S. 418, 435 (2009). Here, they strongly favor plaintiff. “The preservation of the rights in the Constitution and the legality of the process by which government agencies function certainly weighs heavily in the public interest.” Nat’l Treasury Emps. Union v. U.S. Dep’t of Treasury, 838 F. Supp. 631, 640 (D.D.C. 1993) (Judge Harold Greene). Plaintiffs have presented real harms, detailed above, to their organizations, their members, and their missions, while OPM has not provided a substantive opposition (Dkt. No. 33 at 22–23).

In sum, each Winter factor favors granting a limited injunction.

CONCLUSION

Based on the foregoing, the Court granted the following relief at the close of the February 27 argument:

That OPM’s January 20 memo, February 14 email, and all other efforts to direct the termination of employees at NPS, BLM, VA, DOD, SBA, and NSF are illegal, invalid and must be stopped and rescinded. That OPM must communicate that decision to those agencies by the next day, February 27.

(Dkt. No. 41).

This memorandum amends the bench order to address two errors (the inclusion of the NSF, and the exclusion of FWS). The Court’s TRO is accordingly AMENDED to the following:

It is ORDERED that:

OPM’s January 20 memo, February 14 email, and all other efforts by OPM to direct the termination of employees at NPS, BLM, VA, DOD, SBA, and FWS are unlawful, invalid, and must be stopped and rescinded.

OPM shall provide written notice of this order to NPS [National Park Service], BLM [Bureau of Land Management], VA [Veteran's Affairs], DOD [Department of Defense], SBA [Small Business Administration], and FWS [Fish & Wildlife].

The evidentiary hearing described at the February 27 motion hearing shall occur on MARCH 13, 2025, AT 8 AM. The hearing will be in person in Courtroom 12.

Dated: February 28, 2025.

__________________
WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

[admin]

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

AMERICAN FEDERATION OF LABOR AND CONGRESS OF INDUSTRIAL ORGANIZATIONS, et al.,

Plaintiffs,

v.

DEPARTMENT OF LABOR, et al.,

Defendants.

Civil Action No. 25-0339 (JDB)

Highlights:

Plaintiffs seek expedited discovery for the purpose of finding facts “critical to assessing [p]laintiffs’ irreparable injuries.”…

The agency action challenged here is unlike the actions normally challenged in APA cases, such as a promulgated regulation or a grant or denial of an application.... [P]laintiffs challenge the agency defendants’ “policies” to “grant [USDS] employees access to information systems,” which plaintiffs say amount to a new policies of permitting unlawful disclosures of protected information….. And, thus far, the parties’ arguments and the record in this case have “not clarif[ied] matters” regarding the alleged policies’ scope…..

The “contours of the precise policy at issue” are far from defined….As such, the discovery requested here is appropriate, for it is not so much “fact-finding” as it is “filling in gaps . . . to determine what the agency actually did.”… Nor does the Court find it evident that there exists a standard administrative record that defendants could submit—defendants have so far only relied on declarations taken after the alleged policies or decisions took effect, whereas the relevant parts of an administrative record are typically the facts before the agency and reasons the agency gave ex ante….this case merits an exception to the general prohibition of discovery in APA cases….

[T]he facts that bear on irreparable harm remain opaque….These include the structure of USDS and the scope of its authority, which the Court has said are not only unclear on the current record, but also critical to deciding the question of whether USDS is an agency within the meaning of the Economy Act of 1933—and thus whether its employees are permitted by the Privacy Act to view individual information….

Plaintiffs seek discovery on these issues in part because defendants already put into the record some facts relevant to the issues. The declarations defendants filed with their oppositions to plaintiffs’ TRO motions—all of which were prepared well after the challenged agency actions—introduced before-unknown information—some of which conflicted—on how USDS is operating at the defendant agencies: from the number of USDS employees working at each defendant agency, to the training and agreements put in place for those employees, to the access those employees are given….It would be strange to permit defendants to submit evidence that addresses critical factual issues and proceed to rule on a preliminary injunction motion without permitting plaintiffs to explore those factual issues through very limited discovery.

Considering that (1) the Court itself stated that further information on the topics on which plaintiffs seek discovery would be vital to resolving a preliminary injunction motion and (2) defendants’ declarations teed up the factual questions plaintiffs seek to plumb, the Court cannot say that plaintiffs’ request is merely “a thinly veiled attempt to circumvent the normal litigation process.”…. Quite the opposite....

The interrogatories to the agencies seek information about the extent of access to sensitive systems agencies have given USDS employees, who at the agencies authorized such access, and any training USDS employees received….this information goes to irreparable harm because, if USDS employees are not permitted by the Privacy Act to view these systems, plaintiffs argue they are injured. Similarly, the interrogatories to USDS focus on facts relevant to irreparable harm: the structure, chain of command, and sharing policies of USDS go to the question of whether USDS is an agency permitted to detail employees to the three agency defendants…..

