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Federal Employees Forced To Work Without Pay During The Shutdown Lost The First Round In Court

The judge denied requests for temporary restraining orders that would force the government to pay workers or give employees a choice about whether to work without pay.

Last updated on January 15, 2019, at 3:07 p.m. ET

Posted on January 15, 2019, at 1:53 p.m. ET

Federal air traffic controller union members protest the partial government shutdown Jan. 10.
Jonathan Ernst / Reuters

Federal air traffic controller union members protest the partial government shutdown Jan. 10.

WASHINGTON – Air traffic controllers and other federal employees forced to work without pay lost the first round in court on Tuesday — the 25th day of the partial government shutdown — with a judge denying requests to force the government to pay them.

US District Judge Richard Leon rejected requests for temporary restraining orders in three cases — one asked for an order forcing the government to pay workers now, another asked for an order prohibiting the government from making any employee work without pay, and a third asked for an order giving federal workers a choice about whether to work without pay.

Leon denied them all. Reading his decision from the bench after hearing arguments, the judge said that although he empathized with federal workers — “They’re not the ones at fault,” he said — the court was not just another “source of leverage” in what he characterized as a “political problem.”

The judge found that the plaintiffs failed to meet the criteria for immediate, “extraordinary” action in the form of a temporary restraining order, saying that the public interest weighed against it. At best, Leon said, such orders would cause “chaos and confusion,” and could put lives at risk.

During arguments, Molly Elkin, the lawyer representing the National Air Traffic Controllers Association, told the judge that when the union’s president was asked if the skies are safe, her refrain had been that they are — “for now.” But it wasn’t clear what would happen as the stress of working without pay and being forced to do a job without support continued to build, she said, comparing the situation to a surgeon being asked to work alone without any nurses or resources.

The judge’s decision Tuesday does not end litigation over the shutdown. Assuming the shutdown continues, Leon will hear arguments on Jan. 31 on the plaintiffs’ motions for a preliminary injunction, where federal workers will again argue that the court should step in on their behalf. There are also cases pending filed by federal workers in the US Court of Federal Claims seeking monetary damages for the time they aren’t paid.

“We are eager for the fight ahead,” Paras Shah, the lawyer who argued Tuesday on behalf of the National Treasury Employees Union, told BuzzFeed News after the hearing.

Leon expressed skepticism about the federal workers’ requests during arguments, noting it was all but guaranteed they would get back pay once the shutdown was over. Shah argued the prospect of backpay didn’t fix the constitutional violation that they alleged was happening now.

The National Treasury Employees Union asked for an order prohibiting the government from requiring anyone to work without pay, arguing the US Constitution was clear that the government could not spend money or take on new obligations not appropriated by Congress. Leon asked about the “chaos” caused by an order immediately requiring all workers to stop and go home. Shah suggested a 72-hour delay to give Congress and the executive branch time to work out a deal, or at least prepare. If there was chaos, Shah argued, it was of the government’s “own making.”

Elkin argued that the court could order the Federal Aviation Administration to pay workers through the Treasury Department’s Judgment Fund, a source of money that Elkin said had already been appropriated and that the government used to pay court judgments. Elkin said the government had violated workers’ due process rights by cutting off their pay without any notice or recourse, comparing it to cases Leon handled in the past involving a veteran seeking benefits and hurricane victims seeking FEMA funds.

“We are here to ask you to drop your legal hammer,” Elkin said.

Leon said he was flattered and impressed Elkin cited his old opinions, but said those were different circumstances, and that ruling for federal employees now would have a “chaotic” effect. Elkin argued the cases were not so different, given the harm workers faced as they were unable to pay for basic expenses like groceries and gas — without gas money, air traffic controllers couldn’t get to the airport towers, she said.

In the third case, brought by individual federal employees who work for the Department of Transportation, Justice Department, and Department of Agriculture, attorney Michael Kator argued for an order giving employees a choice about whether to work without pay. Some employees would still likely show up, he said, but others would have the ability to try to find another way to earn money. Kator also highlighted the “dire circumstances” facing workers, noting, for instance, that workers’ health insurance would expire at the end of the month if they couldn’t pay next month’s premium.

Leon asked what the lawyers thought about a potential order allowing federal workers to get a second job — the judge repeatedly cited driving for Uber or Lyft as examples — during off-hours. Neither side was in favor. Kator said it would be a step in the right direction, but also said that an air traffic controller working an eight-hour shift might not have the energy to drive an Uber for another 10 to 12 hours. Elkin said many air traffic controllers are being required to work overtime, and taking another job on top of that would be an additional stressor.

Justice Department lawyer Daniel Schwei said the government “fully appreciates” that the shutdown put workers in a difficult position, but said that didn’t mean the court could take action. The court should not insert itself in a political dispute, he said, and argued that the “severe” impact of a temporary restraining order weighed against any immediate court intervention.

A second Justice Department lawyer, Adam Kirschner, argued against the air traffic controllers’ request. He said the union’s brief didn’t specify that they were asking for money from the Judgment Fund, and he argued broadly that the Constitution was clear that no money could be taken from the Treasury without a congressional appropriation. On the issue of whether there was due process, he argued the union had entered into a “memorandum of understanding” with the Federal Aviation Administration several days before the shutdown began on Dec. 22. (The fact that Schwei and Kirschner argued Tuesday meant they were deemed “excepted” and were also working without pay.)

Kirschner did have one small piece of good news for air traffic controllers: In response to Elkin’s argument that the FAA had enough money to pay employees who worked Dec. 23, he said the agency was aware of the issue and was working to address it.

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