National Treasury Employees Union v. United States of America

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA FE I L - HD

MAR 16 2020

NATIONAL TREASURY ) Clerk, U.S. District & Bankruptcy

EMPLOYEES UNION, ) Courts for the District of Columbia

)

Plaintiff, )

) Civil Case No. 19-50 (RJL)

v. )

)

UNITED STATES OF AMERICA, ef al., +)

)

Defendants. )

JANETTE HARDY, et al., )

)

Plaintiffs, )

)

Vv. ) Civil Case No. 19-51 (RJL)

)

DONALD J. TRUMP, et al., )

)

Defendants. )

)

MEMORANDUM OPINION

Tee

(March/£ , 2020)

Federal employees Brandi and Justin Thornton (“individual plaintiffs”) and

National Treasury Employees Union (““NTEU”), a labor organization representing over one

hundred thousand federal employees, allege that the United States, President Donald J.

Trump, and several Executive Branch officials (collectively, “the Government”) violated

the United States Constitution and various federal statutes by compelling federal

employees to work without pay during the 2018 lapse in funding for certain Executive

Branch agencies (“government shutdown” or “‘shutdown”). See NTEU v. United States,

19-cv-50; Hardy v. Trump, 19-cv-51. Both the individual plaintiffs and NTEU

(collectively, “plaintiffs”) claim that the Anti-Deficiency Act, 31 U.S.C. § 1342—which,

subject to certain exceptions, prohibits government expenditures or obligations absent

available appropriations—violates the Appropriations Clause of the United States

Constitution by authorizing Executive Branch agencies to “obligate funds without

limitation,” see Hardy Am. Compl. §§ 59-60 [19-cv-51 Dkt. # 7]; NTEU Am. Compl.

qq 41-45 [19-cv-50 Dkt. # 13]; see also NTEU Opp. to Mot. to Dismiss (“NTEU Opp’n”)

at 2 [19-cv-50 Dkt. # 27]. Plaintiffs further contend that even if the Anti-Deficiency Act

is constitutional, the Government violated it by requiring them to work during the

shutdown. Hardy Am. Compl. J 71-74, 80, 86; NTEU Am. Compl. {4 46-50. The

individual plaintiffs also assert that the Government’s actions violated the Fifth and

Thirteenth Amendments to the United States Constitution. Hardy Am. Compl. §§ 39-56.!

For its part, NTEU separately claims that the Government’s conduct constituted unlawful

agency action in violation of the Administrative Procedures Act (“APA”). NTEU Am.

Compl. 4{§ 49, 54.

Shortly after filing suit, plaintiffs moved for temporary restraining orders and

preliminary injunctive relief, seeking to prohibit the Government from requiring them to

report to work during the shutdown. NTEU Mot. for Temp. Restraining Order [19-cv-50

' Individual plaintiffs also brought a claim under the Fair Labor Standards Act, Hardy Am. Compl.

{| 67, which they are no longer pursuing, Hardy Opp. to Mot. to Dismiss (“Hardy Opp’n) at 1 n.1

[19-cv-51 Dkt. # 42].

Dkt. # 8]; Hardy Mot. for Temp. Restraining Order [19-cv-51 Dkt. # 8]. After a hearing, I

denied plaintiffs’ request for a temporary restraining order, but deferred ruling on their

motions for a preliminary injunction. See 1/15/19 Minute Order. Before briefing on those

motions was complete, the shutdown ended, seemingly mooting plaintiffs’ claims.’

Plaintiffs maintain, however, that their claims should not be dismissed because another

shutdown could occur in the future, causing them the same harm. Pending before me is

the Government’s combined motion to dismiss plaintiffs’ amended complaints for lack of

jurisdiction. See Defendants’ Combined Mot. to Dismiss (“Gov’t Mot.”) [19-cv-50 Dkt. #

26; 19-cv-51 Dkt. # 26]. Upon consideration of the briefing, oral argument, the relevant

law, the entire record, and for the reasons stated below, the Government’s motion to

dismiss is GRANTED.