[D]efendants acknowledged these documents were relevant to the resolution of plaintiffs’ second TRO motion, and the impending preliminary injunction motion will rest on the same issues the TRO motion did….

[P]laintiffs here have put forward three specific topics to which each deposition will be limited. For the agency defendants, the Rule 30(b)(6) topics focus on how, if at all, the agencies’ systems-access procedures changed following USDS’s creation, the role of USDS employees at the agencies, and those employees’ use of sensitive systems….the topics for the Rule 30(b)(6) deposition of USDS focus on USDS’s structure and authority, as well as the role and responsibilities of USDS employees working at defendant agencies….

[T]he Privacy Act—the act on which plaintiffs have largely rested their case, including the harm they allegedly suffered—only protects individual information….(defining “record” as “information about an individual that is maintained by an agency”). The Court thus amends plaintiffs’ definition of Sensitive Systems to refer only to “any system of records that contains Personally Identifiable Information (PII) or Personal Health Information (PHI).”

The issues in front of this Court are limited to USDS’s presence at the agencies that are defendants in this case. Which other agencies may be hosting USDS employees is not relevant to the resolution of plaintiffs’ impending motion to preliminarily enjoin USDS, DOL, HHS, and CFPB. The Court will thus eliminate question 1(f)….

Defendants argue that the interrogatories and document requests are unduly burdensome because of the number of subparts and the focus on agency structure, training, and systems usage….Providing this number of names and dates is not so burdensome, especially when one considers that none of this information would require going back farther than January 20, 2025, the date President Trump renamed USDS….

As for the document production requests, the Court already explained that the documents plaintiffs seek are limited to documents referenced by three of defendants’ declarants in statements made less than two weeks ago….Obtaining these documents should thus not be overly burdensome….

[D]efendants argue most strongly against the Rule 30(b)(6) depositions…..

[T]he Court will limit plaintiffs to a total of eight hours for their four depositions. Plaintiffs can allocate those eight hours between USDS and the agency defendants as plaintiffs see fit.

In sum, the Court determines the burden of the expedited discovery plaintiffs seek—taking into consideration the Court’s alterations—is not unbearable….

Defendants indicate that they intend to seek dismissal on the basis of “Article III standing, APA reviewability, and Privacy Act preclusion,” issues which the defendants contend “do not require any factual development” and thus permitting expedited discovery could result in the situation Guttenberg warned against: ultimately unnecessary expensive and burdensome discovery……

[T]he Court concludes that this factor does not weigh strongly in defendants’ favor. Just as this is not a run-of-the-mill APA case, this is not the standard civil case in which a motion to dismiss is filed before any legal or factual development…. this is not a case where the motion to dismiss will contain dispositive arguments the Court has yet to contemplate. As a result, while it’s a close question, the Court cannot say reasonableness demands prohibiting expedited discovery until the resolution of defendants’ impending motion to dismiss….

The Court thus determines that to whatever extent the final factor may slightly favor defendants, the other four factors outweigh it. Hence, the Court concludes that plaintiffs are entitled to the limited expedited discovery they request, subject to the further alterations and limitation the Court has detailed....

The Court uses USDS to refer to both United States DOGE and the United States DOGE Service Temporary Organization….

[T]he Court determines that the information plaintiffs seek regarding the scope of USDS employees’ access to sensitive systems and the authority and structure of USDS is necessary for determining the question the contours of defendant agencies’ policies and actions.

-- UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA, AMERICAN FEDERATION OF LABOR AND CONGRESS OF INDUSTRIAL ORGANIZATIONS, et al., Plaintiffs, v. DEPARTMENT OF LABOR, et al., Defendants. Civil Action No. 25-0339 (JDB). Order [Judge John D. Bates, United States District Judge, February 27, 2025

ORDER

Before the Court is [44] plaintiffs’ motion for expedited discovery. Whether to grant the motion is a close question, but the Court concludes it will grant the motion in part. Although this in an Administrative Procedure Act (“APA”) case, the discovery plaintiffs request is proper because it is necessary to determine the contours of the agency actions that plaintiffs challenge. The limited expedited discovery plaintiffs request is also reasonable. With some modest alterations by the Court, the discovery is narrowly tailored to the issues that this Court has already indicated would be essential to deciding plaintiffs’ impending preliminary injunction motion. And the limited discovery will not overly burden defendants: the written discovery largely seeks only individuals’ identities, dates, and names of systems, as well as documents that defendants’ own declarations have referenced, and the four depositions—which the Court will cap at lasting eight hours in the aggregate—are limited to three properly-scoped topics.

