HARDY et al v. TRUMP et al

Filing 1

COMPLAINT against ALL DEFENDANTS ( Filing fee $ 400 receipt number 0090-5880011) filed by JANE DOE 3, JANE DOE 2, JANE DOE 1, JOHN DOE 1, JOHN DOE 2. (Attachments: #1 Civil Cover Sheet, #3 Summons POTUS to White House Counsel, #4 Summons POTUS to USAO, #5 Summons POTUS to Acting AG, #6 Summons Sec. Chao to DOT OGC, #7 Summons Sec. Chao to Acting AG, #8 Summons Sec. Chao to USAO, #9 Summons Acting AG Whitaker to DOJ, #10 Summons Acting AG Whitaker to USAO, #11 Summons Sec. Perdue to Acting AG, #12 Summons Sec. Perdue to Ag. OGC, #13 Summons Sec. Perdue to USAO, #14 Summons Sec. Nielsen to DHS OGC, #15 Summons Sec. Nielsen to Acting AG, #16 Summons Sec. Nielsen to USAO)(Clark, Daniel)

Case 1:19-cv-00051 Document 1 Filed 01/09/19 Page 1 of 15

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JANE DOE 1, JANE DOE 2, JANE DOE 3,
JOHN DOE 1, and JOHN DOE 2,
Plaintiffs,
v.
DONALD J. TRUMP,
President of the United States
1600 Pennsylvania Avenue, NW
Washington, DC 20500
ELAINE L. CHAO,
Secretary of Transportation
U.S. Department of Transportation
1200 New Jersey Avenue, SE
Washington, DC 20590
MATTHEW G. WHITAKER,
Acting Attorney General
U.S. Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
SONNY PERDUE,
Secretary of Agriculture
U.S. Department of Agriculture
1400 Independence Avenue, SW
Washington, DC 20250
KIRSTJEN M. NIELSEN,
Secretary of Homeland Security
U.S. Department of Homeland Security
245 Murray Lane, SW
Washington, DC 20528
and
THE UNITED STATES OF AMERICA
Defendants.

Civil Action No. 19-51

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COMPLAINT
(The United States Constitution; Declaratory Judgment Act; Fair Labor Standards Act;
and Anti-Deficiency Act)
Plaintiffs Jane Doe 1, Jane Doe 2, Jane Doe 3, John Doe 1, and John Doe 2, by and
through undersigned counsel, bring this Complaint against President Donald J. Trump, in his
official capacity; Secretary of the Department of Transportation Elaine L. Chao, in her official
capacity; Acting Attorney General Matthew G. Whitaker, in his official capacity; Secretary of
Agriculture Sonny Perdue, in his official capacity; Secretary of Homeland Security Kirstjen M.
Nielsen, in her official capacity; the United States of America; their employees, agents,
constituent agencies and components, and successors in office (“Defendants”). Jane Doe 1 joins
this complaint as to all Counts. Jane Doe 2, Jane Doe 3, and John Doe 1 join this complaint only
as to Counts 1-6. John Doe 2 joins this complaint only as to Count 2. Plaintiffs are filing a
Motion to File Under a Pseudonym simultaneous to this complaint.
Regarding their respective Counts, Plaintiffs allege as follows:
PRELIMINARY STATEMENT
1.

Plaintiffs Jane Doe I, Jane Doe II, Jane Doe III, and John Doe I bring this action

as federal employees who are compelled to work without pay in violation of Articles I and II and
the Fifth and Thirteenth Amendments of the United States Constitution; the Fair Labor Standards
Act, 29 U.S.C. § 201, et seq., (“FLSA”); the Anti-Deficiency Act, 31 U.S.C. §§ 1341, 1342
(“Anti-Deficiency Act”). And, with respect to John Doe 2, furloughed without authorization to
obtain outside employment in violation of the Fifth Amendment of the United States
Constitution.

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2.

On December 22, 2018, Defendants initiated a partial government shutdown due

to a lapse in appropriations. In doing so, Defendants identified Plaintiffs as either “excepted” or
“non-excepted” employees. “Excepted” employees are “employees who are funded through
annual appropriations who are nonetheless excepted from the furlough . . .” under guidance
issued by the U.S. Office of Personnel Management (“OPM”).
3.

“Non-excepted” employees are those who are subject to furlough and ordered to

not report to work.
4.

Jane Doe 1, Jane Doe 2, Jane Doe 3, and John Doe 1 were designated as

“excepted” employees and subsequently ordered and required by the Defendants to work without
pay until such time as the lapse in appropriations is to end.
5.

John Doe 2 was designated as a “non-excepted” employee and subsequently

ordered to not report to work and remain in a furlough status.
6.

The President of the United States stated on January 4, 2019, that this lapse in

appropriations could last, and Plaintiffs would remain in their respective statuses, for “months or
even years.”
7.

