Judge Consolidates Shutdown Lawsuits, Schedules Hearing This Week

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A federal judge on Tuesday will hear arguments on whether to issue a temporary restraining order blocking federal agencies from ordering employees to report to work without prompt pay during the partial government shutdown.

Last week, the National Treasury Employees Union, National Air Traffic Controllers Association and five federal workers each filed legal challenges against the practice of excepting some employees from a lapse in appropriations, arguing it violates the Fifth and 13th amendments of the Constitution. They also claimed that the Trump administration’s efforts to make the shutdown “as painless as possible” violate the Anti-Deficiency Act.

U.S. District Judge Richard Leon consolidated the three cases on Friday and scheduled a hearing for arguments over whether to issue a temporary restraining order against federal agencies for Monday, although that was postponed until Tuesday due to snow. Attorneys for the Justice Department attempted to delay a hearing until Jan. 22, but that request was denied.

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In a filing in support of the restraining order, NTEU attorneys noted that although excepted employees are guaranteed back pay when the government reopens, Office of Management and Budget Director Mick Mulvaney himself stated that the shutdown could continue for “a lot longer,” and argued that any missed paycheck can have serious and irreparable financial ramifications.

“Many [employees] cannot, or soon will be unable to, meet existing financial obligations without incurring debt, for which interest will accrue,” NTEU wrote. “Many of these same individuals, in contrast to their colleagues who have been furloughed, cannot seek additional work for pay during this lapse in appropriations, thus losing out on the opportunity to work for pay because of their excepted status. It is difficult to overstate the Catch-22 that these employees are in. Not only do they have to report to work without the prospect of payment during the lapse in appropriations, they are not allowed the time to look for and secure a job that would allow them to earn a living now.”

The Justice Department, in its motion to reschedule the hearing, described the lawsuit as an attempt to “insert this court into a budgeting dispute between the political branches,” and argued that federal employees are not being irreparably harmed.

“With respect to the [non-union] plaintiffs, their claim of irreparable harm is their ‘desire to cease working without pay without jeopardizing their property interest in continued federal employment,’” the government wrote. “A mere desire is not irreparable harm, and nothing in the plaintiffs’ declarations suggests that a postponement of eight days would itself cause them any irreparable harm . . . The NATCA plaintiffs’ claim of harm is pure economic injury, and it is well settled that interim economic injury is not irreparable harm.”

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