BACKGROUND

Plaintiffs initiated this lawsuit—then against only the Department of Labor (“DOL”) and the United States DOGE Service (“USDS”)1—on February 5, 2025. See Mem. Op. & Order [ECF No. 18] (“First TRO Order”) at 4. Along with their complaint, plaintiffs moved for a temporary restraining order (“TRO”) to enjoin USDS employees from accessing, and DOL from granting USDS employees access to, individual information protected by the Privacy Act of 1974. See id. at 2. But the Court denied that TRO motion because plaintiffs failed to demonstrate a substantial likelihood of Article III standing. Id. at 9.

The next week, plaintiffs filed an amended complaint, which added two nonprofits and an additional union as plaintiffs and the Department of Health and Human Services (“HHS”) and the Consumer Financial Protection Bureau (“CFPB”) as defendants. Am. Compl. [ECF No. 21]. Plaintiffs filed another TRO motion two days later, seeking to enjoin all defendants from, inter alia, sharing personally identifiable information with USDS employees. Pls.’ Mot. Renewed TRO [ECF No. 29]. But the Court denied that motion too, because plaintiffs failed to show they were likely to succeed on the merits of their Privacy Act (or any other) claim. See Mem. Op. & Order [ECF No. 34] (“Second TRO Order”) at 2–10. Specifically, the Court determined that plaintiffs did not adequately demonstrate that USDS [DOGE] employees working at the defendant agencies are not “employees of the agency” within the meaning of the Privacy Act, meaning plaintiffs failed to demonstrate that the USDS employees were prohibited by law from viewing the relevant data. Id. at 5–8.

In accordance with the Court’s order, see id. at 11, the parties then filed a proposed briefing schedule, see Joint Statement by Parties Concerning Scheduling [ECF No. 42]. Plaintiffs notified the Court that they planned to file a motion for expedited discovery to gather evidence prior to the preliminary injunction motion they also intend to file, and requested that the Court thus set a discovery schedule and preliminary injunction briefing schedule. Id. at 1–4. Defendants countered that they would oppose any motion for expedited discovery and that the Court should not permit plaintiffs to file a preliminary injunction before the Court resolves the motion to dismiss defendants intend to file. Id. at 4–5. The Court struck a middle ground: it indicated limited expedited discovery may be appropriate in this case, set a preliminary injunction briefing schedule to account for possible discovery, and set a motion to dismiss briefing schedule that concludes prior to the start of the preliminary injunction briefing. See Order [ECF No. 43] (“Scheduling Order”) at 1–3. Plaintiffs then filed the instant motion for expedited discovery, Pls.’ Mot. Expedited Disc. [ECF No. 44] (“Disc. Mot.”), which defendants opposed, Defs.’ Opp’n Pls.’ Mot. Expedited Disc. [ECF No. 45] (“Disc. Opp’n”), and plaintiffs later replied, Pls.’ Reply in Supp. Mot. Expedited Disc. [ECF No. 46] (“Reply”).

ANALYSIS

Plaintiffs seek expedited discovery for the purpose of finding facts “critical to assessing [p]laintiffs’ irreparable injuries.” Disc. Mot. at 1. Specifically, they ask the Court to permit them to submit to defendants limited interrogatories and requests for production of documents, and to conduct four depositions (one for each agency and one for USDS) pursuant to Federal Rule of Civil Procedure 30(b)(6).2 Pls.’ Proposed Interrogs. & Reqs. for Produc. of Docs. [ECF No. 44-2] (“Proposed Disc.”) at 1–7.

Generally, Federal Rule of Civil Procedure 26(d)(1) prohibits discovery until after the parties’ Rule 26(f) conference, Fed. R. Civ. P. 26(d)(1); see also Local Civ. R. 26.2(a), which has yet to happen in this case. But Rule 26(d)(1) also gives courts discretion to make exceptions. See Guttenberg v. Emery, 26 F. Supp. 3d 88, 97 (D.D.C. 2014). That said, the rule is silent as to “a standard to apply when determining whether expedited discovery is appropriate.” Id. As a result, this Court has adopted the so-called reasonableness approach. Id. at 98. Under that approach, “the Court considers the ‘reasonableness of the request in light of all of the surrounding circumstances,’ which include: ‘(1) whether a preliminary injunction is pending; (2) the breadth of the discovery requests; (3) the purpose for requesting the expedited discovery; (4) the burden on the defendants to comply with the requests; and (5) how far in advance of the typical discovery process the request was made.’” Id. (quoting In re Fannie Mae Derivative Litig., 227 F.R.D. 142, 142–43 (D.D.C. 2005)). These factors, however, do not form a hard-and-fast rule. Rather, they “are only guidelines for the exercise of the Court’s discretion.” Id.; cf. Nixon v. Freeman, 670 F.2d 346, 363 (D.C. Cir. 1982) (“A district court has broad discretion over . . . discovery.”).