Plaintiffs seek permanent injunctive relief preventing Defendants from (1)

requiring employees to report for duty without pay during the current lapse in government
appropriations; (2) taking any adverse action other than a furlough against employees who
decline to report for duty without pay during the current lapse in government appropriations; and
(3) restricting employees’ ability to obtain outside employment (or other form of compensation)
during the current lapse in government appropriations.

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8.

Plaintiffs seek a declaratory judgment that the Defendants’ requirement that

“excepted” employees report to work without pay and continued imposition of restrictions on
outside employment during the current lapse in government appropriations violates Articles I
and II and the Fifth and Thirteenth Amendments of the United States Constitution; the Fair
Labor Standards Act; and the Anti-Deficiency Act.
9.

Plaintiffs seek nominal damages and all costs, fees, and expenses incurred as a

result of this action.
JURISDICTION AND VENUE
10.

This action is brought against the government of the United States of America,

and its agents, as Defendants under the Constitution and laws of the United States. This Court
therefore has jurisdiction pursuant to 28 U.S.C. §§ 1331, 1346.
11.

Plaintiffs’ claims for declaratory as well as permanent injunctive relief are

authorized by and subject to the jurisdiction of this Court under 28 U.S.C. §§ 2201, 2202.
12.

Venue is properly in this Court under 28 U.S.C. § 1391(e) because Defendants’

principal places of business are in the District of Columbia and a substantial part of the acts
giving rise to Plaintiffs’ claims occurred in the District.
13.

This Court has authority to award Plaintiffs their reasonable costs and attorneys’

fees pursuant to 28 U.S.C. § 2412.
PARTIES
14.

Plaintiff Jane Doe 1 is an employee of the U.S. Department of Transportation.

15.

Plaintiff Jane Doe 2 is an employee of the U.S. Department of Justice.

16.

Plaintiff Jane Doe 3 is an employee of the U.S. Department of Agriculture.

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17.

Plaintiff John Doe 1 is an employee of the U.S. Department of Justice.

18.

Plaintiff John Doe 2 is an employee of the U.S. Department of Homeland

Security.
19.

Defendants are the United States of America, appointed officials of the United

States government, and United States governmental agencies responsible for the administration,
enforcement, and implementation of policies related to the laws and constitutional provisions
that are the subject of this suit.
20.

Defendant U.S. Department of Transportation is an executive agency of the

United States government.
21.

Defendant U.S. Department of Justice is an executive agency of the United States

government.
22.

Defendant U.S. Department of Agriculture is an executive agency of the United

States government.
23.

Defendant U.S. Department of Homeland Security is an executive agency of the

United States government.
24.

Defendant Donald J. Trump is sued in his official capacity only as President of

the United States. In that capacity, Defendant Trump is responsible for the relevant actions by
the executive agencies of the United States government that are the subject of this suit.
25.

Defendant Elaine L. Chao is sued in her official capacity only as Secretary of the

U.S. Department of Transportation. In that capacity, Defendant Chao is responsible for the
relevant actions by the U.S. Department of Transportation that are the subject of this suit.

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26.

Defendant Matthew G. Whitaker is sued in his official capacity only as Acting

Attorney General of the U.S. Department of Justice. In that capacity, Defendant Whitaker is
responsible for the relevant actions by the U.S. Department of Justice that are the subject of this
suit.
27.

Defendant Sonny Perdue is sued in his official capacity only as Secretary of the

U.S. Department of Agriculture. In that capacity, Defendant Perdue is responsible for the
relevant actions by the U.S. Department of Agriculture that are the subject of this suit.
28.

Defendant Kirstjen M. Nielsen is sued in her official capacity only as Secretary of

the U.S. Department of Homeland Security. In that capacity, Defendant Nielsen is responsible
for the relevant actions by the U.S. Department of Homeland Security that are the subject of this
suit.
STATEMENT OF FACTS
29.

Beginning at 12:01 AM on December 22, 2018, Defendant United States of

America initiated a partial government shutdown due to a lapse in appropriations.
30.

The U.S. Department of Transportation; U.S. Department of Justice; U.S.

Department of Agriculture; and U.S. Department of Homeland Security, including their
constituent agencies, are among the executive agencies affected by the partial government
shutdown. On December 21-22, 2018, Defendants effected their government shutdown
procedures due to the lapse in government appropriations.
31.

As part of standard government shutdown procedures, Defendants designated all

employees in affected agencies as either Excepted Employees or Non-Excepted Employees.

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32.

Excepted Employees are required to report to work and perform their assigned

duties without compensation while the lapse in government appropriations continues. These
excepted employees are ordered to do so and therefore not volunteering their services without
pay.
33.

Non-Excepted Employees are placed in a furlough status, ordered to not report to

work or perform their assigned duties, and are not compensated while the lapse in government
appropriations continues.
34.

According to OPM guidance, Excepted Employees who refuse to report for duty

as ordered must be placed in an AWOL status.
35.

