Nat'l Treasury Emps. Union v. United States
| Decision Date | 16 March 2020 |
| Docket Number | Civil Case No. 19-50 (RJL), Civil Case No. 19-51 (RJL) |
| Citation | 444 F.Supp.3d 108 |
| Parties | NATIONAL TREASURY EMPLOYEES UNION, Plaintiff, v. UNITED STATES of America, et al., Defendants. Janette Hardy, et al., Plaintiffs, v. Donald J. Trump, et al., Defendants. |
| Court | U.S. District Court — District of Columbia |
Cathy Ann Harris, Daniel Roy Clark, Michael J. Kator, Kator, Parks, Weiser & Harris, PLLC, Washington, DC, for Plaintiffs.
Daniel Stephen Garrett Schwei, U.S. Department of Justice, Washington, DC, for Defendants.
Federal employees Brandi and Justin Thornton ("individual plaintiffs") and National Treasury Employees Union ("NTEU"), a labor organization representing over one hundred thousand federal employees, allege that the United States, President Donald J. Trump, and several Executive Branch officials (collectively, "the Government") violated the United States Constitution and various federal statutes by compelling federal employees to work without pay during the 2018 lapse in funding for certain Executive Branch agencies ("government shutdown" or "shutdown"). See NTEU v. United States , 19-cv-50; Hardy v. Trump , 19-cv-51. Both the individual plaintiffs and NTEU (collectively, "plaintiffs") claim that the Anti-Deficiency Act, 31 U.S.C. § 1342 —which, subject to certain exceptions, prohibits government expenditures or obligations absent available appropriations—violates the Appropriations Clause of the United States Constitution by authorizing Executive Branch agencies to "obligate funds without limitation," see Hardy Am. Compl. ¶¶ 59–60 [19-cv-51 Dkt. # 7]; NTEU Am. Compl. ¶¶ 41–45 [19-cv-50 Dkt. # 13]; see also NTEU Opp. to Mot. to Dismiss ("NTEU Opp'n") at 2 [19-cv-50 Dkt. # 27]. Plaintiffs further contend that even if the Anti-Deficiency Act is constitutional, the Government violated it by requiring them to work during the shutdown. Hardy Am. Compl. ¶¶ 71–74, 80, 86; NTEU Am. Compl. ¶¶ 46–50. The individual plaintiffs also assert that the Government's actions violated the Fifth and Thirteenth Amendments to the United States Constitution. Hardy Am. Compl. ¶¶ 39–56.1 For its part, NTEU separately claims that the Government's conduct constituted unlawful agency action in violation of the Administrative Procedures Act ("APA"). NTEU Am. Compl. ¶¶ 49, 54.
Shortly after filing suit, plaintiffs moved for temporary restraining orders and preliminary injunctive relief, seeking to prohibit the Government from requiring them to report to work during the shutdown.
NTEU Mot. for Temp. Restraining Order [19-cv-50 Dkt. # 8]; Hardy Mot. for Temp. Restraining Order [19-cv-51 Dkt. # 8]. After a hearing, I denied plaintiffs' request for a temporary restraining order, but deferred ruling on their motions for a preliminary injunction. See 1/15/19 Minute Order. Before briefing on those motions was complete, the shutdown ended, seemingly mooting plaintiffs' claims.2 Plaintiffs maintain, however, that their claims should not be dismissed because another shutdown could occur in the future, causing them the same harm. Pending before me is the Government's combined motion to dismiss plaintiffs' amended complaints for lack of jurisdiction. See Defendants' Combined Mot. to Dismiss ("Gov't Mot.") [19-cv-50 Dkt. # 26; 19-cv-51 Dkt. # 26]. Upon consideration of the briefing, oral argument, the relevant law, the entire record, and for the reasons stated below, the Government's motion to dismiss is GRANTED .
The Appropriations Clause of the United States Constitution provides that "No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law." U.S. Const., art. I, § 9, cl. 7. The meaning of the clause is straightforward: Congress has exclusive power over the federal purse, and no money can be disbursed from the Treasury absent an appropriation by Congress. OPM v. Richmond , 496 U.S. 414, 424, 110 S.Ct. 2465, 110 L.Ed.2d 387 (1990). Congress's exclusive authority in this area is reaffirmed by federal statute. For instance, the Anti-Deficiency Act prohibits federal officers and employees from authorizing expenditures in excess of the amount of appropriations made available by Congress, and it further prevents them from entering into contracts "for the payment of money before an appropriation is made unless authorized by law." 31 U.S.C. § 1341(a)(1)(A)–(B) (emphasis added). The Act contains an exception to this general prohibition under which the Government may "accept voluntary services ... or employ personal services exceeding that authorized by law" only in "emergencies involving the safety of human life or the protection of property." Id. § 1342. But, as the statutory language makes clear, the emergency exception is narrow; it does not cover the "ongoing, regular functions of government the suspension of which would not imminently threaten the safety of human life or the protection of property." Id.