I. Administrative Procedure Act

Before turning to the reasonableness factors, the Court addresses defendants’ overarching argument: that the Court should not permit discovery at all because this is an APA case. See Disc. Opp’n at 6. Defendants correctly state that a “[c]ourt must generally base its review in an APA case ‘on the full administrative record that was before the [agency] at the time [it] made its decision,’ not on a record generated by the parties through the discovery process.” Id. (alterations in original) (quoting Am. Bioscience, Inc. v. Thompson, 243 F.3d 579, 582 (D.C. Cir. 2001)). Defendants argue that means plaintiffs are not permitted to seek discovery prior to defendants’ submission of an administrative record, and even then, only if plaintiffs were to make “a strong showing of bad faith or improper behavior or” it is evident that “the record is so bare that it prevents effective judicial review.” Id. (quoting Com. Drapery Contractors, Inc. v. United States, 133 F. 3d 1, 7 (D.C. Cir. 1998)).

Defendants’ argument glosses over the fact that, as the Court noted in its earlier order, this is not an ordinary APA case. See Scheduling Order at 1–2. The agency action challenged here is unlike the actions normally challenged in APA cases, such as a promulgated regulation or a grant or denial of an application. Rather, plaintiffs challenge the agency defendants’ “policies” to “grant [USDS] employees access to information systems,” which plaintiffs say amount to a new policies of permitting unlawful disclosures of protected information. See Mem. in Supp. Pls.’ Renewed Mot. TRO [ECF No. 29-1] (“Second TRO Mot.”) at 23. Defendants counter that the USDS employees are in fact employees of the defendant agencies and thus the agencies’ choices to give them access to information systems are not new “policies,” but merely standard “agency[] decision[s] to give . . . employee[s] access to [those] systems.” See Defs.’ Mem. Opp’n Pls.’ Renewed Mot. TRO [ECF No. 31] at 18. In other words, a key question in this case is “whether the alleged disclosure policy in fact exists.” See Venetian Casino Resort, LLC v. EEOC, 409 F.3d 359, 360 (D.C. Cir. 2005). And, thus far, the parties’ arguments and the record in this case have “not clarif[ied] matters” regarding the alleged policies’ scope. See id.; Second TRO Order at 8 (explaining the lack of clarity on the issue of whether USDS employees are agency employees). Further, the scope of the alleged policy also impacts the scope of the harm to plaintiffs—for, if the Privacy Act permits the USDS employees to view the individual information at issue, the theory of harm plaintiffs have thus far asserted fails. See Second TRO Order at 3 n.1.

In such situations, a court may depart from the default APA no-discovery rule. See Venetian Casino Resort, 409 F.3d at 360. For example, in Hispanic Affairs Project v. Acosta, plaintiffs brought a claim under the APA alleging that the Department of Homeland Security had a “practice of habitually approving and extending H-2A visas for lengthy periods of time.” 901 F.3d 378, 388 (D.C. Cir. 2018). Homeland Security argued—much like defendants here have argued—plaintiffs did not adequately allege a challengeable agency action but rather a “programmatic challenge.” Id. at 387–88. The D.C. Circuit disagreed, determining that the plaintiffs alleged a “particular practice” that would be challengeable if found to exist. See id. at 388. So the Circuit remanded to the district court, explaining that, “[o]n remand, the district court [wa]s free to exercise its discretion to permit further discovery to ascertain the contours of the precise policy at issue.” Id. (internal quotation marks omitted); see also Venetian Casino Resort, 409 F.3d at 360.

This Court may exercise that same discretion here. The “contours of the precise policy at issue” are far from defined. See Hispanic Affairs Proj., 901 F.3d at 388. As such, the discovery requested here is appropriate, for it is not so much “fact-finding” as it is “filling in gaps . . . to determine what the agency actually did.” Marshall Cnty. Health Care Auth. v. Shalala, 988 F.2d 1221, 1227 (D.C. Cir. 1993). Nor does the Court find it evident that there exists a standard administrative record that defendants could submit—defendants have so far only relied on declarations taken after the alleged policies or decisions took effect,3 whereas the relevant parts of an administrative record are typically the facts before the agency and reasons the agency gave ex ante, see Grace v. Barr, 965 F.3d 883, 903 (D.C. Cir. 2020); Strategic Analysis, Inc. v. U.S. Dep’t of Navy, Civ. A. No. 96-300 (PLF), 1996 WL 294262, at *1–2 (D.D.C. May 29, 1996) (granting expedited discovery in APA case). In short, this case merits an exception to the general prohibition of discovery in APA cases. So the fact that this is an APA case does not preclude the Court from granting plaintiffs’ motion for expedited discovery.

II. Reasonableness Approach

Seeing no initial barrier to permitting expedited discovery here, the Court now assesses the five factors of the reasonableness approach, albeit somewhat out of order. In the end, the Court determines that, taken together, the factors weigh in favor of granting—in part—plaintiffs’ motion for expedited discovery.

