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Sham, Fabrication, Chicanery: A Bad Day For DOJ Attorneys As Judge Orders Trump Regime To Eat Crow [1]
['This Content Is Not Subject To Review Daily Kos Staff Prior To Publication.']
Date: 2025-09-13
The Office of Personnel Management (OPM) ordered the firings of tens of thousands of employees across dozens of unrelated federal agencies. The OPM directed that the firings be characterized as do to poor performance, a lie. No performance review was ever conducted. The firings were simply blanket, across the board, and cruelly administered with recipients receiving an OPM mandated email falsely characterizing their firing as for poor performance.
Various fired employees and their union sued. A federal judge issued a temporary injunction against the firings, but the Supreme Court stayed that temporary injunction pending a full ruling on the merits by the trial judge. That ruling was released yesterday, you can read it HERE.
The decision uses the words in the title of this article to describe the government’s conduct, and the conduct of the government’s lawyers in the case.
When reading the case the issue may seem dense, but it is really quite simple. OPM did not have the authority to fire any employees outside of its own department. OPM only has the power Congress gave it and that is not among its powers. Accordingly, OPM was compelled to argue that it didn’t really fire, or order the firing, of the employees. OPM claimed the decision was actually mere guidance with individual agencies free to decide who, and how many, were fired.
In most cases resolving who did the firing would be a simple manner of reviewing the administrative record, the government’s documentation behind the firings. As the judge points out, said administrative record is controlled by the government.
First, the administrative record is created by the government. Accordingly, the government can create a self serving paper trail that is inconsistent with reality.
Second, the government provides the administrative record. The government can fail to produce materials harmful to its case, leaving gaps in the record.
The court found the government did both these things. Regarding the first point, the government, after this lawsuit was filed, began generating memos and directives where the OPM advised agencies that they had the discretion to decide who was fired. This post hoc rationale did not reflect the reality of firings that had already occurred.
As to the second point, after detailing numerous examples the judge notes “the record is scattered with innumerable references to calls, discussions, documents, and decisions” none of which are produced in the administrative record. In some cases the government had the hutzpah to cite these very same gaps in the record to declare “the record does not show that OPM” did anything wrong (see e.g. p. 14 of the decision).
In the words of the exasperated judge:
The “administrative record” submitted by the government is a sham. It does not facilitate judicial review: It frustrates it.
The judge clearly had enough regarding the following government statement:
OPM repeatedly clarified that “agencies are responsible for exempting whomever they want [from] . . . the President’s directive to dramatically reduce the size of the federal workforce.”
The government brief is obviously representing that it is quoting something (the part I italicized). Regarding that quote the judge stated:
The “quote” proffered by government counsel James D. Todd Jr. is a fabrication. Government counsel pruned a portion of Peters’s actual email (“agencies are responsible for exempting whomever they want”) from its narrow context (an OPM provided list of categories for exemption) and grafted it onto a new, fabricated context found nowhere in the relevant email chain (“the President’s directive to dramatically reduce the size of the federal workforce”). The result: A statement concerning OPM authored and approved exemption categories becomes, by brackets, ellipses, and government counsel’s chicanery , a shot through the heart of plaintiffs’ case. Counsel’s ersatz evidence fails to persuade.
I note that it sucks to be James D. Todd Jr., fabricator in chief for the Department of Justice.
Having determined the firings were illegal (arbitrary and capricious) the judge then turned to the problem of remedy and expressed frustration with recent unexplained rulings from the Supreme Court’s shadow docket allowing even illegal firings. The judge also faced the reality that much of the question is moot with employees moving on.
In the ordinary course, this order would, as required by the APA, set aside OPM’s unlawful directive and unwind its consequences, returning the parties to the ex ante status quo, and as a consequence, probationers to their posts. But the Supreme Court has made clear enough by way of its emergency docket that it will overrule judicially granted relief respecting hirings and firings within the executive, not just in this case but in others. And, too much water has now passed under the bridge since the Supreme Court stayed this Court’s preliminary injunction reinstating probationary employees. The terminated probationary employees have moved on with their lives and found new jobs. Many would no longer be willing or able to return to their posts. The agencies in question have also transformed in the intervening months by new executive priorities and sweeping reorganization. Many probationers would have no post to return to.
However, the judge notes that the plaintiffs “continue to be harmed by OPM’s pretextual termination ‘for performance,’ and that harm can be redressed without reinstatement.”
Accordingly, the judge fashions his order requiring the Trump Regime to eat crow on that point. The employee files for every terminated employee must be updated to reflect that they were not terminated for performance. Further, each employee must be sent a letter advising them that, “You were not terminated on the basis of your personal performance.” The letters cannot include language questioning the legitimacy of the court’s decision or order. Finally, the government is forbidden to represent to third parties that the employees were terminated for poor performance.
The government must complete this apology tour by November 14th and file certification with the court that it has done so by November 21st.
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