Judge declines to force government to pay federal employees working during shutdown

(Brittany Greeson | The Washington Post) Cheryl Monroe, 57, a federal employee on furlough, at her home in Ecorse, Mich., on Tuesday.

Washington • A federal judge in Washington on Tuesday refused to force the government to pay federal employees who have been working without compensation during the partial government shutdown, rejecting arguments from labor unions that unpaid work violates labor laws and the Constitution.

U.S. District Judge Richard Leon said it would be "profoundly irresponsible" to issue an order that would result in thousands of employees staying home from work.

“At best it would create chaos and confusion,” Leon said. “At worst it could be catastrophic ... I’m not going to put people’s lives at risk.”

Leon ruled against a consolidated claim that the National Treasury Employees Union and the National Air Traffic Controllers Association filed against the government, alleging that employees should not be forced to work without pay. The list of unionized employees who have had to work with pay during the shutdown include the Internal Revenue Service, Customs and Border Protection, the Food and Drug Administration, the Environmental Protection Agency, the National Park Service, the Agriculture Department, the Securities and Exchange Commission, and the Federal Communications Commission.

The American Federation of Government Employees is among three unions, along with a number of government employees, that have filed suit against the Trump administration, alleging that employees should not be forced to work without being paid.

Leon ruled from the bench during the hearing in Washington on Tuesday, declining to issue a temporary restraining order compelling the government to pay its employees. His move keeps the status quo, allowing the shutdown to continue with no end in sight.

Molly A. Elkin, an attorney working on the lawsuit by the air traffic controllers union, had implored the judge to "drop your legal hammer on the defendants" and to tell the government and the president to "get their hands out of the pockets of the air traffic controllers."

"We need you, judge, to give this workforce hope that at least one branch of the American government has their back."

Daniel Schwei, a Justice Department attorney defending the government Tuesday, acknowledged the strain on employees working without pay, but urged the judge not to insert himself in a political dispute between Congress and the president.

An order from the court, Schwei said, would prevent FBI agents, prison guards and customs inspectors from working and cause "chaos and disruption."

Greg O'Duden, the general counsel for the National Treasury Employees Union, which has filed two lawsuits against the government, said he had hoped Leon would rule in the unions' favor, something he said would have "put pressure on political branches to come to some resolution and end the shutdown."

The lawsuit before Leon argued that forcing certain employees to work without pay violates the law establishing that federal agencies cannot spend money that has not been authorized by Congress - the union argues that by promising pay later, it is spending money that Congress hasn't yet appropriated, O'Duden said.

"What we have here is the executive branch making people go to work, not paying them, but yet is giving out IOUs," O'Duden said. "You can't do that. It's a violation of the appropriations clause of the Constitution."

The union, which represents 150,000 members at 32 federal agencies and departments, also filed a lawsuit on behalf of Customs and Border Protection officers alleging that forcing employees to work without pay violates the Fair Labor Standards Act. Among other things, the law requires that employees be paid a minimum wage and overtime pay.

Leon also heard from the National Air Traffic Controllers Association, which filed suit against President Trump and other top officials last week. More than 24,000 Federal Aviation Administration employees are working during the partial shutdown without pay.

The union was seeking a temporary restraining order against the federal government for allegedly violating controllers' constitutional rights under the Fifth Amendment. Those working without pay must show up because their positions are considered vital for "life and safety." More than 17,000 others are furloughed.

"Each day, the FAA's Air Traffic Controllers are responsible for ensuring the safe routing of tens of thousands of flights, often working lengthy, grueling overtime shifts to do so," the lawsuit says. The job "requires such rare skills that the FAA struggles to maintain a full complement of certified Air Traffic Controllers."

Federal workers already have suffered "immeasurable losses," the plaintiffs allege, including being unable to pay for medical treatment or travel to funerals for family members; some have jeopardized their security clearances by missing court-ordered alimony payments, and others have failed to make loan repayments, incurring penalties.

"Measuring the weight of these individual losses as they are multiplied across the thousands of Air Traffic Controllers represented by NATCA becomes unbearable," NATCA attorneys wrote. "These are losses for which future monetary compensation is insufficient."

Even as he denied the unions' request, the judge was sympathetic to the individual stories of federal workers struggling to pay for childcare and household expenses during the government shutdown. But Leon said he could not overstep his role as a judge to intervene in a political problem. Congress, not the judiciary, he noted, controls federal government spending.

"There is no doubt that real hardship is being felt," Leon said. But "the judiciary is not and cannot be another source of leverage" in resolving political "squabbles."

Leon emphasized several times during the hearing that both Congress and the president have said that furloughed employees and those working without pay would eventually receive paychecks.