A. Whether a Preliminary Injunction Motion is Pending

The first reasonableness factor is whether a preliminary injunction motion is pending. Guttenberg, 26 F. Supp. 3d at 98. The literal answer to this question is no: there is no preliminary injunction motion currently on the docket. But, contrary to defendants’ argument otherwise, see Disc. Opp’n at 11, that does not mean that this factor weighs in favor of denying plaintiffs’ motion. Plaintiffs not only intend to file a preliminary injunction motion imminently, but the Court has ordered them to do so by not later than April 1, 2025. See Scheduling Order at 3. Garnering support for that anticipated preliminary injunction motion is “the very purpose of [plaintiffs’] motion for expedited discovery.” Legal Tech. Grp., Inc. v. Mukerji, Civ. A. No. 17-631 (RBW), 2017 WL 7279398, at *3 (D.D.C. June 5, 2017); Disc. Mot. at 1 (“Tailored discovery . . . will enable the Court to evaluate Plaintiffs’ forthcoming motion for a preliminary injunction.”). And, as discussed more below, plaintiffs’ two TRO motions have revealed the factual and legal issues critical to the impending preliminary injunction motion. As a result, “the parameters of relevant discovery are [not] difficult to determine at this juncture in the case.” See 4SIGHT Supply Chain Grp., LLC v. Kent, Civ. A. No. 2:19-12476 (WHW) (CLW), 2019 WL 13235533, at *2 (D.N.J. June 27, 2019) (explaining why the lack of a pending preliminary injunction motion can warn against granting discovery); Reply at 3. The first factor thus weighs somewhat in favor of granting plaintiffs’ motion for expedited discovery. See Legal Tech Grp., 2017 WL 7279398, at *3.4

B. The Purpose for Requesting Expedited Discovery

That brings the Court to plaintiffs’ purpose for requesting expedited discovery. As stated, plaintiffs seek expedited discovery to support their impending preliminary injunction motion. See Disc. Mot. at 1. But unlike in other cases in which the Court has denied motions for expedited discovery, plaintiffs’ purpose is to “reveal information related to the preliminary injunction as opposed to the case as a whole.” See Guttenberg, 26 F. Supp. 3d at 98 (denying expedited discovery that nominally sought to support a preliminary injunction motion but in fact went primarily to the merits); Damus v. Nielson, 328 F.R.D. 1, 4 (D.D.C. 2018). Plaintiffs focus their discovery requests on the dispositive preliminary injunction issue of irreparable harm. See Disc. Mot. at 4–7. They explain that, as elucidated through the litigation on their two TRO motions, the facts that bear on irreparable harm remain opaque. See id. These include the structure of USDS and the scope of its authority, which the Court has said are not only unclear on the current record, but also critical to deciding the question of whether USDS is an agency within the meaning of the Economy Act of 1933—and thus whether its employees are permitted by the Privacy Act to view individual information. Second TRO Order at 8; see also id. at 3 n.1 (explaining that plaintiffs’ asserted harm rests on Privacy Act claim).

Another point is worth mentioning. Plaintiffs seek discovery on these issues in part because defendants already put into the record some facts relevant to the issues. The declarations defendants filed with their oppositions to plaintiffs’ TRO motions—all of which were prepared well after the challenged agency actions—introduced before-unknown information—some of which conflicted—on how USDS is operating at the defendant agencies: from the number of USDS employees working at each defendant agency, to the training and agreements put in place for those employees, to the access those employees are given. See generally Decl. of Adam Ramada [ECF No. 16-1] (“Ramada Decl.”); Decl. of Ricky J. Kryger [ECF No. 31-1] (“Kriger Decl.”); Decl. of Garey Rice [ECF No. 31-2] (“Rice Decl.”); Decl. of Adam Martinez [ECF No. 31-3] (“Martinez Decl.”). It would be strange to permit defendants to submit evidence that addresses critical factual issues and proceed to rule on a preliminary injunction motion without permitting plaintiffs to explore those factual issues through very limited discovery.

Considering that (1) the Court itself stated that further information on the topics on which plaintiffs seek discovery would be vital to resolving a preliminary injunction motion and (2) defendants’ declarations teed up the factual questions plaintiffs seek to plumb, the Court cannot say that plaintiffs’ request is merely “a thinly veiled attempt to circumvent the normal litigation process.” In re Fannie Mae, 227 F.R.D. at 143. Quite the opposite. The purpose factor thus weighs in favor of granting plaintiffs’ motion for expedited discovery.

C. The Breadth of the Discovery Requests

Now onto the question of whether plaintiffs’ proposed discovery sweeps too broadly for its purpose. Plaintiffs supplied the Court with the interrogatories, document-production requests, and deposition topics they seek from defendants. To summarize, plaintiffs seek to (1) submit to defendants two interrogatories (with subparts); (2) submit to defendants a short set of document requests, and (3) conduct four Rule 30(b)(6) depositions, one for USDS and one for each agency defendant. Proposed Disc. at 1–7. The first interrogatory—containing eight subparts—is mainly directed to the defendant agencies. Id. at 3. The second—containing five subparts, one with four additional sub-subparts—is directed mainly at USDS. Id. at 3–4. The proposed request for document production contains seven requests directed at agency defendants that seek documents referenced in the declarations defendants submitted in support of their opposition to plaintiffs’ second TRO motion. See id. at 5. Lastly, the proposed Rule 30(b)(6) depositions for the agency defendants and USDS are each scoped to cover three multiprong topics and would be limited in duration to three and a half hours. Id. at 6–7.

