Call it progress, or another step in painfully slow legal proceedings that have stretched on for six years, but the class-action lawsuit over the 2013 government shutdown has entered a new phase.

Government attorneys have filed a motion to dismiss more than 2,000 federal employees who are either unidentified or ineligible for liquidated damages from a class-action lawsuit.

Federal employment attorney Heidi Burakiewicz had filed a class-action lawsuit on behalf of some 25,000 AFGE members who had worked without pay during the 16-day government shutdown back in 2013.

At issue was the Fair Labor Standards Act (FLSA), which Burakiewicz and AFGE said the government had violated the Anti-Deficiency Act by forcing excepted employees to work without pay during the 2013 shutdown.


The U.S. Court of Federal Claims agreed in 2017. Chief Judge Patricia Campbell-Smith ruled the impacted plaintiffs should receive liquidated damages: twice their back pay, including overtime.

Attorneys and consultants have spent the past two years attempting to agree on a formula for the purposes of calculating these damages. They’ve also reviewed the earnings and leave statements and time and attendance data for the plaintiffs, though attorneys have struggled to collect this information and determine who had worked overtime during the 2013 lapse.

But at last, attorneys involved in this case appear to be nearing the end of a lengthy eligibility determination process.

In total, 3,460 plaintiffs who opted into the 2013 class-action lawsuit are ineligible, according to the government’s motion, which attorneys filed last month.

Of that total, 1,050 are considered duplicate entries. Another 211 couldn’t be identified or confirmed as federal employees during the 2013 shutdown, attorneys and consultants said.

And 2,199 didn’t satisfy the five criteria needed to meet eligibility requirements for the case, according to the government’s motion. Plaintiffs in the 2013 shutdown lawsuit had to, for example, demonstrate they were actually federal employees for the purposes of the FLSA, were considered “excepted employees” and had worked at some point between Oct. 1-5, 2013.

At least 21,791 federal employees do meet the criteria and are still eligible, and their pursuit for damages will continue.

But the government’s motion to dismiss ineligible employees illustrates just how complex it’s been to determine who’s eligible for liquidated damages and who isn’t.

More than 180 people who opted into 2013 lawsuit, for example, were screeners at the Transportation Security Administration and are technically exempt from the FLSA, according to the government’s motion.

Some plaintiffs, the attorneys learned, worked for agencies that used carryover funding to pay their employees during the 2013 shutdown and therefore aren’t eligible for damages, according to the motion.

Meanwhile, both parties are still determining a methodology for the 2,617 plaintiffs who worked some measure of overtime.

“Further, there remain 12 individuals for whom their respective agencies are unable to provide requested data, and the parties are working on a methodology for determining damages calculations for those 12 individuals,” a Feb. 9 status update reads.

This 2013 lawsuit proceeded a nearly identical one that Burakiewicz and the Kalijarvi, Chuzi, Newman and Fitch law firm filed in late 2018 during the last government shutdown. Burakiewicz filed the suit on behalf of excepted employees with the American Federation of Government Employees.

Like the 2013 suit, plaintiffs in the most recent case seek back pay — including overtime — and liquidated damages for exempted employees forced to work without pay.

The National Treasury Employees Union filed a similar class-action lawsuit back in January, again seeking damages for the excepted employees who were forced to work without pay during the 35-day government shutdown earlier this year.

NTEU filed a separate lawsuit in federal district court, which challenged the Trump administration’s decision to recall tens of thousands of federal employees back to work without pay during the last government shutdown.

A federal district judge is considering the government’s motion to dismiss the NTEU case.