BACKGROUND

I. Relevant Law

The Appropriations Clause of the United States Constitution provides that “No

Money shall be drawn from the Treasury, but in Consequence of Appropriations made by

Law.” U.S. Const., art. I, § 9, cl. 7. The meaning of the clause is straightforward: Congress

has exclusive power over the federal purse, and no money can be disbursed from the

Treasury absent an appropriation by Congress. OPM v. Richmond, 496 U.S. 414, 424

(1990). Congress’s exclusive authority in this area is reaffirmed by federal statute. For

* Based on past practices, excepted employees are paid back pay for work performed during a

shutdown after that shutdown ends. See Defs.’ Combined Mot. to Dismiss (“Gov’t Mot.”) at 31

[19-cv-50 Dkt. # 26; 19-cv-51 Dkt. # 26]; see also 31 U.S.C. § 1341(c)(2) (guaranteeing pay for

furloughed and excepted employees at the earliest date after the lapse in appropriations ended).

3

instance, the Anti-Deficiency Act prohibits federal officers and employees from

authorizing expenditures in excess of the amount of appropriations made available by

Congress, and it further prevents them from entering into contracts “for the payment of

money before an appropriation is made unless authorized by law.” 31 U.S.C.

§ 1341(a)(1)(A)HB) (emphasis added). The Act contains an exception to this general

prohibition under which the Government may “accept voluntary services... or employ

personal services exceeding that authorized by law” only in “emergencies involving the

safety of human life or the protection of property.” Jd. § 1342. But, as the statutory

language makes clear, the emergency exception is narrow; it does not cover the “ongoing,

regular functions of government the suspension of which would not imminently threaten

the safety of human life or the protection of property.” Id.

In accordance with the Appropriations Clause and the Anti-Deficiency Act, federal

agencies must cease their activities if Congress does not appropriate funding, unless those

activities qualify as an exception to the Anti-Deficiency Act. The Department of Justice

(“DOJ”) provides its own guidance as to what types of activities qualify as exceptions. See

Gov ’t Operations in the Event of a Lapse in Appropriations, 1995 OLC Op., 1995 WL

17216091; see also Auth. for the Continuance of Gov’t Functions During a Temp. Lapse

in Appropriations, 1981 OLC Op., 1981 WL 30865. In its view, two criteria must be

satisfied with respect to the “emergency” exception created by the Act: “First, there must

be some reasonable and articulable connection between the function to be performed and

the safety of human life or the protection of property;” and “[s]Jecond, there must be some

reasonable likelihood that the safety of human life or the protection of property would be

4

compromised, in some [significant] degree, by delay in the performance of the function in

question.” Jd. at *6.7 Apart from the “emergency” exception, DOJ also considers certain

activities as exceptions if they are related to other government functions that Congress did

decide to fund; in those circumstances, funding for unfunded activities is, in DOJ’s view,

“necessarily implied” by funding for the related functions. 1995 WL 17216091 at *3.

Relying on DOJ’s guidance, the Office of Management and Budget (“OMB”) directs

agencies to prepare “contingency plans” that designate which activities and employees are

to be excepted in the event of a government shutdown. See NTEU Am. Compl. { 14; see

also id. {§ 15, 20.

Wl. Factual Background

On December 22, 2018, funding for several Executive Branch agencies lapsed,

triggering a partial government shutdown. NTEU Am. Compl. J 8; Hardy Am. Compl. §

26. Affected agencies accordingly ceased performing certain activities but, pursuant to

their contingency plans, deemed thousands of federal employees “excepted” under the

Anti-Deficiency Act, including thousands of NTEU members and the individual plaintiffs.

See NTEU Am. Compl. ff 9, 20, 21; Hardy Am. Compl. {J 27, 28, 33. Those employees

were required to work without pay while the lapse in funding continued. NTEU Am.

3 The Department of Justice issued its guidance in 1995, after the Anti-Deficiency Act was

amended in 1990. For the most part, it reaffirmed the Attorney General’s 1981 interpretation of

the emergency exception but added the word “significant” to its second criterion to “forestall

possible misinterpretations” of its opinion. 1995 WL 17216091, at *6.

Compl. {J 9, 22; Hardy Am. Compl. § 29.

Three weeks after the partial shutdown began, plaintiffs each filed suit challenging

the Government’s decision to require them to report to work. See generally NTEU Compl.

[19-cv-50 Dkt. # 1]; Hardy Compl. [19-cv-51 Dkt. # 1].4 They also filed motions for

temporary restraining orders (“TROs”) and preliminary injunctive relief. See NTEU Mot.

for Temp. Restraining Order; Hardy Mot. for Temp. Restraining Order. I held a hearing

on those motions on January 15, 2019. Emphasizing that the shutdown was a budgetary

dispute that should be solved by the political branches, I orally denied plaintiffs’ requests

for temporary restraining orders, and I subsequently issued a written order memorializing

my reasoning. See 1/15/19 Order at 1 [19-cv-50 Dkt. # 16; 19-cv-51 Dkt. # 19].° I deferred

ruling on plaintiffs’ requests for preliminary injunctive relief until the parties completed

briefing on those motions. Id.

