Here in a flawlessly terse five pager, the request to "stay" the paychecks. . . is denied.
. . .This order pauses to address defendants' attempts to frustrate fact-finding. The defense submitted a single declaration, from defendant Charles Ezell, in opposition to plaintiffs' motion for a TRO. The undersigned ordered defendant Ezell to appear for cross examination at the subsequent evidentiary hearing, or, alternatively, to submit to a deposition at his convenience. Plaintiffs were likewise ordered to make their declarants available for examination. Defendants chose to withdraw the Ezell declaration to avoid submitting its declarant to examination, in violation of this Court's order. Defense counsel "understood coming out of the TRO hearing" that the undersigned "wanted to know what was actually communicated" during several phone calls between OPM and the relief defendant agencies (Dkt. No. 120). The purported reason to withdraw was that Ezell was not present at those calls, so his testimony "would have scant evidentiary value" anyway (Dkt. No. 75 at 12).
The undersigned did not impose sanctions at the time, as it appeared defendants had righted a wrong they would not repeat. It was a surprise, then, that defendants submitted the declaration of Noah Peters, a "senior advisor" at OPM (Dkt. No. 77). Defense counsel represented to the Court that Peters participated in the calls at issue, but Peters declined to swear to it (ibid.). Indeed, Peters did not claim personal knowledge as to anything in his declaration. Persuaded by defense counsel's argument, the undersigned afforded the Peters Declaration scant evidentiary value.
Defendants refused to make any further effort to get at the truth, arguing that the only way forward was to wait on them to produce their administrative record, and "for gaps in that record to be litigated, to be supplemented by oral testimony, if necessary" (Dkt. No. 120 at 22). Defendants otherwise complained that the rapid pace of litigation prohibited the production of anything more than the Ezell declaration (Dkt. No. 120 at 20-21).
It is again surprising, then, that defendants managed (in the span of a single day) to muster a half-dozen declarations from relief defendants. None of these declarations, or the facts therein, were made available to the Court during its consideration of the TRO or PI now in place. This is a last-ditch attempt to relitigate those orders on a new, untested record. . . .
Excellent -- and Erin go brah!
नमस्ते
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