A federal judge froze proceedings Wednesday in a lawsuit that seeks back pay and damages for essential employees forced to work without paychecks during the government shutdown.
The reason for the halt? The government is shut down.
Justice Department lawyers requested the stay, saying they generally are barred from working during the shutdown, except in limited circumstances such as protecting human life or property.
Judge Patricia E. Campbell-Smith of the U.S. Court of Federal Claims approved the request.
“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.”
Her ruling comes as courts across the country are grappling with the partial shutdown, which began Dec. 22.
The courts’ funding technically lapsed that day, along with nine federal departments comprising dozens of agencies.
Courts say they have been able to use fees and other perennial money to keep running at least through Jan. 25.
“But at some point in the near future, existing funds will run out if new appropriated funds do not become available,” the courts said.
Still, the Justice Department, which is the world’s biggest law firm, saw its funding lapse, cutting its ability to provide lawyers for most of the civil cases the government is pursuing or where it’s a defendant.
They have asked for stays in hundreds of cases nationwide.
Some judges are more accommodating than others.
“Denied,” wrote Judge Philip S. Gutierrez, an appointee of President George W. Bush to the court in central California, in a Monday order rejecting the Justice Department’s request to stay a case dealing with DACA recipients.
A federal judge in Michigan, meanwhile, had stayed a major case involving deportation of Iraqis — but he reversed himself this week and ordered the case to resume. U.S. District Judge Mark A. Goldsmith said he had granted the stay, figuring the shutdown would be short. That no longer is the case, he wrote.
“The court must treat the government like any other litigant; a corporate defendant claiming inability to fund lawyers or other necessary participants in litigation due to an intra-corporate dispute about paying them would not receive an indefinite amount of time to resolve that dispute while its case remained stayed,” he wrote.
Also, Judge Goldsmith said the stakes are too high to force government lawyers to seek permission every time they face urgent requests about the Iraqi detainees. There are fears that one would pose a threat to the community, if he were released, while another was mistakenly deported and may face religious persecution back home.
“Considering the stakes at issue in the case, the claimed danger to the community and to individual petitioners, the stay no longer seems appropriate,” the judge wrote.
The Justice Department says in cases where judges refuse to delay action, lawyers can work during the shutdown, though they won’t be paid until after it ends.
Other courts have been willing to put big cases on hold.
The U.S. Court of Appeals for the 5th Circuit recently shelved proceedings in the closely watched appeal of a mid-December ruling that said Obamacare is no longer constitutional because the GOP tax overhaul gutted its “individual mandate” to hold insurance or pay a penalty.
In the federal worker case, Judge Campbell-Smith asked both sides to submit an update on their motions when the shutdown ends. Before the stay, the plaintiffs’ were trying to file a revised complaint and certify affected employees as a class, since thousands of workers may seek redress.
D.C. lawyer Heidi Burakiewicz filed the lawsuit on behalf of two named employees in the Bureau of Prisons and, potentially, the 420,000 unionized federal workers who have been forced to remain on the job. The complaint says failing to pay employees who are still reporting to work violates federal labor law.
“Of course, I and my clients are disappointed with any delay, but this is nothing more than a delay,” Ms. Burakiewicz said of Wednesday’s decision. “It is not going to change the outcome of the case or our intent to recover back-payment or damages on behalf of all the essential workers who are continuing to go to work every day. It’s important to note the federal workforce continues to be harmed.”
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.”
• Tom Howell Jr. can be reached at thowell@washingtontimes.com.
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