Maybe Congress likes paying you liquidated damages?

The Anti Deficiency Act has become more of a legal fig leaf than any real coverage for the government to avoid paying people during a shutdown. 

It could happen again. Yessiree, another government shutdown, or whatever actually happens during periodic lapses in appropriations. With any luck, a shutdown could spark a fresh class action lawsuit against the government. The government is already facing two such suits. They seek — and they’re gonna get — liquidated damages for people who had to work, but had their pay delayed until Congress came through with an appropriations bill the President would sign.

Just this week government lawyers failed in their attempt to have the suit connected to the 35-day, 2018-2019 shutdown dismissed. Justice Department attorneys argued the Antideficiency Act prevented the government from making payroll. But the judge ruled that the violation of the Fair Labor Standards Act had higher precedence.

Meantime, the government is winding up its obligation to employees from the 2013 shutdown, but it’s not quite finished calculating what everyone is due. So, unless something happens fast, the government could find itself dealing with three similar suits all at once. It reminds me of the book a friend’s son wrote — to critical praise — about taking up cage fighting. The book starts with a recitation of the first, second and third time one is hit in the face. He reports, you eventually get used to it.

Well, maybe. But wouldn’t it be better for normal budgeting to come back into vogue in Congress? And for the government to avoid being hooked into these lawsuits?

Heidi Burakiewicz of Kalajarvi, Chuzi, Newman and Fitch and the leading plaintiffs’ attorney in these class action suits, says that the minimum liquidated damages due affected employees from 2018-2019 is $1,160. She’s already got 32,000 people in the suit. She said the government itself calculates some 160,000 might be eligible. That’s a total north of $185 million. As for the 2013 suit, which the government lost, those nearly 22,000 plaintiffs are going to get tens of millions.

Seven years seems like a long time to wait, but Buraciewicz says she’s confident the determination of precisely who is eligible and how much they are owed won’t take so long this time. The government is learning from experience. If the next shutdown seems imminent, maybe the agencies’ leadership could just pay the liquidated damages in advance, and save everyone a lot of tsuris.

Twice now the Justice Department — first under President Obama and now under President Trump — has cited the Antideficiency Act. If there’s s third time, it might be wise to try another legal tactic. What’s that old saying about insanity?

I feel the ADA, first enacted in 1884, needs a new amendment to allow the paying of excepted employees even when there is a lapse in appropriations. Under a 2019 amendment, excepted employees get paid at the earliest date possible after the lapse in appropriation ends. As the great book says, you shall not hold your laborers’ wages until the next morning.

Judge Patricia Campbell-Smith, in her latest rejection of the government’s motion to dismiss, goes into great detail about the apparent conflict between ADA and FLSA. To boil it down, a case Campbell-Smith cited as precedent favors FLSA compliance — paying people their wages and overtime when it’s normally due. The ADA has become more of a legal fig leaf than any real coverage for the government.

A secondary conflict lies in the increasingly tattered idea of a government “shutdown.” Employees from 14 agencies are party to the latest lawsuit. It’s getting harder to find which parts of the government don’t stay open.

I don’t fault the Justice Department for trying. It’s trying to protect taxpayers’ interest in avoiding the seemingly needless requirement to shell out for liquidated damages. Besides that, managers who authorize expenditures in contradiction of the ADA face fines and jail time. Who wouldn’t balance that potential against letting some lawsuit play itself out on someone else’s time and dime?

Surprise, surprise, the fault really lies with Congress for its habitual inability to consider, debate and pass agency budgets on time. Therefore our members need to craft a legislative fix to this habitual occurrence.

Nearly Useless Factoid

By David Thornton

On October 13, 2010, Finland celebrated the first Day of Failure. The idea is to promote trying something new, even — especially — if it turns out badly. The day has since gone international. A website devoted to the day offers 10 ways to observe it. The first? “Fail. How? Just fail. You’ll find your own personal way to do it.” It’s probably better than option five: “Do a bankruptcy. Money isn’t everything, they say. Right?”



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