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That Time Three Wise Judges Ruled That Christmas Eve Was a Federal Holiday

Not every Christmas Eve, though.

The latest in an intermittent series looking back at groundbreaking, newsmaking, appalling and amusing events in government history.

It’s that time of year: The holiday decorations come out, children file their gift requests with Santa and federal employees wait in the hope of a little extra time off. Anticipating the possibility of an executive order granting a few bonus hours of leave on Christmas Eve—or maybe even the full day—has become a time-honored tradition. 

Of course, this is one of those years when it’s unlikely feds will get extra time off. Christmas falls on a Sunday, meaning that Christmas Eve is already a day of rest for employees who work a regular schedule. Monday, Dec. 26, is the official federal Christmas holiday. 

Generally, the extra holiday (or partial holiday) comes into play when Christmas falls on a Tuesday or Thursday. Then, presidents often issue executive orders declaring that federal offices are closed on Christmas Eve or the day after Christmas. But it’s not out of the question that an extra holiday would be granted when Christmas is on a different day. President Trump gave federal workers full days off when Christmas fell on a Wednesday and another time when it landed on a Friday.

The time-off tradition raises a question that it’s safe to say few federal employees have ever pondered: When the president makes such a gesture of generosity, is he declaring an official federal holiday or just  telling employees they can feel free to stay home and still collect their pay for the day? It may seem like a distinction without a difference, but it’s not merely academic. In fact, a federal court has been forced to rule on this very issue.

On Dec. 5, 2001, President George W. Bush issued an executive order giving federal employees a full day off on Christmas Eve. “All executive branch departments and agencies of the Federal Government shall be closed and their employees excused from duty on Monday, December 24, 2001, the day before Christmas Day,” the order stated.

Bush’s decree happened to come at a time when the Mashpee Wampanoag Tribal Council, representing 1,500 Native Americans on Cape Cod in Massachusetts, was mired in a years-long legal effort seeking official recognition by the Interior Department as a tribe. Such a designation would make the group eligible for a series of privileges, including exemption from state and local jurisdiction over their activities. 

Frustrated by the delays, the Mashpee council sued Interior. On Dec. 21, 2001, a district court judge ordered Interior’s Bureau of Indian Affairs to put Mashpee’s request on its list for active consideration, and for the Interior secretary to issue a decision within a year. Under provisions of a rule known as 6(a), Interior had 10 days to file a motion for reconsideration of that decision. Those 10 days did not include weekends, certain national holidays (including Christmas Day and New Year's Day), and “any other day appointed as a holiday by the President.”

Interior Department lawyers filed their motion on Jan. 9, 2002. By the timeliness provisions specified, that was 11 working days after the judge’s order. Too late, the Mashpee council argued.

But what about Bush’s order? Interior said it had created another federal holiday on the 2001 calendar. Therefore, the department’s lawyers argued, they met the deadline. 

The case landed before the federal Court of Appeals for the D.C. Circuit, where it was decided by judges Douglas Ginsburg, Harry Edwards and future Attorney General Merrick Garland.  “We three judges,” their opinion began. 

No, it did not. The legal wise men resisted the temptation to invoke Christmas carols or other references to the holiday in a laudable display of seriousness about the issue at hand. 

“We have not previously had occasion to consider whether a day has been ‘appointed as a holiday’ within the meaning of Rule 6(a), and the parties have been unable to cite any particularly helpful authority, albeit not for want of trying,” the judges wrote. It was true, they acknowledged, that a circuit court had suggested that the president must actually use the word “holiday” in an order to declare one. But that court went on to rule that the disputed motion at the heart of that case was timely because the courthouse was closed on the day in question. The same was true in the Mashpee/Interior dispute.

So with little legal precedent to guide them, Ginsburg, Edwards and Garland fell back on common sense. “When the President gives all employees in the Executive Branch a day off, we believe Rule 6(a) contemplates a break for federal litigators,” their opinion stated. “To penalize the Secretary (rather drastically, by dismissing her appeal) because the President did not use the word ‘holiday’ in the executive order would quite plainly run counter to the purpose of the Rule. We conclude that Christmas Eve, 2001 should be excluded in calculating the 10-day period within which the Secretary had to file her motion; hence, the motion was timely.”

Interior came out ahead in that legal skirmish. But the Mashpee Wampanoag were playing the long game. In 2007—three decades into their quest—the tribe finally won official federal recognition. In 2015, the United States designated more than 300 acres of land in Mashpee and Taunton, Massachusetts, as a reservation for the tribe’s members. 

Federal employees, meanwhile, can rest assured that when the president gives them a day off at Christmastime, it’s a holiday, whether he or she uses the word or not.