Court postpones lawsuit over shutdown -- because of the shutdown

January 16, 2019

A federal judge froze proceedings Wednesday in a lawsuit that seeks back pay and extra damages for essential employees forced to work without paychecks during the government shutdown.

The reason? The government is shut down.

Department of Justice attorneys requested the stay of the case because they are barred from working, “even on a voluntary basis, except in very limited circumstances” such as protecting human life or property.

Judge Patricia E. Campbell-Smith, of the U.S. Court of Federal Claims granted the request, saying the lapse in appropriations tied her hands.

“The court appreciates the ironic circumstance that the very subject of this case also triggers the parties’ inability to proceed with the litigation,” she wrote. “That said, neither the court nor the attorneys at the Department of Justice has the authority to change the present circumstances.”

The judge said when the shutdown ends, both sides should confer and submit an update on pending motions, including the plaintiffs’ requests to file an amended complaint and to certify as a class, since thousands of workers may seek redress.

Heidi Burakowicz, a D.C. lawyer, filed the lawsuit on behalf of two named employees in the Bureau of Prisons and, potentially, the 420,000 unionized federal workers who’ve been forced to remain on the job. The complaint says failing to pay employees who are still reporting to work violates federal labor law.

Previously, Ms. Burakiewicz was able to win damages worth minimum wage for hours worked, plus the full value of any overtime, for 25,000 workers affected by the 2013 shutdown. Workers typically receive back pay after a shutdown ends, so some have dubbed the damages “double pay.”

The decision to stay the present case is one of the quirkier byproducts of the partial government shutdown, which entered its 26th day Wednesday and centers on President Trump’s request for border-wall funding.

As the White House and House Democrats feud, government employees who’ve already missed a paycheck are suing in various courts to be made whole. Others say the government should let workers stay home or seek paying side gigs.

Some workers are reportedly taking drastic steps to make ends meet, such as rationing insulin or selling personal possessions.

The courts, meanwhile, are starting to grapple with the personnel limitations at the Justice Department.

Last week, the U.S. Court of Appeals for the Fifth Circuit shelved proceedings in the closely watched appeal of a mid-December ruling that said Obamacare was no longer constitutional, because the GOP tax overhaul gutted its “individual mandate” to hold insurance or pay a penalty.

Update hourly