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Unions: Anti-Shutdown Lawsuit Will Proceed, Despite Government Reopening

A hearing on whether to issue a preliminary injunction blocking agencies from forcing employees to work without pay has been converted into a status hearing.

Two federal employee unions said that they will continue to pursue lawsuits challenging the legality of agencies’ practice of requiring workers to work without pay during government shutdowns, even after the partial shutdown ended Friday.

Earlier this month, the National Treasury Employees Union, the National Air Traffic Controllers Association, and a group of five federal employees all filed separate lawsuits in the U.S. District Court for the District of Columbia arguing that agencies’ ability to require employees to work without pay during lapses in appropriations violates the Fifth and 13th amendments of the U.S. Constitution, and that the Trump administration’s expansion of which agency operations are deemed essential for the “protection of life and property” violates the Anti-Deficiency Act.

U.S. District Judge Richard Leon consolidated the lawsuits, and after a Jan. 15 hearing, denied a request for a temporary restraining order in the case, citing the potential for “chaos and confusion.” A hearing was scheduled for Thursday to consider whether to issue a preliminary injunction against agencies, but after lawmakers and President Trump last week reached a deal to reopen the government until Feb. 15, it was converted into a status hearing to determine next steps in the lawsuit.

Both NTEU and NATCA confirmed to Government Executive this week that the unions plan to continue to push forward on the case, although they will no longer be seeking an injunction—at least so long as the government stays open.

The Trump administration has argued that it has properly followed multiple Justice Department legal opinions on what functions can continue during a lapse in appropriations, and that constitutional arguments do not pass muster because even though employees are not promptly paid during a shutdown, the government still accrues—and later honors—a legal obligation to pay excepted workers.

NTEU National President Tony Reardon said the end of the shutdown does not render the union’s aims to ensure employees are paid for their work in a timely manner moot.

“Although we withdrew our motion for a preliminary injunction because the government was reopened, we still have the right to renew it if there is another shutdown in three weeks,” Reardon said. “Regardless of whether there is another shutdown, however, our core argument has not changed: The executive branch cannot spend money that has not been appropriated by Congress, which is what happens when agencies require certain employees to work during a shutdown.

Doug Church, a spokesman for NATCA, said that his organization is also worried that agencies could find themselves unfunded by Feb. 16.

“The FAA has notified NATCA that it intends to pay our members this week for the work they performed during the shutdown for which they have not been paid,” Church said. “Because of this affirmative remedy, NATCA need not seek the judge to enjoin the FAA and require immediate payment of our members’ wages. That said, we will continue to pursue our case and remain concerned that the current funding bill only runs through Feb. 15.”

The law firm representing the five federal employees did not respond to a request for comment.