On the same day as the TRO hearing, the Internal Revenue Service (“IRS”) issued

an updated contingency plan, recalling thousands of previously-furloughed IRS employees

for the purpose of processing federal tax refunds. See NTEU Am. Compl. {ff 24, 29.

President Trump had previously announced that the shutdown would not delay the issuance

‘ Individual plaintiffs’ suit initially included federal employees Janette Hardy and Kristen Rohde.

Those individuals, however, voluntarily dismissed their claims on December 2, 2019. Notice of

Voluntary Dismissal [19-cv-51 Dkt. # 48]. A group of air traffic controllers and their union also

filed a similar suit on January 11, 2019. Nat'l Air Traffic Controllers Ass'n v. United States, Civ.

A. No. 19-cv-62 (RJL) (D.D.C. 2019) [Dkt. #1]. On February 15, 2019, they voluntarily dismissed

their claims. See Notice of Voluntary Dismissal [19-cv-62 Dkt. #21].

> After the January 15, 2019 hearing, the President signed into law the Government Employee Fair

Treatment Act of 2019, which guaranteed furloughed and excepted employees would be paid

during the lapse in appropriations. See 31 U.S.C. § 1341(c).

6

of federal tax refunds, and the IRS announced its intention to require 46,052 employees to

work during the shutdown, a significant increase from the 9,946 employees excepted under

its original contingency plan. See id. J 25, 27, 28. According to the IRS, those additional

employees were now designated “excepted” under both the Anti-Deficiency Act’s

emergency exception and the “necessarily implied by law” exception. See id. JJ 24, 28,

29, 31. Shortly after the TRO hearing, NTEU amended its complaint, adding allegations

regarding the updated IRS contingency plan. See id.

On January 25, 2019, before the parties’ briefing was complete on plaintiffs’

motions for preliminary injunctive relief, the Government temporarily restored funding for

three weeks, and plaintiffs withdrew their motions. NTEU Notice of Withdrawal [19-cv-

50 Dkt. # 20]; Hardy Notice of Withdrawal [19-cv-51 Dkt. #22]. [held a status conference

on January 31, 2019 and, to prevent delays should another shutdown occur when

Congress’s temporary funding lapsed, set a briefing schedule for any subsequent

preliminary injunction motions. See 1/31/19 Minute Order. On February 15, 2019,

however, Congress enacted appropriations for the remainder of the fiscal year. See

Consolidated Appropriations Act, 2019, Pub. L. No 116-6, 133 Stat. 13. I held another

status conference on February 22, 2019. At that hearing, the Government asserted that the

appropriations mooted plaintiffs’ claims and deprived this Court of jurisdiction to

adjudicate them; plaintiffs countered that an exception to mootness doctrine applied

because their claims were capable of repetition but evaded review. See. 2/22/19 Tr. at

5:23-25; 7:6-7; 7:18-25. The Government moved to dismiss plaintiffs’ suits for lack of

jurisdiction on March 19, 2019. See Gov’t Mot. The parties completed briefing on the

7

f

Government’s motion on April 23, 2019, and I held oral argument on December 4, 2019.

LEGAL STANDARD

Pursuant to Federal Rule of Civil Procedure 12(b)(1), the Government moves to

dismiss plaintiffs’ complaints for lack of subject matter jurisdiction, contending plaintiffs

claim are moot. Gov’t Mot. at 10-12. Although the Government must establish mootness,

plaintiffs bear the burden of showing an exception to mootness applies. S. Co. Servs., Inc.

v. FERC, 416 F.3d 39, 43 (D.C. Cir. 2005). “In deciding a motion to dismiss under Federal

Rule of Civil Procedure 12(b)(1), the Court must accept as true all well-pleaded factual

allegations and draw all reasonable inferences in favor of the plaintiffs.” Logan v. Dep’t

of Veterans Affairs, 357 F. Supp. 2d 149, 153 (D.D.C. 2004) (internal quotation marks

omitted). “[W]hen the inquiry focuses on the Court’s power to hear the claim, the Court

may give the plaintiffs factual allegations closer scrutiny and may consider materials

outside the pleadings.” Jd.