In accordance with the Appropriations Clause and the Anti-Deficiency Act, federal agencies must cease their activities if Congress does not appropriate funding, unless those activities qualify as an exception to the Anti-Deficiency Act. The Department of Justice ("DOJ") provides its own guidance as to what types of activities qualify as exceptions. See Gov't Operations in the Event of a Lapse in Appropriations, 1995 OLC Op., 1995 WL 17216091 ; see also Auth. for the Continuance of Gov't Functions During a Temp. Lapse in Appropriations , 1981 OLC Op., 1981 WL 30865. In its view, two criteria must be satisfied with respect to the "emergency" exception created by the Act: "First, there must be some reasonable and articulable connection between the function to be performed and the safety of human life or the protection of property;" and "[s]econd, there must be some reasonable likelihood that the safety of human life or the protection of property would be compromised, in some [significant] degree, by delay in the performance of the function in question." Id. at *6.3 Apart from the "emergency" exception, DOJ also considers certain activities as exceptions if they are related to other government functions that Congress did decide to fund; in those circumstances, funding for unfunded activities is, in DOJ's view, "necessarily implied" by funding for the related functions. 1995 WL 17216091 at *3. Relying on DOJ's guidance, the Office of Management and Budget ("OMB") directs agencies to prepare "contingency plans" that designate which activities and employees are to be excepted in the event of a government shutdown. See NTEU Am. Compl. ¶ 14; see also id. ¶¶ 15, 20.
On December 22, 2018, funding for several Executive Branch agencies lapsed, triggering a partial government shutdown. NTEU Am. Compl. ¶ 8; Hardy Am. Compl. ¶ 26. Affected agencies accordingly ceased performing certain activities but, pursuant to their contingency plans, deemed thousands of federal employees "excepted" under the Anti-Deficiency Act, including thousands of NTEU members and the individual plaintiffs. See NTEU Am. Compl. ¶¶ 9, 20, 21; Hardy Am. Compl. ¶¶ 27, 28, 33. Those employees were required to work without pay while the lapse in funding continued. NTEU Am. Compl. ¶¶ 9, 22; Hardy Am. Compl. ¶ 29.
Three weeks after the partial shutdown began, plaintiffs each filed suit challenging the Government's decision to require them to report to work. See generally NTEU Compl. [19-cv-50 Dkt. # 1]; Hardy Compl. [19-cv-51 Dkt. # 1].4 They also filed motions for temporary restraining orders ("TROs") and preliminary injunctive relief. See NTEU Mot. for Temp. Restraining Order; Hardy Mot. for Temp. Restraining Order. I held a hearing on those motions on January 15, 2019. Emphasizing that the shutdown was a budgetary dispute that should be solved by the political branches, I orally denied plaintiffs' requests for temporary restraining orders, and I subsequently issued a written order memorializing my reasoning. See 1/15/19 Order at 1 [19-cv-50 Dkt. # 16; 19-cv-51 Dkt. # 19].5 I deferred ruling on plaintiffs' requests for preliminary injunctive relief until the parties completed briefing on those motions. Id.
On the same day as the TRO hearing, the Internal Revenue Service ("IRS") issued an updated contingency plan, recalling thousands of previously-furloughed IRS employees for the purpose of processing federal tax refunds. See NTEU Am. Compl. ¶¶ 24, 29. President Trump had previously announced that the shutdown would not delay the issuance of federal tax refunds, and the IRS announced its intention to require 46,052 employees to work during the shutdown, a significant increase from the 9,946 employees excepted under its original contingency plan. See id. ¶¶ 25, 27, 28. According to the IRS, those additional employees were now designated "excepted" under both the Anti-Deficiency Act's emergency exception and the "necessarily implied by law" exception. See id. ¶¶ 24, 28, 29, 31. Shortly after the TRO hearing, NTEU amended its complaint, adding allegations regarding the updated IRS contingency plan. See id.
On January 25, 2019, before the parties' briefing was complete on plaintiffs' motions for preliminary injunctive relief, the Government temporarily restored funding for three weeks, and plaintiffs withdrew their motions. NTEU Notice of Withdrawal [19-cv-50 Dkt. # 20]; Hardy Notice of Withdrawal [19-cv-51 Dkt. #22]. I held a status conference on January 31, 2019 and, to prevent delays should another shutdown occur when Congress's temporary funding lapsed, set a briefing schedule for any subsequent preliminary injunction motions. See 1/31/19 Minute Order. On February 15, 2019, however, Congress enacted appropriations for the remainder of the fiscal year. See Consolidated Appropriations Act, 2019, Pub. L. No 116-6, 133 Stat. 13. I held another status conference on February 22, 2019. At that hearing, the Government asserted that the appropriations...
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