Congress avoided a shutdown Friday, but the union representing federal employees is moving forward with litigation over how the government handled contingency plans for its workers.
The American Federation of Government Employees will continue to pursue at least one of two lawsuits the group filed in U.S. District Court for the District of Columbia in the weeks leading up to Friday's budget showdown. The first lawsuit (PDF), filed March 30, is a request for shutdown contingency plans under the Freedom of Information Act (FOIA).
In the second lawsuit (PDF), filed Friday, union officials claim that any shutdown plan requiring federal employees to work without pay would be unlawful - and could in effect force workers to perform "involuntary servitude."
On Monday morning, a spokesman for the AFGE confirmed that the union is planning to move ahead with the FOIA request, but said that union officials are still deciding whether to pursue the lawsuit filed Friday.
The union first asked the Office of Management and Budget for shutdown contingency plans for federal executive agencies on March 2, according to the FOIA request. The union filed suit in federal court in order to expedite the request, since a shutdown seemed imminent at the time.
“Despite, however, the gravity and notoriety of this matter, nearly all Federal Executive Branch agencies have failed or refused to release their contingency plans to either the public or to federal employee unions such as AFGE,” the union stated in its FOIA request.
In the second suit, union officials noted that although OMB had not complied with its FOIA request as of Friday afternoon, a number of agencies had told employees that “essential” workers would still have to come in during a shutdown. These workers wouldn’t be paid until after the budget situation was resolved.
The union argued that because workers would be owed back-pay, the federal government would be taking on a financial obligation without an appropriation already in place. This practice, the union claimed, would be a violation of the Constitution’s Appropriations Clause. The union also claimed that forcing employees to work without pay under threat of administrative discipline is unlawful.
“Defendants’ actions violate the Thirteenth Amendment’s prohibition on involuntary servitude,” the union states in its complaint. Both OMB and the Office of Personnel Management are named as defendants in the second lawsuit.
Spokespersons for OMB and OPM declined to comment, citing the pending litigation.
David Borer, AFGE general counsel, said in a phone interview this afternoon that the union is waiting to see how Congress handles budget negotiations this week before deciding what to do with the second lawsuit. Even if a budget is passed, he added, the union may still pursue the case.
“There’s always the risk it could be ruled moot if the immediate threat of a shutdown is gone,” he said. However, he added, “In the current [political] environment, I don’t think anybody can be ... assured there isn’t another shutdown looming around the corner.”
Updated at 4:27 p.m. with comments from AFGE general counsel David Borer.