Trump Buoyed in Shutdown as Court Rebuffs Workers’ Pay Plea

(Bloomberg) -- Unpaid federal employees failed to win a temporary court order compelling the U.S. to compensate them for working during the government shutdown or let them take jobs elsewhere.

Tuesday’s ruling, by U.S. District Judge Richard Leon, came on the 25th day of the partial shutdown, the longest in U.S. history. Leon will consider requests for longer-term relief at a hearing on Jan. 31.

President Donald Trump’s standoff with Congress over his long-sought wall along the U.S.-Mexico border has blocked funding for part of the government, sidelining some 800,000 federal workers. The employees say being forced to work without pay violates the Constitution and federal law. Leon rejected arguments from federal employees’ unions and four individuals that they were entitled to immediate relief.

The ruling could embolden Trump to press ahead with the shutdown in hopes of getting funds for the wall. Yet the president remains under significant pressure to reach a spending deal with Democrats as worker resentment grows. At least 50 percent of respondents to half a dozen polls taken since the shutdown began blame Trump and his party for the impasse, while only a third or fewer blame Democrats, who have already approved resolutions to fund most of the part of the government that’s closed.

“It’s hard not to empathize with the plaintiffs here. They’re not the ones at fault,” Leon said Tuesday after hearing nearly an hour of arguments in a Washington courtroom. But letting federal employees opt out of work would be “irresponsible,” he said, because there’d be no telling how many workers would show up the next day.

“At best, it would create chaos,” the judge said, adding it could put lives at risk.

More than once during the hearing, he floated the idea of issuing an order that would let the unpaid workers take jobs elsewhere, perhaps at the Uber and Lyft ride share services, during their off hours.

Justice Department lawyer Daniel Schwei, who argued against the workers’ bid in court, echoed Leon.

“The relief they are seeing would cause chaos and disruption to the general public,” he said.

Employees are also seeking pay for the work they’ve done during the shutdown.

“We are disappointed with the outcome today,” said Paras Shah, assistant counsel of the National Treasury Employees Union, who argued for the union in the case. Shah said the NTEU was nonetheless “eager” for the Jan. 31 hearing and would “continue to fight to get our members the relief they deserve.”

The White House didn’t immediately respond to a request for comment after the hearing.

Besides the NTEU, which represents 150,000 employee across more than 30 government agencies, and the four individuals who filed separately, the National Air Traffic Controllers Association (Natca) sued as well.

Chaos was also the specter offered by the plaintiffs. Most, if not all, of the approximately 800,000 federal employees affected by the partial shutdown missed paychecks last week. Natca’s complaint calls its workers’ pay their property, protected by the Constitution, and warns of safety lapses.

“America wants its air traffic controllers to be laser-focused on landing planes safely and monitoring America’s runways, not distracted by financial issues ... caused by the government’s unlawful taking of their property without due process,” it says.

Arguing for the air traffic controllers in court, Molly Elkin warned Leon that her clients’ situation was becoming more tenuous, progressing from inability to pay for groceries to being unable “to pay for gas to get to the towers,” and asked him to “drop your legal hammer on the defendants.”

As for the Uber idea, Elkin told the judge it would be another source of stress for air traffic controllers already being made to work unpaid regular shifts plus overtime.

The Treasury workers claim the government’s failure to pay overtime and minimum wages violates the federal Fair Labor Standards Act.

Their lawsuit also deals with the federal Anti-Deficiency Act, a 19th-century law designed to keep the executive branch from creating financial obligations for Congress to fund. An exception was later carved out for situations involving the safety of human life and the protection of property, situations the union says aren’t currently in play. The union argues that a budget directive the administration issued just before last year’s brief shutdown impermissibly broadened the exception to sweep in “the ongoing, regular functions of government.”

Attorneys for Air Traffic Control Specialist Janette Hardy, one of the four individuals suing the U.S., were more blunt. They noted that the U.S. has required government employees to work without pay and threatened punishment if they failed to show up or sought gainful employment elsewhere, and called it the kind of involuntary servitude outlawed by the U.S. Constitution’s 13th Amendment.

Representing those employees, attorney Michael Kator asked Leon to leave the decision on going to work to the workers.

“Let them decide whether they’re essential,” Kator said.

The lead case is National Treasury Employees Union v. U.S., 19-cv-50, U.S. District Court, District of Columbia (Washington). Also pending in Washington federal court are National Air Traffic Controllers Association v. U.S., 19-cv-62, and Janette Hardy v. U.S., 19-cv-51.

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