With judge’s recent decision, employees can pursue long fight for 2018 shutdown pay

The latest decision from a U.S. Court of Federal Claims judge means attorneys can begin what will likely be a lengthy pursuit of damages for excepted federal em...

A judge with the U.S. Court of Federal Claims has denied the government’s motion to dismiss a class action lawsuit from federal employees who worked without pay during the most recent partial government shutdown.

Patricia Campbell-Smith, the same judge who issued a favorable ruling to federal employee plaintiffs after the 2013 shutdown, offered her opinion Tuesday.

She declined to throw out the lawsuit from a group of federal employees who, because of the nature of their jobs, were required to continue working without pay for their agencies through the 35-day government shutdown that started in 2018 and dragged on well into January 2019.

Heidi Burakiewicz, a federal employment attorney with the law firm Kalijarvi, Chuzi, Newman & Fitch, had sued the government on behalf of the American Federation of Government Employees last January. She argued the Trump administration had violated the Federal Labor Standards Act when it failed to pay excepted federal employees working through the partial shutdown.

The legal proceedings aren’t over, but the latest opinion from Campbell-Smith means Burakiewicz and her team can continue to pursue damages for the plaintiffs and others involved in the class action lawsuit.

A total of 32,212 federal employees have opted into the lawsuit so far — 7,000 more people than had opted into the similar case from the 2013 government shutdown.

Burakiewicz said her law firm had fielded questions from interested federal workers right up until the judge’s Dec. 1 deadline to submit the consent forms necessary to join the class.

In issuing her opinion, Campbell-Smith drew on the same arguments she made three years ago in the class action lawsuit of excepted federal employees impacted by the 16-day government shutdown in 2013.

For the 2013 case, the judge said the government didn’t convince the court it had acted “in good faith and reasonable grounds” when it failed to pay its employees on time as the Fair Labor Standards Act (FLSA) requires. Campbell-Smith ultimately ordered the government to pay damages to the affected plaintiffs — equal to twice the pay for the 2013 shutdown period, plus any overtime.

In its motion to dismiss this most recent case, the government argued it couldn’t be held liable for failing to pay its excepted employees during the most recent lapse in appropriations, because the Antideficiency Act (ADA) prohibited it. At its core, the Antideficiency Act prohibits the government from spending money it doesn’t have.

The FLSA and the Antideficiency Act “impose two conflicting obligations” on federal agencies, the government argued.

As she did for the 2013 case, Martin v. United States, Campbell-Smith disagreed.

“Notwithstanding defendant’s disagreement, the court continues to believe that the framework it set out in Martin is appropriate and applies here,” Campbell-Smith wrote. “As it did in Martin, ‘the court will proceed to analyze this case under the construct of the FLSA, and evaluate the existence and operation of the ADA as part of determining whether defendant met the statutory requirements to avoid liability for liquidated damages.'”

The claims the plaintiffs brought to the court from the 2018-2019 government shutdown are similar to those from the 2013 shutdown case, Campbell-Smith said.

“The court finds that, presuming the facts as alleged in the complaint and drawing all reasonable inferences in their favor, plaintiffs have stated a claim for relief under the FLSA,” the judge said.

She gave the government until Jan. 29 to reply to the plaintiffs’ complaints and file a joint status report with Burakiewicz and her team, where they’ll determine whether the case can be consolidated with any others.

The National Treasury Employees Union filed a similar lawsuit during the aftermath of the 2018-2019 government shutdown. It also argued the government had violated the FLSA when it failed to pay employees who had worked during the most recent lapse in appropriations.

Roughly 20,000 federal employees represented by NTEU have joined the class action lawsuit, Tony Reardon, the union’s national president, said.

Campbell-Smith is also the presiding judge on the NTEU case but hasn’t yet issued an opinion on the government’s motion to dismiss this particular case.

“The four named plaintiffs are Customs and Border Protection officers but anyone who is FLSA nonexempt, in a bargaining unit where NTEU is the sole representative and who was required to work during the shutdown without being paid on time was eligible to opt into the case,” he said Wednesday in a statement to Federal News Network. “We are hopeful that the government’s motion to dismiss our case will be rejected so we can pursue damages and compensate employees for the delay in receiving the money they were rightfully owed under the law.”

Attorneys still calculating damages for 2013 shutdown lawsuit

If the legal proceedings for the 2013 shutdown are any indication, federal employees who joined these most recent class action lawsuits could be in for a long fight.

Campbell-Smith ordered the government back in 2017 to provide back pay and damages to the federal employees involved in the original 2013 class action lawsuit.

But attorneys and consultants are still determining exactly how much in liquidated damages federal employees are owed. That work has been ongoing for more than two years. Attorneys involved in the process have struggled, for example, to find payroll data for employees who have since left government but are still eligible for damages and determine who worked overtime during the 16-day government shutdown in 2013.

According to a Nov. 9 status update from attorneys, both parties are continuing to finalize the methodology and damages for nearly 22,000 eligible federal employees.

A judge is eventually expected to rule on the government’s motion to dismiss 2,140 plaintiffs who are unidentified or deemed ineligible for damages from the 2013 class-action lawsuit.

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