A judge on Tuesday refused to order the Trump administration to pay federal employees kept on the job during the partial shutdown, as the IRS said it was bringing back tens of thousands of employees to process tax returns.
U.S. District Court Senior Judge Richard J. Leon said he sympathizes with workers struggling to make ends meet, but he said he can’t wade too far into a political squabble between the legislative and executive branches.
He rejected a labor union’s demand that he order the government to pay air traffic controllers who are working without guaranteed paychecks and said it would be “profoundly irresponsible” for him to issue an order that lets essential workers decide to stay home if they’re not being compensated.
“At best, it would create chaos and confusion,” said the judge, an appointee of President George W. Bush. “At worst, it would be catastrophic.”
His reluctance to pay or trim the active workforce coincided with President Trump’s moves to put even more people on the job without pay.
The IRS said Tuesday it was recalling about half of its furloughed employees to work during tax-filing season, which starts Jan. 28, after the administration promised to get Americans their refunds on time.
SEE ALSO: IRS recalls major swath of workforce for filing season
Roughly 46,000 of the 80,000 workers on the IRS payroll will be required to report, compared to roughly 10,000 who remained on the job at the start of the shutdown.
The Federal Aviation Administration brought back 500 safety inspectors and plans to recall more, while the Food and Drug Administration said it recalled roughly 400 inspectors, including 150 who work on food safety.
Other FDA inspectors will examine items such as medical devices and drugs.
Judge Leon is managing a mounting set of lawsuits from workers who say the funding impasse, spurred by Mr. Trump’s demand for border wall funding, has already inflicted harm on people who have been working since the start of the shutdown 25 days ago.
More than 420,000 people are deemed “essential” and working without pay, while more than 300,000 more are furloughed at home and didn’t receive paychecks Friday.
Congress has passed legislation to pay them all at the end of the shutdown, but lawyers for the workers still on the job say they deserve immediate relief.
They wanted the judge to approve options ranging from immediate paychecks and extra damages, to permission to find paying side gigs.
Daniel Schwei, a lawyer for the Justice Department, said workers are “understandably frustrated” with the standoff, but the courts should not insert themselves into a fight that’s unfolding on both ends of Pennsylvania Avenue.
The department says tapping funds to pay workers without authorization from Congress would violate the Constitution.
Plaintiffs’ attorneys said the problem is that it’s not clear when the shutdown will end, as House Democrats refuse to pony up $5 billion in wall funding, Mr. Trump refuses to back down and the Republican-led Senate seeks a compromise that can win over the White House.
Federal workers are reportedly rationing insulin or selling personal possessions to make ends meet, while those who still must work need to provide for child care, yet cannot afford it.
“It’s hard not to empathize with the plaintiffs’ positions,” Judge Leon said, though he feared the judiciary would be used as “another source of leverage” in the fight.
Judge Leon’s refusal to grant immediate relief through temporary restraining orders was just the first step in the legal process.
He asked the parties to brief the court ahead of another hearing at the end of the month, as the court moves into the deeper legal issues involved, such as whether requiring employees to work without pay is akin to slavery — and thus a violation of the 13th Amendment.
Michael Kator, a lawyer for four employees of various agencies, argued just that. He also said workers should be free to get additional jobs that pay, noting some federal agencies prohibit the practice or force workers to get permission.
Judge Leon was intrigued by that idea. Over and over, he theorized that workers could drive an Uber car, wait tables at local restaurants or work at a grocery store outside of their typical eight-hour day.
Mr. Schwei said that could raise outside issues, such as a conflict of interest for the Uber driver who also works for the Transportation Department and oversees regulatory issues.
Molly A. Elkin, a lawyer for the air traffic controllers, said it’s unrealistic to think her clients could work part-time jobs after a grueling day of making sure airplanes take off and land safely.
“That is just going to be another stressor,” she said.
Instead, she emphatically asked Judge Leon to drop his “legal hammer” on the executive branch and pay the workers.
“How can you not do it?” she said, noting the skies won’t be protected forever. “They’re safe — for now, judge. For now, they’re safe.”
• Tom Howell Jr. can be reached at thowell@washingtontimes.com.
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