UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

NATIONAL 'TREASURY
EMPLOYEES UNION,

Plaintiff,

v¢

UNITED STATES OF AMERICA, el al.,

Defendants.

JANETTE HARDY, et al.,
Plaintiffs,
v.
DONALD J. TRUMP, et al.,

Defendants.

NATIONAL AIR TRAFFIC

CONTROLLERS ASSOCIATION,

AFL-CI() (“NATCA”), et al.,
Plaintiffs,

V.

UNITED STATES OF AMERICA, et al.,

Defendants.

`/\/v\/\-/\/V\/V\./

\/\/\/\/\./\/\/V\/\/

\./\_/VVVV\/`/\/\/V

Civil Case No. 19-50 (RJL)

FILED
JANM: m

C!erk, U,S. Distréci 81 Bankruptcy'
.Cizur'zs fm fha D§§t_r§ct cf Cofumb§a

Civil Case No. 19-51 (RJL)

Civil ease No. 19-62 (RJL)

MEMORAND[‘; ici ORDER

(January ¢éL, 2019)

Having heard the parties’ arguments on the pending temporary restraining orders
(“TROs”), l am now in a position to rule on that particular form of extraordinary relief. As
l explained in my order over the weekend, l will defer ruling on their preliminary injunction
requests until the parties have had a chance to fully brief and argue the varied and novel
issues these cases present.

Let me note something, however, at the outset: l empathize with the plaintiffs’
positions They are not the ones at fault here. lndeed, the Judiciary is dealing with the
same realities that the Executive Branch agencies are facing. I have no doubt whatsoever
that there is real hardship being felt by innocent federal employees across the country right
now. lndeed, several plaintiffs have filed declarations to that effect, and the Government
rightfully acknowledged as much in their motion to postpone this hearing.

But l 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 golitical problem. lt does _l\_l__Q'_l`_, and
can _N_QI, change this Court’s limited role. Of that I am very certain.

Now, as counsel have discussed, these cases raise a number of statutory and
constitutional claims. Plaintiffs claim, for example, that the Executive Branch’s

determination of which federal employees are “excepted” from the shutdown_meaning

they must continue to work without compensation or else risk adverse consequences_
violates the Anti-Deflciency Act, 3l U.S.C. § 1341, because the Executive is taking on
future obligations to pay excepted employees without an existing appropriation from
Congress.

Plaintiffs make a related claim-and this really seems to be the crux of these
lawsuits-that the Executive has adopted an overbroad interpretation of § 1342 of the Anti-
Deficiency Act, which effectively allows the Executive to require employees to work
without pay in “emergencies involving the safety of human life or the protection of
property.” Plaintiffs argue that they do not fit into the emergency exception because their
employment relates to "‘ongoing, regular functions of government” that, if suspended,
would not “imminently threaten” human life or property, as stated in the statute.

On the statutory side, the Hardy and NA TCA plaintiffs also raise minimum wage
and overtime claims under the Fair Labor Standard_s Act. And on the constitutional side,
the Hardy and NA TCA plaintiffs claim (l) that the Executive’s interpretation of the Anti~
Def1ciency Act violates Article l’s Appropriations Clause; (2) that their S‘h Amendment
Due Process rights have been violated; and (3) that they have been forced into involuntary
servitude in violation of the 13th Amendment.

The NATCA member plaintiffs seek a TRO requiring the relevant Executive
agencies to pay them money to which they are entitled but that the agencies do not have
right now. The NTEU and Hara’y plaintiffs want me to issue a TRO effectively canceling
the Executive Branch’s determinations that certain federal employees are excepted and

must continue to work without pay.

Turning to the standard for the extraordinary injunctive relief sought here, a TRO is
reserved for cases where plaintiffs will suffer irreparable injury before a preliminary
injunction hearing is even held. lt is an extraordinary, if not drastic, remedy. l do not need
to repeat the well-known four-factor test for a TRO or preliminary injunction, but l think
it is fair to say that each of the foregoing categories'of claims have varying likelihoods of
success on the merits, and that l would benefit from full, adversarial briefing on those
issues l think it is also fair to say-putting aside whether the injuries alleged are
irreparable_that at least some of the plaintiffs here are alleging real harm, financial and
otherwise. As l said, I have read their declarations

But a TRO is designed to freeze the state of affairs, not throw the status quo into
disarray. The TROs sought here would do the latter. Moreover, the emergency relief
standard is a sliding scale, and one of the factors l have to weigh is whether granting the
relief sought is in the public interest. NATCA would effectively have me order the F ederal
Aviation Administration to pay NATCA’s members’ unpaid salaries with money that the
FAA does not have right now. As plaintiffs well know, Congress has the power of the
purse, not me. l cannot grant injunctive relief in that form.

The Ham’y and NT E U plaintiffs would have me, in effect, give all currently excepted
federal employees_numbering in the hundreds of thousands across dozens of agencies_
the option not to show up for work tomorrow. These are employees who perform functions
that the relevant agencies have determined bear on the safety of human life and/or the

protection of property. If l were to issue a TRO, there is no way to know how many of

these excepted employees would choose not to report to work tomorrow, and there is no
way to know what public services would therefore go unprovided.

It would be profoundly irresponsible under these circumstances-with no record
whatsoever telling me what government functions would be impacted_-for me to grant that
TRO. At best, it would create chaos and confusion_at worst, catastrophe ! l appreciate
plaintiffs’ position that the public has an interest in adherence to the Constitution’s
structural separation of powers, but l am not going to put people’s lives at risk with a
somewhat knee-j erk, blanket TRO.

With all that said, l will deny the TROs and set an expedited briefing schedule for
the pending preliminary injunction motions The Government will file its responses to the
motions no later than Tuesday, January 22, 2019. The plaintiffs will then file their replies
by Monday, January 28. And l will hear oral argument on the preliminary injunction
motions on Thursday, January 31 at 3:0() PM.

A word to the wise: There is substantial overlap in the legal claims in these cases,
particularly with respect to the Anti-Deficiency Act. I do not intend to hear the same
arguments three times So, the plaintiffs will need to negotiate amongst themselves to
determine who will be taking the lead for arguing the different claims

Accordingly, it is hereby

ORDERED that the plaintiffs’ TROs in the three above-captioned cases are

DENIED; and it is further

ORDERED that defendants shall file their responses to the pending preliminary
injunction motions no later than Tuesday, January 22, 2019; the plaintiffs shall file their
replies no later than Monday, January 28, 2019, and a hearing on the preliminary injunction
motions shall be set for Thursday, January 31, 2019 at 3:00 PM in Courtroom 18.

SO ORDERED.

    

RlCHARD J.
United States Dlstrict Judge