ANALYSIS

Under Article III of the Constitution, federal courts have the authority to adjudicate

only “Cases” and “Controversies” between adverse litigants. Raines v. Byrd, 521 U.S. 811,

818 (1997); Valley Forge Christian College v. Americans United for Separation of Church

and State, Inc., 454 U.S. 464, 471 (1982). Accordingly, “to invoke federal-court

jurisdiction, a plaintiff must demonstrate that he possesses a legally cognizable interest, or

personal stake, in the outcome of the action.” Genesis HealthCare Corp. v. Symcezyk, 569

U.S. 66, 71 (2013) (internal quotation marks omitted). “This requirement ensures that the

Federal Judiciary confines itself to its constitutionally limited role of adjudicating actual

8

and concrete disputes, the resolutions of which have direct consequences on the parties

involved.” Jd. And, as Chief Justice Roberts himself pointed out in Already, LLC v. Nike,

Inc., “an actual controversy must exist not only at the time the complaint is filed, but

through all stages of the litigation.” 568 U.S. 85, 90-91 (2013) (internal quotation marks

omitted). Should “an intervening circumstance deprive[] the plaintiff of a personal stake

in the outcome of the lawsuit,” the suit is no longer a “Case” or “Controversy” and “must

be dismissed as moot.” Genesis Healthcare, 569 U.S. at 72 (internal quotation marks

omitted); see also United States v. Sanchez-Gomez, 138 S. Ct. 1532, 1537 (2018)

(recognizing that a moot case “is outside the jurisdiction of the federal courts”).

The Government contends that Congress’s February 15, 2019 appropriations ended

the shutdown and mooted plaintiffs’ claims, meaning I no longer have jurisdiction over

them. Gov’t Mot. at 10-11. Not surprisingly, plaintiffs disagree. Although they do not

contest mootness, plaintiffs contend an exception to mootness applies because their claims

are capable of repetition yet evading review. See NTEU Opp’n at 1, 4; Hardy Opp. to Mot.

to Dismiss (“Hardy Opp’n’’?) at 1 [19-cv-51 Dkt. # 42]. That doctrine, however, applies

“only in exceptional situations,” Spencer v. Kemna, 523 US. 1, 17 (1998), where the party

opposing dismissal establishes “(1) the challenged action is in its duration too short to be

fully litigated prior to its cessation or expiration, and (2) there is a reasonable expectation

that the same complaining party will be subjected to the same action again,” Sanchez-

Gomez, 138 S. Ct. at 1540; S. Co. Servs., 416 F.3d at 43 (recognizing that the party

opposing jurisdictional dismissal bears the burden of proving mootness exception applies).

Plaintiffs argue both requirements are satisfied here because another shutdown could occur

9

in the future, and any claims arising from it would likely not be resolved before federal

funding is restored. NTEU Opp’n at 5-6; Hardy Opp’n at 3-5. Thus, in plaintiffs’ view,

their claims remain live and should be passed on by this Court. Unfortunately for plaintiffs,

I disagree.

As an initial matter, I “must first determine exactly what must be repeatable . . . to

save the case from mootness” in order “to decide whether the same type of [Jaction . . . is

sufficiently likely to recur.” Del Monte Fresh Produce Co. v. United States, 570 F.3d 316,

322 (D.C. Cir. 2009) (internal quotation marks omitted) (some alterations). The relevant

“wrong” capable of repetition “must be defined in terms of the precise controversy it

spawns,” rather than a generalized or speculative future harm. See People for Ethical

Treatment of Animals, Inc. (“PETA”) v. Gittens, 396 F.3d 416, 422 (D.C. Cir. 2005)

(emphasis added). “This demand for particularity ensures ‘that courts resolve only

continuing controversies between the parties.’” Guedes v. Bureau of Alcohol, Tobacco,

Firearms & Explosives, 920 F.3d 1, 15 (D.C. Cir. 2019) (quoting PETA, 396 F.33d at 422).

“Courts have ‘interpreted “same action” to refer to particular agency policies, regulations,

guidelines, or recurrent identical agency actions.’” Beethoven.com LLC v. Librarian of

Congress, 394 F.3d 939, 951 (D.C. Cir. 2005) (quoting Public Utilities Comm’n of Cal. v.

