The government shutdown closes offices, museums and other sites in Washington, D.C. File photo from 2013. Photo by Diego M. Radzinschi/NLJ

Clif Alexander’s law office in Corpus Christi, Texas, has been inundated with calls and emails in recent weeks, as the nation’s longest government shutdown drags on and hundreds of thousands of federal employees forced to work across the country cope with how to get by without pay.

The six-attorney firm Anderson Alexander is among the offices suing the federal government on behalf of workers seeking back pay and damages under federal wage laws. The cases, filed on behalf of employees across agencies, are piling up in the Washington-based U.S. Court of Federal Claims.

Alexander said his firm, which specializes in labor and employment issues, took to social media, and targeted advertising and media outreach to attract clients.

“We are getting the message out: If you are still working and not being paid, you are entitled to join the lawsuit,” Alexander said. “These workers are not only entitled to the money they should be paid but there should be damages on top of that.”

There is no end in sight to the funding impasse that has locked the Trump administration in a battle with Democrats and Republicans on Capitol Hill. Ever more, Trump’s agencies are forcing employees back to work—unpaid—to keep some functions of the government, including tax refund processing, open during the shutdown.

A federal trial judge in Washington last week turned down a push from federal employees for an order prohibiting the Trump administration from requiring unpaid labor during the shutdown. U.S. District Judge Richard Leon expressed empathy for workers, but said a temporary restraining order would cause “chaos” and potentially put lives at risk.

For Alexander and the other firms suing for money damages for federal workers, there’s a sense that their claims are a “slam dunk” win against the dysfunction of the federal government. Alexander filed his suit on behalf of a U.S. Customs official on Jan. 15. He styled the complaint as a collective action.

Attorneys who have filed suits in recent days in the Federal Claims court said they have reason to be optimistic that their clients will prevail. The cases, about a half-dozen so far, have been assigned by a local court rule to Judge Patricia Campbell-Smith. The judge, ruling in the case Martin v. United States, said the government was on the hook for back pay after the last major government shutdown in 2013.

Campbell-Smith and the lawyers in the case are still determining how much the government will pay in damages. The latest filing from December in the case from the 2013 shutdown shows these workers have yet to be paid.

Lawyers are flooded with inquiries.

Heidi Burakiewicz, a partner Washington’s Kalijarvi, Chuzi, Newman & Fitch and who is a lead attorney in the 2013 case, said the firm had received at least 7,000 email inquiries in recent days. She said a team of eight people are working on a broad spectrum of questions from federal workers.

In the Federal Claims court, Burakiewicz filed a suit with American Federation of Government Employees on behalf of a federal prison employee and a Justice Department employee.

“The questions run the gamut. What’s going to happen to my health insurance? I don’t have any money left and I have to choose between groceries and transportation to get to work. Can they fire me if I don’t come in? Truly, it’s hard to put into words what people are going through,” Burakiewicz said in an interview.

Campbell-Smith, citing the government shutdown, has put the case on hold. Justice Department lawyer had asked the litigation be stayed pending resolution of the shutdown, which limits the work of government lawyers.

The judge acknowledged in a recent order the “ironic circumstance that the very subject of the case also triggers the parties inability to proceed with the litigation.”

“That said, neither the court nor the attorneys at the Department of Justice has the authority to change the present circumstances,” she wrote.

Still, Burakiewicz said she expects the process to go more quickly than the 2013 litigation because now there is a road map to determine how to calculate damages and the issue has already been litigated.

“This is no way to treat workers,” Burakiewicz said. “We are suing under a Depression-era law that requires basic, minimum subsistence requirements. That’s being violated right now not by any employer but the United States of America. We shouldn’t have to be suing in court to get a basic requirement.”

As the shutdown has dragged on, federal employees have had to make tough decisions. Reports have said they have dipped into retirement savings, pawned their valuables and moonlighted for Uber and Lyft. Meanwhile, more workers have been called back in to duty without pay.

Some attorneys said their clients may eventually be forced to quit just to make ends meet and credit card bills and rent checks pile up.

“It’s a catastrophic situation,” said Jacob Statman of Baltimore’s Snider & Associates, which filed one of the lawsuits this week in Federal Claims court.

Statman described a flood of calls from federal employees seeking advice. We’re being bombarded in emails and voice mails,” he said. “People are making difficult decisions right now, especially when they are living paycheck to paycheck.”

Meanwhile, the cases in U.S. District Court for the District of Columbia are pending, despite an early loss for the workers. The cases challenge the authority of the government to force workers to report for duty without compensation. By some count, some 400,000 employees have been deemed essential and must show up.

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

Several unions and individual employees contend the requirement violates a law that prohibits government officials from spending money they don’t have and promising to spend money they don’t have. Leon denied a temporary restraining order in those cases.

Michael Kator, a partner at Washington’s Kator Parks & Weiser who argued before Leon, said the government is unconstitutionally imposing requirements on federal workers.

“It’s going to be disruptive no matter what. This situation is untenable in the long term. People can’t go on for months and years without getting paid,” Kator said in an interview. “At some point something has to change.”

He added, “If people start leaving their jobs in droves, because they have no choice, that will be the same disruption. Something has to break sooner or later.”

 

Read more:

‘There Is Real Hardship Being Felt By Innocent Federal Employees’: DC Judge

Shutdown Meltdown: What It Means for Law Firms and the Courts

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

Judiciary Extends Financial Lifeline an Extra Week Amid Shutdown