Judge Nixes Challenge Over Unpaid Shutdown Work

Federal employees rally at the Capitol on Jan. 10, 2019, to protest the impasse between Congress and President Donald Trump over his demand to fund a U.S.-Mexico border wall, which caused a partial government shutdown that has stretched for weeks. (AP Photo/J. Scott Applewhite)

WASHINGTON (CN) – Denying federal employees a pass on working unpaid during the government shutdown, a federal judge ruled Tuesday that bending to their demands would be “profoundly irresponsible” and throw the nation into “disarray.” 

“At best it would create chaos and confusion,” U.S. District Judge Richard Leon said from the bench this afternoon. “At worst, it could be catastrophic.”

Leon acknowledged the difficult position in which the shutdown has placed federal workers, who started missing paychecks last week, but said he could not grant the relief they were after. He said blocking the government from forcing employees to come in without pay could cause major disruptions to crucial government operations.

“It’s hard not to empathize with the plaintiffs’ positions,” said Leon, an appointee of President George W. Bush. “They’re not the ones at fault here.”

Leon issued his verdict after more than an hour of arguments today from three different groups of employees and unions who brought suits in the U.S. District Court for the District of Columbia after the shutdown began on Dec. 22.

Each group of employees asserted slightly different claims and asked Leon for somewhat different relief, but all at least requested a temporary restraining order that, among other things, would stop the government from forcing certain employees to work without pay.

Currently, some employees, referred to as “excepted employees,” are required to report to work even though the funding bills for the agencies that employ them are caught up in the ongoing fight over whether Congress will provide President Donald Trump with $5 billion in new funding for his long-promised wall along the southern border.

Congress has passed a bill to award those employees backpay after the shutdown ends, and Trump has promised to sign the legislation.

But the attorneys who argued Tuesday on behalf of the federal employees said that promise is of little use now, as the shutdown has made it difficult for some people to make ends meet, especially those who have child care obligations or high medical bills.

Paras Shah, an attorney with the National Treasury Employees Union, said by forcing employees to come to work without pay, the Trump administration is essentially obligating Congress to make payments it has not authorized.

“That is not how our constitutional structure anticipated this working,” Shah said Tuesday.

Shah also said the Office of Management and Budget has injected “elastic language” into a federal law that allows some essential employees to keep working during a shutdown, allowing agencies to force more than just the bare minimum staff to come in and work without pay.

But Leon struggled throughout the hearing to determine what he could do about the workers’ plight.

“So here’s the problem, Congress appropriates funds, not the judiciary,” Leon said. “What are we going to pay them with?”

Molly Elkin, who represents the National Air Traffic Controllers Association and a group of air traffic controllers, suggested the money could come out of the Treasury Department’s judgment fund.

Elkin, with the firm Woodley & McGillivary, pleaded with Leon to “drop your legal hammer” on the government, saying morale in the high-stress job of air-traffic control is plummeting as employees worry about how they will pay for basic expenses if the shutdown continues much longer.

“They’re not going to be able to pay for gas to get to the towers,” Elkin said.

The stream of lawsuits over the shutdown began with employees who did not receive overtime pay for work they performed on the day the shutdown began. But the trickle sped up as employees started missing paychecks and as the president and congressional leadership dug in for a protracted fight over funding the government.

The shutdown, already the longest in U.S. history, appears no closer to a resolution, as Trump insists on receiving money for his wall as part of any deal to reopen the government. House Democrats have insisted he will get no such money and have passed several funding bills to that end. Senate Republican leadership has said the chamber will not take up any bills Trump will not sign, locking Congress up for the foreseeable future.

While Leon rejected the motions for a temporary restraining order, he quickened the pace for briefing on the employees’ requested injunction in the case, setting a hearing for Jan. 31.

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