In defendants’ view, these requests are not properly scoped to clarify the agencies’ actions as needed for ruling on a preliminary injunction in this case. See Disc. Opp’n at 17–18. The Court disagrees. With the caveats stated below, the scope of plaintiffs’ discovery request is tailored to determining the contours of the agencies’ actions that are necessary for deciding a preliminary injunction motion, primarily irreparable harm.5 Start with the interrogatories. The interrogatories to the agencies seek information about the extent of access to sensitive systems agencies have given USDS employees, who at the agencies authorized such access, and any training USDS employees received. See Proposed Disc. at 3. As the Court has explained, this information goes to irreparable harm because, if USDS employees are not permitted by the Privacy Act to view these systems, plaintiffs argue they are injured. Similarly, the interrogatories to USDS focus on facts relevant to irreparable harm: the structure, chain of command, and sharing policies of USDS go to the question of whether USDS is an agency permitted to detail employees to the three agency defendants.

It is even clearer that the document requests are properly scoped. Each of the seven document requests is for a document defendants’ declarants mentioned when discussing the procedures and policies surrounding USDS employees and operations at defendant agencies. See id. at 5 (each of the seven requests referencing one or more of the three declarations defendants submitted with their opposition to plaintiffs’ second TRO motion). Like the USDS interrogatories, these documents are relevant to the scope of USDS employees’ assignments, their relationship to the defendant agencies at which they’re working, and USDS’s authority to detail them. See id. Plus, defendants acknowledged these documents were relevant to the resolution of plaintiffs’ second TRO motion, and the impending preliminary injunction motion will rest on the same issues the TRO motion did.

Lastly, the Rule 30(b)(6) depositions are properly scoped as well. The Court recognizes that, as defendants point out, the nature of Rule 30(b)(6) depositions make them susceptible to becoming overly broad and freewheeling. See Disc. Opp’n at 14. However, plaintiffs here have put forward three specific topics to which each deposition will be limited. For the agency defendants, the Rule 30(b)(6) topics focus on how, if at all, the agencies’ systems-access procedures changed following USDS’s creation, the role of USDS employees at the agencies, and those employees’ use of sensitive systems. Proposed Disc. at 6. And like the interrogatories, the topics for the Rule 30(b)(6) deposition of USDS focus on USDS’s structure and authority, as well as the role and responsibilities of USDS employees working at defendant agencies. Id. at 7.

While plaintiffs’ proposed discovery is predominately properly scoped, there are two proposals the Court determines go beyond the issues relevant to the impending preliminary injunction motion. The first is plaintiffs’ definition of “Sensitive Systems,” a definition on which much of their proposed discovery relies. See id. at 2–7. Plaintiffs propose to define the term as “any system of records that contains Personally Identifiable Information (PII), Personal Health Information (PHI), trade secrets, or confidential business information.” Id. at 2. However, the Privacy Act—the act on which plaintiffs have largely rested their case, including the harm they allegedly suffered—only protects individual information. See 5 U.S.C. § 552a(a)(4) (defining “record” as “information about an individual that is maintained by an agency”). The Court thus amends plaintiffs’ definition of Sensitive Systems to refer only to “any system of records that contains Personally Identifiable Information (PII) or Personal Health Information (PHI).”

The second overbroad proposal is question 1(f) of plaintiffs’ proposed interrogatories. That question asks for “[a] complete list of the federal agencies to which the [USDS] Employees are or have been detailed since January 20, 2025.” Proposed Disc. at 3. The issues in front of this Court are limited to USDS’s presence at the agencies that are defendants in this case. Which other agencies may be hosting USDS employees is not relevant to the resolution of plaintiffs’ impending motion to preliminarily enjoin USDS, DOL, HHS, and CFPB. The Court will thus eliminate question 1(f).

In sum, with the two alterations mentioned, the Court determines the scope of plaintiffs’ proposed discovery weighs in favor of granting their motion.

D. The Burden on the Defendants to Comply with the Requests

Going hand in hand with whether plaintiffs’ proposed discovery is properly scoped is whether complying with those requests places too high a burden on the defendants. Where the scope of discovery sweeps too broadly, that discovery can unduly burden defendants. See True the Vote, Inc. v. IRS, No. CV 13-734 (RBW), 2014 WL 4347197, at *7–8 (D.D.C. Aug. 7, 2014). As the Court has determined, that’s not the case here. But, as defendants argue, even properly scoped discovery has the potential of being overly burdensome depending how that discovery will occur and how much information the requests seek. See Disc. Opp’n at 14.

