Echoes of 2013 government shutdown still reverberate

The Supreme Court recently ruled unanimously, that a Defense Department employee could challenge a six-day furlough that took place in 2013, during a lapse in appropriations. In doing so, the court brushed away a 60-day filing deadline imposed by the Merit Systems Protection Board. It’s more complicated than that, though. For an explanation, the Federal Drive with Tom Temin was joined by federal employment attorney Heidi Burakiewicz.

Interview Transcript: 

Tom Temin The Supreme Court ruled recently and unanimously that a Defense Department employee could challenge a six-day furlough, a furlough that took place in 2013 during a lapse in appropriations. In doing so, the court brushed away a 60-day filing deadline imposed by the Merit Systems Protection Board. It’s more complicated than that, though. Joining me in studio to explain it, federal employment attorney Heidi Burakiewicz. Heidi, good to have you in.

Heidi Burakiewicz Thank you. It’s wonderful to be here.

Tom Temin And because the Supreme Court heard this case, one is inclined to think, oh my God, this is a big fundamental issue. Not necessarily, though, huh?

Heidi Burakiewicz Yes. I think the Supreme Court’s decision, it was a unanimous decision. It’s more of a procedural, technical issue about whether the 60-day deadline for the employee to appeal the MSPB decision to the Federal Circuit is jurisdictional, meaning that it can find what the Federal Circuit can hear, or if it’s merely a deadline that’s set to ensure the orderly running of the courts in litigation that can be extended for various reasons, such as equitable reasons.

Tom Temin So this person applied to the MSPB to challenge the furlough, but he did so after 60 days, and there was a reason that it took him so long.

Heidi Burakiewicz Yes. So the employee timely challenged his six-day furlough back in 2013 when it took place.

Tom Temin Challenged it to?

Heidi Burakiewicz The MSPB. The administrative judge who heard the case ruled against the employee, and the employee timely appealed that decision to the full board of the MSPB.

Tom Temin Which did not exist at that point, right?

Heidi Burakiewicz Correct. There was a lack of quorum starting at the beginning, I think Inauguration Day in 2017, and lasted until 2022. There was a significant backlog of cases because the board could not make any rulings. Well over 3,700 cases backlogged, including this employee, was included in there. Tremendously, under Chair Kathy Harris’s leadership, the quorum was restored, has significantly reduced that backlog.

Tom Temin Yeah, they’ve been doing hundreds a month.

Heidi Burakiewicz Yes, I think they’re down to, the latest statistics on the MSPB website is that they’re down to 1,073 cases. Unfortunately, this employee’s case was held up in the backlog and during the years that it sat there, his email address changed. So when the board finally issued the decision, the employee did not get notice of it. He had 60 days to appeal directly from the full board to the Federal Circuit Court of Appeals, and he missed that deadline because he didn’t find out the decision had been issued until the 60 days had elapsed. The Federal Circuit then said that this was a jurisdictional requirement, and they did not have authority to hear his case. He appealed to the Supreme Court. The Supreme Court took the case and determined that this was not a jurisdictional requirement.

Tom Temin Got it. And so, therefore, the appeal will then move forward.

Heidi Burakiewicz Yes. So the Supreme Court remanded the case back to the Federal Circuit, and the Federal Circuit will have to decide. They have not yet ruled about whether he has a valid excuse for missing the 60 days. That’s the first thing that they’ll have to determine. And then they can determine the merits of his appeal.

Tom Temin Got it. All right, so then this is a kind of a narrow type of case, but it seems like for anyone that is going to be caught up in deadlines for appealing, there is a possibility that they would have a legitimate reason for missing a deadline, but it’s still probably a good idea to try to make the deadline.

Heidi Burakiewicz Yes, under all circumstances, the best thing to do is to meet deadlines. However, in situations like this, the employee missed the deadline through no fault of his own because his email address that he used changed. It was sort of an unprecedented delay at the board in hearing his appeal. And so certainly any employee who does miss a deadline for reasons like that, there is a path forward to have an appeal heard for equitable reasons.

Tom Temin We’re speaking with Heidi Burakiewicz, a federal employment attorney and partner at Burakiewicz and DePriest. I guess maybe the bigger picture is the fact that the monumental furlough over which you had filed class action suits still resonates, even though I think the class action suit failed because court ruling simply said, review for us what happened.

Heidi Burakiewicz Sure. Absolutely. So in 2013, we challenged, this is a little bit different. The employee in the herald case challenged his furlough pursuant to sequestration. Our case, our collective action that we filed in the Court of Federal Claims challenged whether the employees who were deemed essential during the government shutdown that began on October 1, 2013, could be forced to go to work and not paid on their regularly scheduled payday. We prevailed at the trial court. The judge determined that it was a violation of the FLSA. The Anti Deficiency Act did not trump the government statutory obligation under the FLSA to pay employees timely on their regularly scheduled payday. Unfortunately, when the government appealed the case to the Federal Circuit, we had a 2 to 1 decision, very close ruling against us that the government was not liable because of the Anti Deficiency Act.

Tom Temin Right, for the liquidated damages that you were seeking because the people had been paid their wages, but you were seeking liquidated damages because of the lateness?

