But Paras N. Shah, representing the National Treasury Employees Union, said that “we’re staring down the barrel” of a funding lapse affecting all agencies and that even if one doesn’t occur after the Dec. 20 deadline “it’s reasonable to expect” that there will be another in the future and that at least some employees will again be compelled to work without pay.
The case was brought during the month-long partial shutdown that started last Dec. 22 when spending authority lapsed for nine Cabinet departments and numerous smaller agencies. They collectively employ about 800,000 federal employees out of a total workforce of 2.1 million.
About half of the 800,000 initially were sent home on unpaid furloughs while the rest remained at work without pay. But as the shutdown dragged on, agencies called tens of thousands of furloughed employees back to the job, although still unpaid. All eventually received back pay regardless of their working status.
Currently, no federal agencies have regular appropriations in place for the fiscal year that started in October, threatening the type of government-wide shutdown that last occurred over two weeks in 2013.
President Trump signed a bill Nov. 21 that extends government funding through Dec. 20, setting up a fight over money for his border wall that could happen around the same time the House is voting on articles of impeachment against the president.
The suit argues that by keeping employees at work and creating an obligation to pay them, agencies violate the Anti-Deficiency Act. In general, that law bars agencies from making an obligation to spend money unless Congress has appropriated it. The government relies on an exception in that law allowing it to continue functions that protect safety or property. Individual agencies decide which positions fall under that exception under guidance from the Office of Management and Budget.
The suit contends that the exception violates Congress’s control over spending under the Constitution and that even if it doesn’t, OMB and agencies have interpreted it too broadly.
However, the hearing before Senior District Judge Richard J. Leon focused on whether the suit can continue since those policies currently are not in effect. Schwei said the case “became moot almost 11 months ago” and that a law allowing moot cases to continue if a situation is “capable of repetition yet evading review” does not apply.
“What if the court were to conclude that it’s happened so frequently that it might happen again, wouldn’t that be enough?” Leon asked.
Schwei said that it wouldn’t, because the same people would have to be affected in the same way, which would require “extensive speculation,” including that the same agencies would lose funding and that individuals would still be in the same positions and would be treated in the same way as before.
Shah, though, said that the law allowing cases to continue requires only a reasonable expectation that the same situation will recur. He said that since the NTEU represents employees in 33 federal agencies, “it’s reasonable to expect” that some of them would be kept at work in any future shutdown.
He also noted that the Government Accountability Office concluded that the IRS violated the Anti-Deficiency Act by calling thousands of employees who had been furloughed back to work in January for the tax filing season. There have been no repercussions from that finding and the agency’s current shutdown contingency plans anticipate doing the same, he said.
“If they’re able to get away with that, what’s the message to other agencies of the executive branch? . . . Agencies are going to feel no one is going to hold them accountable. And they may be right,” Shah said.
Leon in January had refused to issue an emergency order to bar agencies from requiring employees to work unpaid, saying that would “create chaos and confusion” while the shutdown was still going on. A later scheduled hearing was canceled because the shutdown had ended by then.
On Wednesday he gave no timetable for issuing a decision on whether the case can proceed but indicated that it would not be before the upcoming deadline, telling the two sides that “you’ll be lucky to get an opinion in January.”
NTEU President Tony Reardon said outside the courtroom that while the union would prefer a ruling before any potential new shutdown, “Ultimately, in our view, if the appropriations bills are not funded, people should not be going to work. It’s Congress who has the purse strings and they’re the ones who are in the position of deciding how to spend money, not the executive branch,” he said.