Here, there is no such undue burden. Each form of discovery—interrogatories, document requests, and Rule 30(b)(6) depositions—is narrowed in a way that will impose a minimal burden on defendants. Defendants argue that the interrogatories and document requests are unduly burdensome because of the number of subparts and the focus on agency structure, training, and systems usage. Disc. Opp’n at 16. But looking closer at the questions and document requests, one sees that the burden does not stretch that far. Of the seven subparts of the interrogatories directed at defendant agencies (as narrowed by the Court), two ask only for identities of individuals, three ask for only the name and description of training programs, systems, and software, and one asks only for dates. See Proposed Disc. at 3. The remaining subpart extends to the usage of systems by USDS employees. Id. Similarly, of the five subparts of the interrogatories directed at USDS, four ask only for identities of individuals and, at most, those individuals’ responsibilities. Id. at 3–4. Providing this number of names and dates is not so burdensome, especially when one considers that none of this information would require going back farther than January 20, 2025, the date President Trump renamed USDS. See First TRO Order at 2.

As for the document production requests, the Court already explained that the documents plaintiffs seek are limited to documents referenced by three of defendants’ declarants in statements made less than two weeks ago. Proposed Disc. at 5 (requesting documents referred to in Kryger Decl., Decl. of Garey Rice, and Decl. of Adam Martinez). Obtaining these documents should thus not be overly burdensome.

Understandably, defendants argue most strongly against the Rule 30(b)(6) depositions. As they point out, the Court stated in its scheduling order that “the discovery should be primarily—if not exclusively—written discovery.” Scheduling Order at 2; Disc. Opp’n at 14. And the nature of Rule 30(b)(6) depositions, defendants argue, makes the burden too heavy. Disc. Opp’n at 14. But, as stated earlier, the scope of the Rule 30(b)(6) depositions here is not as expansive—and thus the deposition will not require as much preparation and expense—as a typical Rule 30(b)(6) deposition. The Court emphasizes that the four depositions shall be limited only to the topics plaintiffs have identified in their proposed discovery order. See Proposed Disc. at 6–7. Anything beyond those topics is prohibited.

Additionally, given that each deposition shall cover only three topics, the Court thinks the three-and-a-half-hour limit plaintiffs propose is too high. To help ensure the depositions are limited to the proper topics, and to help decrease the burden on defendants, the Court will limit plaintiffs to a total of eight hours for their four depositions. Plaintiffs can allocate those eight hours between USDS and the agency defendants as plaintiffs see fit.

In sum, the Court determines the burden of the expedited discovery plaintiffs seek—taking into consideration the Court’s alterations—is not unbearable. This factor thus weighs in favor of granting plaintiffs’ motion.

E. How Far in Advance of the Typical Discovery Process the Request was Made

Finally, the Court turns to how far in advance of the typical discovery process plaintiffs have requested expedited discovery. Defendants argue that this factor heavily weighs in their favor and point to this Court’s decision in Guttenberg for support. Disc. Opp’n at 8–11. There, the Court explained that the “most important” factor in the Court’s decision to deny the motion for expedited discovery in that case was that there was a pending motion to dismiss, showing that “plaintiffs’ request for expedited discovery c[ame] ‘well in advance of typical discovery.’” Guttenberg, 26 F. Supp. 3d at 99 (quoting Landwehr v. FDIC, 282 F.R.D. 1, 4 (D.D.C. 2010)). The Court explained that permitting expedited discovery when said motion was pending could require defendants “to expend significant resources in responding” to requests even though there was a chance the Court would “then grant defendants’ motion to dismiss,” making the expenditure all for nothing. See id. So, in that case, “reasonableness dictate[d] that the Court consider defendants’ motion to dismiss before requiring . . . discovery.” Id.

The Court acknowledges that Guttenberg and other cases have emphasized that a pending motion to dismiss cuts against granting a plaintiff’s motion for expedited discovery. See Landwehr, 282 F.R.D. at 4; True the Vote, 2014 WL 4347197, at *8. The Court also acknowledges that, just as there is an impending motion for preliminary injunction in this case, there is an impending motion to dismiss. See Scheduling Order at 3 (ordering defendants file their motion to dismiss by not later than February 28, 2025). Defendants indicate that they intend to seek dismissal on the basis of “Article III standing, APA reviewability, and Privacy Act preclusion,” issues which the defendants contend “do not require any factual development” and thus permitting expedited discovery could result in the situation Guttenberg warned against: ultimately unnecessary expensive and burdensome discovery. See Disc. Opp’n at 9–11.

