Murphy Anderson Pens Amicus Brief on Behalf of Pro-worker Organizations Urging Federal Circuit to Review its Gov’t Shutdown FLSA Rulings
Mark Hanna, Michael Anderson and Nikita Rumsey of Murphy Anderson were part of a legal team that submitted amicus briefs on behalf of four workers’ rights associations urging the U.S. Court of Appeals for the Federal Circuit to rehear two cases en banc that allege FLSA violations by the U.S. government in connection with the 2013 and 2018 shutdowns and its failure to timely pay its essential employees who were made to work without pay.
In the two cases in question, Avalos et al. v. U.S. and Martin v. U.S., a Federal Circuit panel held that the federal government, which required certain employees to work without pay for the duration of the government shutdowns, was not liable for liquidated damages under the FLSA for its failure to timely pay such employees on the grounds that it was precluded from doing so by virtue of the Anti-Deficiency Act’s (ADA) prohibitions on expenditures during a lapse in appropriations.
As a result of the decisions, federal employees, some of whom had to work upwards of five weeks without pay, would be denied the protections afforded by the FLSA’s prompt-payment provision to compensate them for the downstream harms suffered from such delayed payment.
The briefs, submitted on behalf of the Metropolitan Washington Employment Lawyers Association (MWELA), the National Employment Lawyers Association (NELA), the National Employment Law Project (NELP), and the Impact Fund, urge the court to grant en banc review to realign the court’s holdings with applicable precedent and to forestall an otherwise potentially wide-ranging and deleterious impact on federal employees’ ability to enforce their rights under the FLSA.
In substance, amici argue that the Federal Circuit panel confused the ADA’s prohibition on contemporaneous payment of unappropriated funds with a nullification of the affected workers’ right to compensatory liquidated damages under the FLSA. Amici point to various cases that make clear that the ADA does not excuse the government from liability for violating its extant statutory or contractual obligations, including those imposed by the FLSA.
In a quote to Law360, Mark Hanna stated that "the panel tied itself in knots so as to not give federal employees all their rights under the FLSA,” and noted that “this issue is especially important as Congress again threatens a shutdown."
The groups are represented by Omar Vincent Melehy of Melehy & Associates LLC, Mark Hanna of Murphy Anderson PLLC and Alan R. Kabat of Bernabei & Kabat PLLC. The workers in Martin are represented by Heidi Burakiewicz and Robert DePriest of Kalijarvi Chuzi Newman & Fitch PC and Michael Lieder of Mehri & Skalet PLLC. The workers in Avalos are represented by Julie M. Wilson and Allison Giles of the National Treasury Employees Union and Leon Dayan and Joshua Segal of Bredhoff & Kaiser PLLC.