FERC, 236 F.3d 708, 714-15 (D.C.Cir.2001)). Here, the “action” or “harm” capable of

repetition is Congress’s failure to appropriate adequate federal funding for certain

Executive agencies—including the IRS, DOJ, the Department of Transportation, and the

Department of Agriculture—and those agencies’ subsequent decisions to require federal-

employee plaintiffs to report to work, despite the lapse in appropriations.

10

That specific controversy, however, is not “capable of repetition.” To establish that

claims are “capable of repetition,” plaintiffs must show “a reasonable expectation or

demonstrated probability that the action will recur;” “[a] theoretical possibility,” however,

“is not sufficient to qualify as capable of repetition... .” Senate Permanent Subcommittee

on Investigations v. Ferrer, 856 F.3d 1080, 1088 (D.C. Cir. 2017) (quoting Beethoven.com,

394 F.3d at 951) (internal quotation marks omitted). Our Circuit Court’s case law sheds

light on when that standard is satisfied. Claims are capable of repetition when the legal

controversy is “fixed, knowable in advance, and thus predictably repeatable.” Reid v.

Hurwitz, 920 F.3d 828, 840 (D.C. Cir. 2019) (Katsas, J., dissenting). For instance, in De/

Monte Fresh Produce Co. v. United States, our Circuit Court considered a produce

distributor’s claims that a government agency unreasonably delayed adjudicating its export

license application. 570 F.3d at 320-21. The agency ultimately granted that particular

license while the litigation was pending, and the district court dismissed the case as moot.

Id. at 321. Our Circuit Court reversed, holding that the distributor’s claims were not moot,

but rather capable of repetition because the legal wrong at issue—the agency’s alleged

violation of a federal statute that required it to adjudicate a properly-prepared license within

nine days—was reasonably likely to recur. Jd. at 324-25. Significantly, that dispute

hinged on the narrow and repeatable issue of whether the relevant statutory deadlines

applied to the agency and were mandatory. Jd. It did not, however, depend on any of the

specific facts underlying plaintiff's license application.

Similarly, in Christian Knights of the Ku Klux Klan v. District of Columbia, our

Circuit concluded that a dispute over whether the District of Columbia could restrict the

11

Ku Klux Klan’s permit to march in the District due to threatened violence was capable of

repetition. 972 F.2d 365, 367, 370 (D.C. Cir. 1992). There, the court reasoned that it was

reasonably likely that the same plaintiff would again seek the same kind of permit. Jd. at

370. The court pointed to: the fact that the District is a “perennial favorite for

demonstrations;” prior marches by the KKK in D.C.; and the KKK’s general “resolve[] to

continue marching,” including its representations that it “regularly” conducts such

marches. Jd. at 370, 371. All told, the court was “confident” that the KKK would again

attempt to march in the District, and it accordingly concluded the dispute was not moot.

Id. at 371.

By contrast, claims are not “capable of repetition” if they are “highly fact-specific.”

PETA, 396 F.3d at 424. In PETA v. Gittens, our Circuit Court held that plaintiff's First

Amendment claims against the District of Columbia Arts Commission for alleged

impermissible viewpoint discrimination were not capable of repetition because they

“turn[ed] on exactly what . . . criteria” the Commission used to exclude PETA’s piece of

artwork from a government-sponsored exhibit, while also approving other designs that

PETA claimed were analogous. Jd. at 423-24. As the Circuit explained, for the particular

harm to PETA to recur, “[t]he District would have to sponsor another such public arts

display; it would have to call upon private parties to participate in the design of the

objects .. . [;] PETA would have to believe it could advance its cause by participating in

the program; PETA would have to submit a proposed design; the Commission would have

to reject it as inconsistent with Commission’s criteria; at the same time, the Commission

would have to approve other designs not meeting its criteria; and those non-conforming

12

designs would have to be analogous to the design PETA submitted.” Jd. at 424. In our

Circuit Court’s view, the wrong suffered by PETA was unlikely to recur because such “a

sequence of coincidences” was “too long to credit.” Id.

