Judge sympathetic to federal workers suing over shutdown

(AP photo via Courthouse News)

WASHINGTON (CN) – The federal judge overseeing a trio of lawsuits over the recent government shutdown expressed skepticism Thursday about some of the government’s arguments in the case, saying agencies have an uphill climb in court.

U.S. District Judge Richard Leon made the comments during a status conference for a group of lawsuits filed against the government by federal employees and labor unions over the month-long government shutdown that ended last week.

Leon’s main goal during the hearing was to set a schedule for the case in the event that the government shuts down again on Feb. 15, but at the outset he also commented on portions of the arguments raised in briefs filed in the case.

Leon’s main point of skepticism was related to the IRS’ decision to call thousands of employees back to work to process tax returns during the shutdown. While he said he was not prejudging the issue, he had “very serious concerns” about whether the decision to recall the employees fell within the scope of a federal law that governs how agencies can run during shutdowns.

Paras Shah, who represents the National Treasury Employees Union, explained to reporters after the hearing that it appears Leon is at least somewhat sympathetic to his client’s claims that recalling the employees does not fall into a “very, very narrow exception” that comes from a memo interpreting that law.

“We’re of course happy to hear that,” Shah told reporters.

Leon also expressed sympathy towards the employees’ challenge to a government policy that prevents people who are furloughed or working without pay from looking for side work during a shutdown. He said he would need to see a more developed record on the claim, but that an injunction on that point seems to make “a lot of sense.”

The spate of lawsuits against the federal government over the shutdown began to trickle in at the beginning of this month when federal employees started missing paychecks as a result of the lapse in funding. Hundreds of thousands of employees were deemed “excepted” and were forced to work without pay during that time.

The government reopened last week after the White House and congressional leaders agreed to a short-term spending package to fund the government until Feb. 15 while lawmakers try to reach a deal on funding for President Donald Trump’s proposed border wall.

The specter of another shutdown hung over Thursday’s hearing, as Leon noted Congress still appears unwilling to give Trump money for the wall. Speaker of the House Nancy Pelosi, D-Calif., reiterated her position that there will not be money for a wall in the final agreement at a press conference Thursday, while Trump told reporters at the White House that without wall funding, a deal is “not going to work.”

Leon said in the event the government shuts down again in two weeks, the parties will have just a week to file their motions before another hearing on Feb. 22.

“It’s very expedited, but I think it’s warranted under these circumstances,” Leon said.

If there is no second shutdown, the judge said the parties will hold another status conference to determine the future of the case.

Speaking with reporters after the hearing, Shah said he believes the litigation over the legal issues raised in the case will continue even if the government remains open past Feb. 15.