Despite those facts, however, the Court concludes that this factor does not weigh strongly in defendants’ favor. Just as this is not a run-of-the-mill APA case, this is not the standard civil case in which a motion to dismiss is filed before any legal or factual development. The briefing on plaintiffs’ two TROs has produced a record, albeit minimal, and has revealed the parties’ legal arguments. So this is not a case where the motion to dismiss will contain dispositive arguments the Court has yet to contemplate. As a result, while it’s a close question, the Court cannot say reasonableness demands prohibiting expedited discovery until the resolution of defendants’ impending motion to dismiss.6

* * *

Of the five reasonableness factors, the last is undoubtably the closest. But the other four weigh in favor of granting plaintiffs’ motion in part. The Court thus determines that to whatever extent the final factor may slightly favor defendants, the other four factors outweigh it. Hence, the Court concludes that plaintiffs are entitled to the limited expedited discovery they request, subject to the further alterations and limitation the Court has detailed.

CONCLUSION

For the reasons explained above, it is hereby ORDERED that [44] plaintiffs’ motion for expedited discovery is GRANTED in part, subject to the alterations the Court has explained in this Order. It is further ORDERED that the expedited discovery shall take place in accordance with the schedule the Court set forward in [43] the Court’s scheduling order.

SO ORDERED.

/s/
JOHN D. BATES
United States District Judge
Dated: February 27, 2025
 
_______________

Notes:

1 The Court uses USDS to refer to both United States DOGE and the United States DOGE Service Temporary Organization.

2 In relevant part, Rule 30(b)(6) states that In its notice or subpoena, a party may name as the deponent a public or private corporation, a partnership, an association, a governmental agency, or other entity and must describe with reasonable particularity the matters for examination. The named organization must designate one or more officers, directors, or managing agents, or designate other persons who consent to testify on its behalf; and it may set out the matters on which each person designated will testify. Fed. R. Civ. P. 30(b)(6).

3 See Decl. of Adam Ramada [ECF No. 16-1]; Decl. of Ricky J. Kryger [ECF No. 31-1]; Decl. of Garey Rice [ECF No. 31-2]; Decl. of Adam Martinez [ECF No. 31-3].

4 Defendants also argue that this factor weighs against granting plaintiffs’ motion because plaintiffs failed to seek expedited “discovery before either of their two prior motions for emergency relief.” Disc. Opp’n at 11. It’s true that “demonstrated lack of urgency in seeking expedited discovery” weighs against granting a motion for expedited discovery. See Guttenberg, 26 F. Supp. 3d at 98. But the Court cannot say that plaintiffs who do not seek discovery to support a TRO show a lack of urgency. TROs are “the pinnacle of emergency relief meant to preserve the status quo for a limited period of time until the Court has an opportunity to pass on the merits of the demand for a preliminary injunction.” M.G.U. v. Nielson, 316 F. Supp. 3d 518, 520 (D.D.C. 2018). It’s hard to imagine even expedited discovery could be completed within a TRO’s typical lifespan. See Fed. R. Civ. P. 65(b)(2) (explaining that a TRO expires after 14 days unless a court orders otherwise). Not to mention, defendants’ argument is self-defeating. If, as defendants argue, it is now too early for plaintiffs to be seeking discovery, see Disc. Opp’n at 8–11, surely it was too early for plaintiffs to seek discovery for their TROs. [!]

5 Defendants argue that plaintiffs’ proposed discovery extends beyond what would in the administrative record, and thus they seek to limit any discovery the Court allows to topics and documents defendants believe constitute an administrative record. See Disc. Opp’n at 17–18, 20–21. But the Court determines that the information plaintiffs seek regarding the scope of USDS employees’ access to sensitive systems and the authority and structure of USDS is necessary for determining the question the contours of defendant agencies’ policies and actions—a question for which discovery can be appropriate in an APA case. See Venetian Casino Resort, 409 F.3d at 360; Marshall Cnty. Health Care Auth., 988 F.2d at 1227.

6 The Court also notes that defendants have thus far not relied solely on legal arguments, but also on facts they put in the record. See supra, n.3. And this evidence goes to the very issues they seek to address in their motion to dismiss. For example, the declarations submitted with defendants’ opposition to plaintiffs’ second TRO motion indicate how many USDS employees, if any, are at each agency, the scope of their work, the procedures, policies, and agreements surrounding their purported detail, and their chain of command. See generally, e.g., Rice Decl. As noted, these facts go to plaintiffs’ harm—implicating not only irreparable harm, but Article III standing and final agency action. In other words, the evidence defendants have thus far put in the record goes to the very issues on which plaintiffs seek discovery. Indeed, defendants argue that if the Court permits plaintiffs to conduct expedited discovery, the Court should limit the discovery to jurisdictional discovery. Disc. Opp’n at 19–20. This seems to recognize that the issues defendants contend are dispositive without factual development do rest in part on factual findings. Lastly, this all indicates that, while defendants intend to make legal arguments in their motion to dismiss, there is a possibility that defendants’ motion to dismiss could rest on facts outside the pleadings, making discovery both beneficial and necessary. See Fed. R. Civ. P. 12(d).