So too here. Unlike the relatively static nature of the issues in Christian Knights

and Del Monte, the facts and circumstances of a possible future lapse in appropriations are

not—to say the least—fixed, knowable, and predictably repeatable. To the contrary, they

depend on a series of circumstance-specific political calculations that are, by their very

nature, nearly impossible to predict. See Beethoven.com LLC, 394 F.3d at 951 (concluding

claims were not capable of repetition where an agency decision was “motivated by factors

unique” to ‘that particular situation). As the Government points out, numerous

contingencies related to a possible future shutdown include: if, when, and under what

circumstances Congress might decide to let appropriations lapse; what agencies would be

affected by such a lapse, which in turn depends on Congress’s decision to continue to funds

certain agencies and not others in the event of a shutdown; and how the affected agencies

will respond, including the terms of their contingency plans as well as their circumstance-

specific decisions about whether to except certain employees, including the plaintiffs here.

See Gov’t Mot. at 16-19. Thus, in order to conclude plaintiffs will face the same harm in

the future, J would have to assume a shutdown will occur, the same agencies will be

affected, those agencies will react the same way again, and those agency decisions will

affect the same plaintiffs. Like the fact-specific controversy in PETA, that chain of political

13

events is simply “too long to credit.” 396 F.3d at 424.°

Indeed, events that transpired during this litigation only confirm the speculative

nature of plaintiffs’ claims. For instance, in opposing the Government’s motion to dismiss,

the individual plaintiffs posited it was likely Congress would not pass any appropriations

in September 2019, thereby triggering another shutdown. See Hardy Opp’n at 5. It also

predicted that Congress would fail to raise the debt ceiling before the end of the fiscal year

and, again, cause another shutdown. Jd. Of course, neither came to pass.

If the foregoing were not enough, our Circuit Court has twice affirmed district court

decisions holding that claims arising from past government shutdowns are too speculative

to satisfy the capable-of-repetition exception to mootness. See Leonard v. United States

Dep’t of Defense, 598 F. App’x 9, 10 (D.C. Cir. 2015) (2013 shutdown); Am. Fed’n of

Gov’t Employees (“AFGE”) v. Raines, No. 98-5045, 1998 WL 545417 (D.C. Cir. 1998)

(1995 shutdown). Although those opinions are—as plaintiffs emphasize—unpublished

and lack detailed analysis, they nevertheless provide further confirmation that plaintiffs’

claims cannot proceed. As the district court reasoned in AFGE, “[i]t would be entirely

speculative for this Court to attempt to predict if, and when, another lapse in appropriations

may occur, how long that lapse might be, which agencies might be subject to the lapse,

which employees might be affected, and whether employees will be required to work

6 NTEU’s status as an organization does not save its claims from mootness. Although NTEU

purports to bring suit on behalf of itself and its members, NTEU Am. Compl. { 4, it does not allege

any harm to NTEU; it therefore brought suit in its associational capacity on behalf of its members,

see id. J§ 23, 45, 50, 53 (asserting injury to NTEU members). Because NTEU’s members’ claims

are moot, NTEU’s claims are likewise moot. See Summers v. Earth Island Inst., 555 U.S. 488,

494-95 (2009).

14

without compensation.” AFGE v. Rivlin, 995 F. Supp. 165, 166 (D.D.C. 1998), affirmed

sub nom. AFGE vy. Raines, 1998 WL 545417. That reasoning, which our Circuit Court

summarily affirmed, applies with equal force here.’

Plaintiffs’ arguments to the contrary are not persuasive. Plaintiffs contend that only

their “alleged legal injury” must be capable of repetition, not “every legally relevant

characteristic” to the legal challenge. See NTEU Opp’n at 6 (quoting FEC v. Wis. Right to

Life, Inc., 551 U.S. 449, 463 (2007)); Hardy Opp’n at 8 (same). Thus, in plaintiffs view,

because another shutdown is likely to occur at some point in the future, their claims are

capable of repetition; the other contingencies identified above are simply underlying facts

or characteristics of their legal challenge that are irrelevant to the capable-of-repetition

analysis. NTEU Opp’n at 6-7; see also Hardy Opp’n at 8. Plaintiffs are wrong. It is not

enough for a court to simply conclude that another shutdown may occur in the future. See

Atlas Brew Works, LLC v. Barr, 391 F. Supp. 3d 6, 16 (D.D.C. 2019) (concluding that

satisfying the “threshold contingency” of a future shutdown was not sufficient to satisfy

the capable-of-repetition exception). Plaintiffs must also establish that the other

contingencies inherent in some future budgetary dispute between the two political branches

are reasonably likely to recur.2 Jd. at 15-16. Those underlying political choices, or

’ Plaintiffs contend these cases have no persuasive force because, in the time since, “the political

branches have demonstrated a decreasing ability to fund the government continuously.” NTEU

Opp’n at 12; see also Hardy Opp’n at 5. But plaintiffs miss the point: the recurrence of another

shutdown at some point in the future does not alone render their particular claims capable of

repetition. See infra at 15-16.

