A coronavirus-free shutdown rally in January 2019. Image: Pablo Martinez Monsivais/AP/Shutterstock

A federal judge has rejected a suit challenging agency decisions to keep certain employees at work but unpaid—and to recall to work without pay others who initially had been furloughed—during the December 2018-January 2019 partial government shutdown.

The suit contends that those actions violated the Antideficiency Act, a law generally agencies from spending money that has not been appropriated by Congress, except for protection of life or property.


The NTEU argued that agencies went beyond that exception in requiring that certain employees work without pay, including some IRS employees called back to their jobs during the shutdown for the start of the tax-filing season.

A federal district judge in the District of Columbia ruled, though, that he has no jurisdiction over the complaint because no employees currently are in that status. He also found that an exception to the principle of mootness cited by the NTEU doesn’t apply—that there is a “reasonable expectation that the same complaining party will be subjected to the same action again.”

The court said that exception would apply only if the circumstances of any potential future funding lapse would be “fixed, knowable, and predictably repeatable”—but to the contrary they “are, by their very nature, nearly impossible to predict.”

He added that the IRS’s argument that working on tax returns was related to protection of life or property was “dubious” and that the evidence “clearly suggests that that decision was made to avoid the anticipated political heat that would have no doubt been generated” if refunds had been delayed.

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