Heidi Burakiewicz Correct. When it’s a violation of the FLSA to not pay an employee on their regularly scheduled pay date, and the remedy for that under the statute is liquidated damages. So, the amount of the back pay times two. So, you’re correct. The employees had received their backpay, but they were still owed liquidated damages. Unfortunately, the Court of Appeals determined that the government did not violate the Fair Labor Standards Act in this unique circumstance because of the Anti Deficiency Act, and we appealed to the Supreme Court. It is remarkably difficult to get the Supreme Court to take a case. I think they take less than 2% of the cases that come to them. We had an excellent law professor who was working with us, a Supreme Court expert on the briefs. SCOTUSblog said we were a case to watch and we were very optimistic, but unfortunately they did not take the case.

Tom Temin So, that’s where it ends, then?

Heidi Burakiewicz Correct. With a very narrow exception, there are some plaintiffs who still did not get paid on time, although they worked at agencies or components that did have funding. So, for example, in 2013, the Department of Defense employees shortly, sort of at the last minute before the shutdown started, Congress passed that paramilitary act in which military personnel and the civilians that support them had funding for a variety of reasons. However, the Department of Defense did not pay those civilian employees on time. So that is an example of the one issue that remains at the court, employees who worked for agencies or components that did have funding and still did not get paid on time, because of course, the Anti Deficiency Act is not a defense.

Tom Temin All right. And well, while we have you, any other big issues pending in the employment scene for federal employees that you’re watching?

Heidi Burakiewicz Yes. I mean, I think sort of talking about the shutdown or sequestration in 2013, I mean, it’s sort of heartbreaking to see the plight of federal employees. You know, we have a big election coming up in November. And certainly I think that the federal workforce should be concerned about who’s looking out for them. You know, I do a lot of work for the union that represents the employees at the Federal Bureau of Prisons. They are critically understaffed, and I’m constantly afraid that someone is going to be seriously injured or murdered. It’s an issue that affects not only the staff, but the inmate safety as well. And it’s really necessary that agencies and components like this are getting the funding that they need so that they can operate safely. So that’s something obviously, that I think, you know, all federal employees should be cognizant of. It’s an election issue in November.

Tom Temin And then there’s the schedule F question, because former President Trump is one of the people on the ballot. And so presumably without a statutory bar on it, which is cooking but doesn’t have that great a chance, this Congress, that could be reinstated, schedule F, which treats certain numbers of federal employees that are career more as if they’re political.

Heidi Burakiewicz Yes, that’s another issue that federal employees should be concerned about. And unfortunately, there’s a whole, whole host of issues. The fact that the MSPB under the Trump administration had no quorum and that there was this backlog of cases so that employees could not challenge the fact that they were being retaliated against when they were whistleblowers or that they suffered improper personnel actions. That’s the legacy of the Trump administration, which, as I mentioned before, under Kathy Harris’s leadership at the MSPB, they’re trying to rectify. But we certainly don’t want to be in that position again after November.

Tom Temin So, sounds like you haven’t given up the good fight at all yet.

Heidi Burakiewicz Absolutely not, absolutely not. And I’m also delighted I’m celebrating the first anniversary of my new law firm, Burakiewicz and DePriest. We’ve had a great first year, and we’ve collected well over $15 million on behalf of federal workers. We’ve had some tremendous successes. A case that I, you were asking sort of what are the issues that we’re, so we’re advocating for, I’ve had a lot of sexual harassment and rape cases, disability discrimination. We have a lot of pending class actions going on. One case that I feel really strongly about, I represented a woman who was raped at work.

Tom Temin Yeah, that goes sexual harassment to the extreme.

Heidi Burakiewicz Absolutely. And it was one of the most, Hollywood could not make up the story about what happened to this woman. It took us 11 and a half years, but we prevailed on her behalf. And the judge awarded her the full $300,000 available to employees under title seven of the Civil Rights Act of 1964. So we’re delighted legislation was just introduced a few weeks ago to lift that statutory cap on damages, because $300,000, it’s been in place since the 1990s, it hasn’t moved for inflation or any other reason. She’s the perfect example of $300,000, you know, against the federal government. It’s not enough to get their attention so that they are motivated to eradicate discrimination and harassment, but it’s also not enough to make employees whole. So we’re really delighted to continue to do work like that, not only advocating on behalf of our clients, but also.

Tom Temin Just a follow up on that, though. What happened was you filed civil case, but what happened was a violent crime. And did the perpetrator pay the criminal penalty for what, presuming it’s a man, did?

Heidi Burakiewicz Unfortunately not. Which is part of the reason that, you know, perhaps a longer story than we have time for today. But there was egregious retaliation and mishandling of the situation after it occurred.

Tom Temin Wow. All right. Well, never, never a shortage of issues, then?

Heidi Burakiewicz No. And I can’t emphasize how important the federal workforce is to us as a country. I think people often overlook them. And so we’re happy to continue to advocate on their behalf and hope that positive things are happening for them in the future.

Tom Temin Heidi Burakiewicz is a federal employment attorney and a partner at her own firm, Burakiewicz and DePriest. As always, good to have you on.

Heidi Burakiewicz Thank you so much for having me.

Tom Temin And we’ll post this interview with federalnewsnetwork.com/federaldrive. Subscribe to the Federal Drive wherever you get your podcasts.

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