American Federation Of Government Employees, AFL-CIO et al v. United States Office of Personnel Management et al

Filing 89

ORDER ON EX PARTE APPLICATION BY DEFENDANTS 75 . Signed by Judge Alsup. (whalc1, COURT STAFF) (Filed on 3/10/2025)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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United States District Court
Northern District of California

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

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v.

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No. C 25-01780 WHA

UNITED STATES OFFICE OF
PERSONNEL MANAGEMENT, et al.,

ORDER ON EX PARTE
APPLICATION BY DEFENDANTS

Defendants.
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The hearing on a preliminary injunction will proceed as scheduled on Thursday, March

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The government argues that “the March 13 evidentiary hearing and any depositions are

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unnecessary in light of OPM’s compliance with the TRO and [their] willingness to convert the

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Court’s TRO into a preliminary injunction” (Dkt. No. 75 at 10) (cleaned up). The problem is

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that plaintiffs seek broader relief than was provided by the TRO now in place. So, even if the

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Court must rule based solely on the record submitted during the TRO proceeding, it will do so,

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on or shortly after the March 13 hearing.

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Defendants next argue that the testimony of Acting Director Ezell should not be

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compelled because to do so would “inappropriately intrude on the workings of a coordinate

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branch of government and pose avoidable and unnecessary separation-of-powers concerns”

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(Dkt. No. 75 at 12). The problem here is that Acting Director Ezell submitted a sworn

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declaration in support of defendants’ position, but now refuses to appear to be cross examined,

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or to be deposed (despite, it should be added, government counsel’s embrace of that very idea

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during the TRO hearing). See In re Cheney, 544 F.3d 311, 313-314 (D.C. Cir. 2008).

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The Court’s order that he appear or be deposed will not be vacated, nor will the hearing

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on March 13. If Ezell does not appear in violation of that order, then the Court will have to

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decide the sanction, including whether or not to strike or limit his sworn declaration.

United States District Court
Northern District of California

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However, with respect to those other government employees who have not submitted

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declarations, they need not be produced at the March 13 hearing. We will address the

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necessity (if any) of their testimony in due course.

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Plaintiffs remain free to bring those witnesses who will appear voluntarily.

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Counsel shall advise the Court whether they intend to produce any live witnesses by

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MARCH 11, 2025, AT 5 PM. If the answer is “no” on all counts, then the hearing will be moved

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to 1 PM (so the Court need not interrupt an ongoing criminal trial). If the answer is “yes,” and

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live testimony will be heard, then the hearing will take place as scheduled at 8 AM (and the

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criminal trial will be interrupted).

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IT IS SO ORDERED.

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Dated: March 10, 2025.

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WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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