A federal court has authorized the deposition of Homeland Security Secretary Kristi Noem and senior officials from the Department of Homeland Security (DHS) as part of a lawsuit concerning staffing cuts at the Federal Emergency Management Agency (FEMA). U.S. District Judge Susan Illston ordered expedited discovery in the case following conflicting statements from a Justice Department attorney and a top FEMA official regarding the decisions surrounding employee reappointments for this year.
In a ruling issued on March 3, 2023, Judge Illston confirmed that the plaintiffs could depose Noem along with Karen Evans, the senior official performing the duties of FEMA administrator. The judge also granted permission to question the chief human capital officers of both DHS and FEMA. Additionally, DHS and FEMA must produce relevant documentation related to the renewal or nonrenewal of Cadre of On-Call Response/Recovery Employees (CORE), along with communications regarding staffing reductions.
The lawsuit, initiated by unions and nonprofit organizations in late January, challenges the blanket non-renewal of several hundred CORE employees whose contracts expired at the beginning of the year. The plaintiffs argue that these staffing reductions breach provisions in the Post-Katrina Emergency Management Reform Act, which restricts DHS’s authority to make sweeping changes at FEMA.
The recent court order comes on the heels of contentious exchanges during a hearing, where Judge Illston indicated her initial inclination was to deny the plaintiffs’ motion for a preliminary injunction to halt further staff cuts at FEMA. She expressed concern that the “evidentiary record is not sufficiently developed” regarding whether DHS directed FEMA to implement staffing cuts or whether the nonrenewal of CORE employees was a standard practice based on supervisor recommendations.
During the hearing, Justice Department attorney Robert Bombard asserted that DHS did not influence the decision to not reappoint numerous CORE employees in January. This statement contradicted a previous declaration from Evans, who indicated that DHS had “decided not to reappoint” those employees.
Judge Illston emphasized the significance of this contradiction, questioning Bombard, “Surely she wouldn’t make that mistake.” Bombard, lacking a solid explanation for the discrepancy, acknowledged the complexity surrounding the case.
Central to the arguments is the extent of DHS’s authority over FEMA staffing decisions. Noem has publicly advocated for a significant overhaul of FEMA, suggesting it should be “eliminated as it exists today.” While FEMA temporarily paused the blanket non-renewals ahead of a winter storm in late January, the plaintiffs have pointed to a workforce planning exercise from December that contemplated a potential 50% reduction in FEMA’s workforce.
Danielle Leonard, counsel for the plaintiffs, contended that the pause in non-renewals was a direct response to the lawsuit, stating, “They’ve only paused it because we sued them, and they’re waiting to see what this court is going to do.” In contrast, Bombard characterized the December planning email as merely an exercise, clarifying that “there is no plan at this time” to cut FEMA’s workforce by the percentages mentioned.
Bombard further argued that granting an injunction would inadvertently make CORE staff “de facto permanent employees,” which contradicts the intended flexibility of the CORE workforce to adapt to the agency’s needs. He stated, “It’s not a one-way street. It’s not only ratcheting up.”
The unfolding developments in this case highlight the ongoing tensions surrounding staffing decisions at FEMA and the broader implications for disaster response management in the United States. As the depositions move forward, the legal battle will likely illuminate the complexities of governance and operational authority within federal agencies.
