Lawsuits That Could Change the Shutdown Calculus

Litigation is moving through the courts that could make it harder for the government to require that federal employees work without pay, putting pressure on Washington to avoid a future impasse.

Senate Appropriations Chairman Richard Shelby is the top Republican on the bipartisan group of bargainers working to craft a border-security compromise in hopes of avoiding another government shutdown.
AP Photo/J. Scott Applewhite
Feb. 11, 2019, 8 p.m.

A series of lawsuits could determine how much political pain lawmakers and the administration would have to endure in the next government shutdown.

A Friday deadline to fund the government is approaching, and talks are ongoing over the details of a border-security agreement. But as lawmakers search for a way to avoid another lapse in appropriations, the legal fallout continues from the 35-day impasse that ended in January.

Two federal-employee unions are suing the administration to stop the government from requiring employees deemed essential—from air-traffic controllers to IRS workers processing tax returns—to work without pay during a shutdown. The litigation is far from over, but a victory for the plaintiffs could make it much more difficult to keep government services running during a lapse in appropriations and upend any political calculations lawmakers or the White House make in future shutdowns.

“If they win the lawsuit and [the government is] prevented from bringing people back, that would certainly put more pressure on the government to settle things and reopen,” said Judy Conti, government-affairs director at the National Employment Law Project.

The National Treasury Employees Union and the National Air Traffic Controllers Association say their lawsuits are meant to protect thousands of federal workers from another month-long stretch of working with no pay—with some workers facing eviction or resorting to food banks—and perhaps force a faster resolution to government shutdowns. If the government shuts down this Friday, the unions could see more court action as soon as next week.

Hundreds of thousands of workers were furloughed without pay during the last shutdown, and some, deemed “essential,” were required to work despite not receiving a paycheck. As the shutdown dragged on and filing season loomed, the IRS decided to recall more than 40,000 employees to process tax returns, also without pay.

“Now federal employees have to face the prospect of having to go through that nightmare yet again,” NTEU national president Tony Reardon said.

In January, the union filed two lawsuits challenging the government’s legal standing to require federal employees work without pay. In its first lawsuit, the NTEU argues that requiring individuals to work without timely pay violates the Fair Labor Standards Act.

A second lawsuit challenges the constitutionality of the statute—known as the Antideficiency Act—that allows the administration to keep some employees working during a shutdown. By requiring federal employees to work with the expectation that they will be paid later, the administration is essentially spending money Congress hasn’t yet authorized it to spend, the union said in its lawsuit.

“If employees are working, they must be paid, and if there is not money to pay them, then they should not be working,” Reardon said in a separate statement. “If this premise were strictly enforced, as we argue it should be, we believe it would prevent future shutdowns because no one could be forced to work without pay.”

The suit by the National Air Traffic Controllers Association, also filed in January, claims a similar violation of the FLSA and argues that not paying workers violates the Fifth Amendment by denying them their right to property—in this case, their timely pay—without due process.

The lawsuits have progressed even after the original shutdown ended because they fall under the “capable of repetition, yet evading review” doctrine—given the Friday shutdown deadline and the possibility of future shutdowns, Conti said. The court has consolidated the series of shutdown lawsuits, handing down rulings affecting both unions.

The administration prevailed Jan. 15 when U.S. District Court Judge Richard Leon refused a temporary restraining order that would have forced the government to pay employees required to work during the shutdown.

Leon said a temporary restraining order—an expedited, pretrial order preventing an action that could cause irreparable damage—would lead to “disarray,” adding that the air-traffic-controllers association was asking the judge to order the Federal Aviation Administration to pay employees with money it wouldn’t have. For IRS workers, the judge said preventing the agency from recalling workers to process tax returns could create “chaos and confusion.”

“It would be profoundly irresponsible under these circumstances—with no record whatsoever telling me what government functions would be impacted—for me to grant that TRO,” Leon said in his opinion.

But the judge’s decision was against an immediate order to allow workers to stay home, and future requests for action could go the unions’ way.

At a Jan. 31 status hearing on the lawsuits, Judge Leon indicated that he would be more open to the unions’ side, at least in terms of whether the IRS can recall workers who were previously deemed nonessential. Leon said the administration had a “very steep uphill battle” to defend the recall of IRS workers to process tax returns, Government Executive reported.

The Jan. 31 hearing set out a timeline to quickly decide the cases in the event of another shutdown. The next time the court meets is Feb. 22, when, if the government shuts down Friday, the judge will consider a preliminary injunction against requiring federal employees to work without pay. A preliminary injunction has a longer legal process than a temporary restraining order, and the hearing allows both sides to make their case on whether it should be imposed.

The employees' groups hope that a victory would make it politically unpalatable for lawmakers and administrations to shut down the government again. But while Conti said it could change how Washington approaches a spending fight, she isn’t optimistic that it would make shutdowns a thing of the past.

“I don’t know that it would all be solved too easily just because they won in court; I think there’s a lot procedural wrangling that would be left to do,” Conti said. “And again, I stand by the basic premise that no rational person thought there was a path to victory in the last shutdown for the Trump administration, yet it still happened and dragged on for 35 days, so I’m not so sure that this would make all that much of a difference if, God forbid, we’re in a shutdown again.”

Erin Durkin contributed to this article.
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