The U.S. Government has filed a motion in U.S. Claims Court to dismiss a collective action lawsuit brought against them by federal employees who worked during the nearly monthlong shutdown without being paid on their scheduled pay dates.

The motion, which was filed in early May, argued that the federal employees failed to state a claim upon which relief may be granted.

Citing the Anti-Deficiency Act, which criminalizes the spending of money without appropriations and explicitly mandates when excepted federal employees will be paid following a lapse in appropriations, as well as the federal employees’ failure to make a claim for damages under the Fair Labor Standards Act, the motion asks a judge to dismiss the lawsuit.

A collective action lawsuit filed Jan. 2 in U.S. Court of Federal Claims alleged that the Fair Labor Standards Act was violated during the December 2018 to January 2019 partial federal government shutdown when “excepted employees” — those who must continue to work despite unfunded annual appropriations — did not receive payment for overtime work and/or minimum wage performed after the start of the shutdown on their regularly scheduled pay period.

The initial lawsuit was filed by Justin Tarovisky, a senior officer specialist at a prison in West Virginia, and Grayson Sharp, a senior officer specialist with the Department of Justice/Board of Probation in Pennsylvania. Local 3947 labor union leader Sandy Parr, a food service foreman at the Rochester Federal Medical Center, joined more than a dozen other federal employees from around the country in the lawsuit. A collective action lawsuit requires an employee to affirmatively join the suit.

Parr said in February that about 25 percent, or 50, of the eligible employees at the Rochester FMC had signed on to the lawsuit.

The Anti-Deficiency Act, which was originally enacted in 1870 and has been updated over the years including the most recent update in 2019 following the latest government shutdown, “unambiguously” provided that excepted employees “shall be paid for such work … at the earliest date possible after the lapse in appropriations ends, regardless of scheduled pay dates, and subject to the enactment of appropriations Acts end the lapse,” according to the filing.

No decision has been made on the motion. The plaintiffs in the case were granted an extension to file a response to the motion.

The government passed legislation on Jan. 16 authorizing back pay for the employees who were affected by the shutdown.

A similar class action lawsuit was brought in 2013 by the same attorney, Heidi Rhodes Burakiewicz, of the Washington, D.C., law firm Kalijarvi, Chuzi, Newman & Fitch. The courts ultimately ruled in 2017 that the government was liable for damages for failing to pay federal employees working during a shutdown.