A federal district court judge has rejected a request by multiple plaintiffs to issue a Temporary Restraining Order (TRO) to require the federal government to reopen agencies that are subject to the ongoing shutdown and to require the government to pay those employees who have been required to work during the shutdown without pay.
The plaintiffs make several arguments, including that it violates the Anti-Deficiency Act to require employees to work during the shutdown and therefore obligate the government to pay them in the future with funds it does not have; that the government has over-defined who must work during the shutdown to include people who are not involved in duties that if not performed would harm personal safety or property; that constitutional rights have been violated by forcing government employees into involuntary servitude; and that agencies should be ordered to pay employees who are forced to work during the shutdown.
In NTEU v United States of America (U.S.D.C.D.C. Civil Case No. 19-51 (RJL), 1/18/19, Judge Leon denied the application for a TRO. In doing so, he indicated “it would be profoundly irresponsible under these circumstances….for me to grant that TRO. At best, it would create chaos and confusion—at worst, catastrophe!” (Opinion p. 3)
Judge Leon made clear that he “emphathize[s] with the plaintiffs’ positions.” (p. 1) He goes on to point out that the plaintiffs are not at fault and he has “no doubt whatsoever that there is real hardship being felt by innocent federal employees across the country right now.” (p. 1) In fact, as he notes, the judicial branch is facing some of the same issues.
Here’s the crux of his concern: “But I want and need to make something very clear: the Judiciary is not just another source of leverage to be tapped in the ongoing internal squabble between the political branches. We are an independent, co-equal branch of government, and whether or not we can afford to keep our lights on, our oath is to the Constitution and the faithful application of the law. In the final analysis, the shutdown is a political problem. It does NOT, and can NOT, change this Court’s limited role. Of that I am very certain.” (p. 2)
While he denies the requests for a TRO, the judge has ordered up an expedited court schedule for the plaintiffs to brief their pending motions seeking a preliminary injunction, setting oral argument for Thursday, January 31st.
In other words, while the plaintiffs have failed with the judge in their quest for a temporary restraining order, the cause still has life since the judge will now hear their request for a preliminary injunction. It remains to be seen if the plaintiffs can pull victory from the jaws of defeat by convincing this judge that a TRO may not be appropriate but a preliminary injunction nevertheless would be.