Judge Richard Leon of the U.S. District Court for the District of Columbia. Photo: Diego M. Radzinschi/NLJ

Updated at 3:10 p.m.

Hundreds of thousands of federal employees will be required to continue to work without pay during the government shutdown, a Washington federal judge ruled Tuesday, denying an emergency request that said the Trump administration was violating federal law by forcing employees into “involuntary servitude.”

U.S. District Judge Richard Leon, overseeing three lawsuits at a hearing in Washington, refused to issue a temporary restraining order, saying such a move potentially would have brought “chaos and confusion” and put lives at risk by shuttering government functions the executive branch has deemed essential.

Leon expressed some reluctance to enter into the political fray that has left the government unfunded since Dec. 22. More than 400,000 federal employees across agencies are still working, despite not being paid during the shutdown, now the longest in the nation's history.

“It's hard not to empathize with the plaintiffs. They are not at fault,” Leon said. He continued, “Yet, the judiciary is not another source of leverage to be tangled in this struggle.”

Two unions—the National Treasury Employees Union and the Air Traffic Controllers Association—and a group of five individual federal employees sued in Washington's federal trial court alleging that forced-work without pay is violating federal law. Attorneys for the employees presented arguments that say these employees forced to work face unpaid medical bills, cannot afford child care and have no funds for essential needs as long as the government forces them to work without paychecks.

Yet, Leon concluded that said it was not the role of the court to wade into the political stalemate. He said such emergency measures were reserved for irreparable injury in “extraordinary or drastic” cases. He said issuing a temporary restraining order “would be profoundly irresponsible.”

“It would at best be chaos and confusion, at worst it would be catastrophic consequences,” Leon said.

Lawyers for the challengers asked Leon to stop the government from requiring employees report without pay, allow the employees to not show up for work without employment consequence and permit the employees to look for other work during the lapse in government appropriations.

These “excepted” employees, who are required to work during government shutdowns without pay, argued the government is violating the Fair Labor Standards Act and also provisions of the U.S. Constitution that require due process.

Central to the dispute is the Antideficiency Act, the 1870 law that sets the parameters of what happens when agencies run out of federal funding. Generally, federal officials are prohibited from working during a shutdown save for instances that involve the safety of human life or the protection of property.

The suits tee up a constitutional challenge to the life-and-property exception, saying that it conflicts with the Constitution's appropriations clause, which gives Congress the sole power to appropriate funds.

Daniel Schwei, arguing for the Justice Department, said the public interest in not granting the restraining order outweighed the harm felt by federal employees. “It would be an untenable result with a significant impact on public interest,” Schwei said.

Prisons, law enforcement agencies and other essential functions of the federal government would be halted, Schwei said. Air traffic controllers who stayed at home, unpaid, would mean limit airline traffic.

Paras Shah, assistant counsel for the National Treasury Employees Union, urged Leon in court to grant a temporary restraining order for 72 hours to put pressure on Congress to open the government and pay the employees. He acknowledged such a move would alter the status quo.

“Should they do their duty, chaos could be avoided,” Shah told the judge.

Leon told Shah that the court must take into consideration the public harm that granting a request that would eliminate essential workers as an exception to government shutdowns. He said that it's not the role of judiciary to appropriate funds. He also stressed several times that President Donald Trump and Congress have said the employees who are working, and the furloughed employees will be made whole.

He also said the executive branch should make decisions about which federal employees are deemed “essential,” not the courts.

Michael Kator of Washington's Kator, Parks, Weiser & Harris, who represented individual plaintiffs at Tuesday's hearing, asked the court to give employees the option to work or stay home to find alternate work until the shutdown is lifted.

Michael J. Kator. Photo by Diego M. Radzinschi / NLJ

Kator said the government forced these workers into “involuntary servitude” in violation of the Constitution.

The Justice Department later disputed that workers were not able to work outside of the daily jobs, and could not cite a regulation that did not allow federal workers to take extra work, such as driving for Uber or Lyft.

Molly Elkin, who advocated for the National Air Traffic Controllers Association, said controllers play an essential role and are already understaffed. She cited instances when Leon granted housing assistance pay and veteran pay to citizens in other instances in emergency situations. Leon said those circumstances were different.

“A (temporary restraining order) would have incredible impact on the nation,” Leon said. “A chaotic impact.”

Leon set a hearing for a preliminary injunction for Jan. 31.

 

Read more:

Law Firms Face 'Uncharted Waters' as Shutdown Grinds Some Practices to a Halt

DC Circuit Judges Feud, and New Suits Pile Up, as Shutdown Persists

Read the Complaint: Air Traffic Controllers Union Sues Trump

Government Shutdown Leaves Law Student Externs Scrambling

Federal Judiciary Says 'Limited Funds' Will Expire Jan. 18