8 NTEU submits that because another shutdown is likely to recur, at the very least its

Appropriations Clause claim is capable of repetition. NTEU Supp. Submission at 5 [19-cv-50 Dkt.

# 38]. In its view, the Court “need only conclude that it is reasonable to expect that the future

15

“contingencies,” are not simply irrelevant facts underlying this legal challenge; they

determine the nature of the harm to plaintiffs and, indeed, whether the plaintiffs are harmed

at all. And although it may be true, as plaintiffs urge, that a shutdown is likely to occur at

some point in the future, uncertainty as to when it will occur only highlights the difficulty

in predicting the attendant political circumstances of that hypothetical shutdown, which in

turn renders the numerous other contingencies identified above even more speculative.

In sum, I simply cannot conclude that it is “reasonably likely” that all of the

hypothetical events detailed above will occur at the same time and harm the same plaintiffs

in the same way alleged here. See Atlas Brew Works, 391 F. Supp. 3d at 16; see also

Fisheries Survival Fund v. Locke, 628 F. Supp. 2d 65, 66-67 (D.D.C. 2009) (recognizing

that a “hypothetical string of events” is “far too attenuated to save plaintiff's claim from a

finding of mootness’’). Indeed, it would be inappropriate and unwise for the Judiciary to

pass judgment based on what the political Branches may or may not do at some point in

the future. And here, where the underlying dispute arises from a budgetary dispute

involving “complex political choices,” judicial restraint is particularly appropriate. 13C

FEDERAL PRACTICE & PROCEDURE § 3533.8.1 (3d ed.) (“The more complex the process—

lapse would affect one of the 33 federal agencies and departments at which NTEU represents

employees.” Jd. NTEU cannot so easily sidestep Article III. It sued on behalf of specific members

affected by the shutdown; it cannot save those claims from mootness because it is an association

representing numerous federal agencies that may (or may not) be affected by a hypothetical future

shutdown. The D.C. Circuit case upon which NTEU relies is not to the contrary. See Abigail

Alliance for Better Access to Developmental Drugs v. von Eschenbach, 469 F.3d 129 (D.C. Cir.

2006); 12/4/19 Tr. at 18:15-19:13. In that case, the D.C. Circuit concluded the plaintiff association

itself had organizational standing, and it recognized that all of the association’s members, who

were terminally ill patients, continued to be harmed by the challenged government policy. 469

F.3d at 133-35. That is simply not the case here.

16

such as a legislative budgeting process—the greater the uncertainty whether the future will

ever present sufficiently similar constraints and sufficiently similar responses. And the

more thoroughly political the judgments, the greater the wisdom of leaving future quarrels

for future decision.”); see also Nat’! Wildlife Fed’n v. United States, 626 F.2d 917, 924

(D.C. Cir. 1980) (recognizing that disputes over the “federal budget” are “the archetype of

those best resolved through bargaining and accommodation between the legislative and

executive branches.”).

That said, I would be remiss to let the Government’s “emergency exception” claim

for IRS workers go unnoted. In January 2019, the IRS recalled thousands of its employees

to work, without pay, to process federal tax returns, citing, among other things, the

emergency exception to the Anti-Deficiency Act. The record clearly suggests that that

decision was made to avoid the anticipated political heat that would have no doubt been

generated as to both Executive and Legislative officeholders had the shutdown caused

delays in the disbursement of taxpayer refunds. See supra at 6-7. Not surprisingly,

Congress has taken no remedial action in response to date, despite the IRS’s dubious claim

that those employees were somehow necessary for “the safety of human life or the

protection of property.” See 31 U.S.C. § 1342. Fortunately for the Government, however,

not every self-serving transmogrification of the law can be righted by the courts. Plaintiffs’

claims are nonetheless moot and do not satisfy the capable-of-repetition exception to

mootness. I therefore lack jurisdiction to adjudicate them.

17

CONCLUSION

Thus, for all of the foregoing reasons, the Government’s motion to dismiss is

GRANTED. A separate order consistent with this decision accompanies this

\

Memorandum Opinion. *

RICHARD J.LEQN

United States District Judge

18