Attorneys for the Justice Department had asked for more time — until Jan. 22, after the Martin Luther King Jr. holiday — to formally reply in writing to the lawsuits. Schwei and Adam Kirschner, senior trial counsel for the federal programs branch of the Justice Department’s civil division, argued to Leon that “the legislative landscape is in flux” and that the court should not step “into a budgeting dispute between the political branches.”

According to legal scholars, some of the shutdown legal arguments are novel. A lawsuit filed on behalf of two corrections officers from the Federal Bureau of Prisons, a Transportation Department air traffic control worker and a food inspector with the Agriculture Department, alleges that requiring employees to work without pay violates the 13th and Fifth amendments. The 13th Amendment, ratified after the Civil War, abolished slavery and involuntary servitude.

“They’re required to work without being paid — that is the essence of involuntary servitude,” Michael Kator, an attorney for the plaintiffs, told The Washington Post. “The government has absolutely violated famous constitutional rights.”

Kator also filed a motion for a temporary restraining order on Friday, asking for immediate relief for federal employees.

"The real story is the effect this is having on people's lives," Kator said. "It is incredibly unfair that federal employees are made to bear the brunt of this. They have no say and they're the ones who are taking the hits with some pretty dire consequences."

Rick Heldreth has worked in federal prisons since 1997, drawn to the work for the job security, good salary and benefits. But he and his colleagues at United States Penitentiary Hazelton in West Virginia have been working without pay since the government shut down on Dec. 22, sapping morale and leading to an uptick in violent incidents, he said. Now Heldreth's union, the American Federation of Government Employees, has sued the Trump administration to try to recoup lost wages.

"The biggest thing to me is these lawsuits are hopefully a deterrent to the government in the future to stop repeatedly doing this," said Heldreth, who was involved in another lawsuit filed after the 2013 government shutdown. "Maybe they won't use federal employees as a negotiating tool."

Michael LeRoy, a professor at the University of Illinois College of Law, said meeting the definition of involuntary servitude is extremely high. But he said it is wise of lawyers to try different legal approaches, because a government shutdown with no end in sight is uncharted legal territory.

LeRoy said he does not believe the government will end the shutdown should Leon rule in favor of plaintiffs Tuesday. Instead, the judge probably will grant a government motion to delay the ruling, something that typically happens in novel legal territory, he said. But the longer the shutdown lasts, he said, the more arguments plaintiffs can make that people are being harmed.

"There isn't an endgame in sight and that gives … the plaintiffs more credibility in arguing that there are limits as to how long somebody can be ordered to work without pay," he said.

Had the government lost, it would have been costly.

A group of federal workers sued after the 2013 government shutdown, which lasted 16 days. They argued that failure to pay federal workers on their regularly scheduled payday violated the Fair Labor Standards Act. A court agreed, ruling that the FLSA requires on-time payment of any minimum or overtime wages earned by employees falling within its coverage. It ordered the government to pay double the amount owed them. Approximately 25,000 employees are still waiting to receive those damages.

The lawyer who won the case, Heidi Burakiewicz, filed the first lawsuit of this shutdown on Dec. 31, on behalf of the American Federation of Government Employees. It alleges that the Trump administration was illegally forcing more than 400,000 federal employees to work without pay. The two named plaintiffs, Justin Tarovisky and Grayson Sharp, are corrections officers with the Federal Bureau of Prisons. The lawsuit seeks back pay.

"We want to send the message: Stop the shutdown," Burakiewicz said. More than 5,000 people have emailed her law firm seeking to join the complaint or offering support, and she said they often hint at panic: "'I've got 3 kids, I've got $200 left, and I can't afford to keep working because I'm not getting paid.' It breaks my heart."

Heldreth, president of the Local 420 union in West Virginia, was a plaintiff in the 2013 lawsuit. He said more than 60 employees called out sick at the prison on Saturday, exacerbating tensions among the staff and inmates, and there were four violent incidents in a four-day period. The prison is a remote maximum-security facility where three inmates, including the notorious Boston mobster James "Whitey" Bulger, were killed last year.

There's frustration because it causes division among the staff," he said. "The ones that are going on are mad because the others called off, but the ones who called off, some of them live hours away and can't afford the gas or child care. Some have medical issues they can't afford right now. There's a lot of desperation."

Cheryl Monroe has worked as a chemist for the Food and Drug Administration for more than 30 years, eschewing a private-sector salary for government work she feels is meaningful and protects the American public. She has been out of work — and a paycheck — for more than three weeks and fully supports the National Treasury Employees Union’s lawsuit.

Monroe is president of the union's Detroit chapter and has slept only about two hours each night, fielding calls and emails from people who are working without pay and can't make ends meet. She believes the lawsuit is the most promising recourse.

"I believe that this administration does not pay attention unless you take them to court," Monroe said. "There's no talking to them. It has to be a judge or somebody else in a higher authority to snap them into reality. And so this is not a time for us to lay down and take this."

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The Washington Post’s Michael Laris and Ashley Halsey III contributed to this report.