Overwhelm, delay, and stonewall: the Justice Department's lawless litigation playbook

DOJ has deployed an aggressively obstructionist strategy to avoid accountability for illegal firings and decimate the career workforce. Here's the latest on my lawsuit challenging my removal.

As many of you know, I was fired from the Department of Justice in March, and I am now appealing my termination. This is proving to be a taxing and demoralizing process, largely due to the stunningly defiant defense strategy that DOJ is employing. But don’t worry, I am persevering, because I believe our country is on a dangerous slide toward authoritarianism. We all need to do our part to fight back. This is mine.

This post might be a bit in the weeds, but I think it’s important to understand how DOJ is manipulating a little-understood legal process to sabotage the nonpartisan federal workforce. It’s all part of a master strategy to clear the way to install political loyalists throughout government. We saw evidence of this recently, with Pam Bondi’s firing of DOJ’s nonpartisan ethics director—I explain here why that move is truly alarming. So please keep reading.

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My case against DOJ should be a slam dunk, because I was fired without cause and without due process, both of which are clearly required by law. Just six months ago, had I been fired in this manner, I would have been quickly reinstated with backpay. But my case has not been quickly resolved, because DOJ is refusing to play by the rules and instead working to sabotage the legal protections in place for nonpartisan career experts.

Fired career employees like myself are required to appeal through an administrative agency called the Merit Systems Protection Board (MSPB), which I have done. We cannot file a regular lawsuit in court without first “exhausting” this administrative process. So DOJ’s defense strategy is to try to break the MSPB system. There are several elements to this strategy.

1. Overwhelm. DOJ has illegally fired—and is continuing to fire—so many people that the MSPB appeal system designed to handle these cases has become overloaded, backlogged, and ineffectual.

2. Delay. In my case and others, DOJ has raised frivolous and time-consuming procedural challenges, including claiming that the MSPB lacks jurisdiction to adjudicate these appeals. This is directly at odds with well-settled law (which the experienced employment lawyers handling the cases well know).

3. Stonewall. When the first two tactics prove insufficient, DOJ is simply refusing to engage in good faith in the MSPB process. DOJ’s lawyers are now routinely ignoring longstanding rules, refusing to make required disclosures, and flouting the orders of administrative judges.

In my case, DOJ initially sought to consolidate my case with several others and to stay all of the proceedings. In plain English: they asked to put the legal process on pause—indefinitely. Thankfully, on May 22, the presiding judge denied DOJ’s request and ordered the parties to proceed with discovery. My attorney served DOJ with discovery requests in June, including requests for documents concerning my termination and for depositions of the officials involved in my firing.

However, none of this got us anywhere, because DOJ decided to knock over the checkers set. On July 9, DOJ’s lawyers responded to my discovery requests with what a certain high-ranking DOJ official might describe as saying “f*** you” to the court. DOJ’s lawyers wrote:

After fully considering Appellant’s request for discovery in these proceedings … the United States Department of Justice … respectfully informs Appellant, Elizabeth Oyer, and her counsel, James Eisenmann, that additional information is not needed in this matter as the facts are not in dispute.… Appellant was removed from her position from OPA under Article II of the United States Constitution. Thus, because the relevant questions are purely legal and do not require factual development, any further discovery in this matter is not needed “to obtain relevant information needed to prepare the party’s case.” 5 C.F.R. § 1201.71. No further discovery is warranted as Appellant’s interrogatories, requests for production, requests for admission, and depositions exceed the scope of permissible discovery and represent an improper incursion into the authority and discretion of the Agency. (See the complete document here.)

A couple things are remarkable about this paragraph. The cavalier and dismissive tone is one. They “respectfully” inform me that they won’t be complying with the law? I’d say that if DOJ had *any* respect for me, for my public service, or for the legal process as a whole, it would drop the shenanigans and play by the rules.

Perhaps more remarkable is this statement: “the facts are not in dispute.” The facts related to my firing are well-known at this point. The whole Mel Gibson incident. I won’t repeat it here. When I first shared this story, Deputy Attorney General Todd Blanche publicly accused me of lying. So it came as a bit of a shock to learn that DOJ now does not contest the facts surrounding my firing.

It sounds like they are admitting everything, which you might think is a good thing. But they’re not coming clean. What they are saying is that it does not matter that I was fired without cause, without due process, and in retaliation for protected whistleblowing. They are saying that they don’t have to follow the law at all. They can just do whatever they want whenever they feel like it.

The implications of this are enormous. They reach far beyond my case. The Department is trying to erase legal protections for federal employees that are nearly a half-century old. The Civil Service Reform Act of 1978 was enacted by Congress to protect the nonpartisan federal workforce throughout government. Now, the Executive Branch by fiat is seeking to eviscerate that statute.

The New York Times reported on this issue today, featuring coverage of my case. Here’s an excerpt from the story:

Ms. Oyer, one of dozens of Justice Department employees fighting their terminations before the protection board, said the administration’s legal tactic made a mockery of the board’s role.

“They are openly defying longstanding laws and specific directions of the presiding judge,” Ms. Oyer said in a statement. “They are working to sabotage the protections in place for nonpolitical civil servants,” part of what she called a broader effort “to install political puppets in place of nonpartisan experts throughout the Department of Justice.”

The president, she added, “is building a team of loyalists who will use their official positions to carry out his revenge agenda, and he is clearing out people of principle who may stand in his way.”

The Department of Justice declined to comment. Because what could they possibly say?