Employees placed in an AWOL status may be subject to discipline by the

Defendants up to and including removal from federal service.
36.

On or about December 21, 2018, Defendants identified Plaintiffs Jane Doe 1, Jane

Doe 2, Jane Joe 3, and John Doe 1 as Excepted Employees.
37.

On or about December 21, 2018, Defendants identified Plaintiff John Doe 2 as a

Non-Excepted Employee.
38.

Plaintiffs are each career, competitive service employees who may only be

removed from federal service for good cause.
39.

Plaintiffs maintain property interests in retaining their employment with the

Defendants, consistent with the Fifth Amendment to the Constitution.

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40.

Defendants cannot guarantee that Plaintiffs will receive compensation for work

performed during the lapse in government appropriations or when such lapse in appropriations
will end. The President of the United States stated on January 4, 2019, that this lapse in
appropriations could last for “months or even years.”
41.

Consistent with the Defendants’ orders, Plaintiffs Jane Doe 1, Jane Doe 2, Jane

Doe 3, and John Doe 1 have reported for work and performed their assigned duties without
compensation since the lapse in government appropriations began.
42.

Consistent with the Defendants’ orders, Plaintiff John Doe 2 is currently in a

furlough status, has not reported to work or performed his assigned duties.
43.

Consistent with the Defendants’ orders, all Plaintiffs have abstained from

obtaining outside employment.
COUNT I
Violation of the Thirteenth Amendment
44.

Plaintiffs incorporate paragraphs 1–43 herein.

45.

Plaintiffs Jane Doe 1, Jane Doe 2, Jane Doe 3, and John Doe 1 are required to

work without pay as a condition of their employment under threat of being placed in an absent
without leave (AWOL) status and threat of adverse action for such AWOL.
46.

If Plaintiffs refuse the Defendants’ orders to work without pay, they would be

subject to discipline up to and including removal from federal service.
47.

If Plaintiffs refuse the Defendants’ orders to work without pay, they could be

stripped of their property interest in continuing federal employment.
48.

Plaintiffs continue to work without pay only due to the possibility they would be

stripped of their property interests if they refused the Defendants’ unlawful orders.
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49.

Plaintiffs are therefore required to perform involuntary, unpaid service as a

prerequisite to maintaining their property interests.
50.

The Thirteenth Amendment prohibits the imposition of involuntary servitude on

any individual in the United States, except as a punishment for crime.
51.

Defendants’ requirement that Plaintiffs perform involuntary, unpaid service under

threat of deprivation of Plaintiffs’ property interests violates the Thirteenth Amendment’s
prohibition against involuntary servitude.
COUNT II
Violation of the Fifth Amendment
52.

Plaintiffs incorporate paragraphs 1–51 herein.

53.

Plaintiffs Jane Doe 1, Jane Doe 2, Jane Doe 3, and John Doe 1 are required to

work their otherwise normal duties and schedule during the current lapse in government
appropriations. Were they not obligated to provide uncompensated services to the Defendants
they would now, or in the future depending on the length of the shutdown, seek employment that
timely and lawfully paid them for their services.
54.

Under 5 C.F.R. Part 2635, employees of the Defendants may not obtain outside

employment without explicit authorization.
55.

Employees who violate the Defendants’ limitations on obtaining outside

employment may be subject to discipline up to and including removal from federal service.
56.

All Plaintiffs are currently subject to the Defendants’ prohibition against

obtaining outside employment without authorization.
57.

The constitutional justifications for permitting such restrictions on Plaintiffs’

ability to obtain outside employment are inoperative because Defendants are not currently
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paying for Plaintiffs’ services. With respect to John Doe 2, these justifications are further inapt
as he is furloughed and providing no services to Defendants.
58.

Plaintiffs maintain constitutionally protected liberty and property interests in

obtaining meaningful employment without arbitrary government interference.
59.

Defendants’ continued interdiction of Plaintiffs’ ability to obtain outside

employment, with no valid claim to Plaintiffs’ services during the lapse in government
appropriations, amounts to arbitrary government interference.
60.

Plaintiffs cannot be compelled to forego their property interest in continued

federal employment as a condition of asserting other constitutional rights.
61.

Defendants’ continued imposition of restrictions on Plaintiffs’ ability to obtain

outside employment, while having no valid claim to Plaintiffs’ services, violates Plaintiffs’ Fifth
Amendment protections from arbitrary government interference.
COUNT III
Violation of Article I and Article II of the United States Constitution
62.

Plaintiffs incorporate paragraphs 1–61 herein.

63.

Article 1, Section 8 of the U.S. Constitution reserves to Congress exclusively the

power to appropriate funds. Only Congress, and not the Executive, may obligate the expenditure
of public money. By designating certain federal employees as “excepted” under the AntiDeficiency Act and requiring them to perform federal services, the Executive is obligating the
payment of funds to these employees without an appropriation therefor.
64.

Denominating excepted employees as “volunteers” under the Anti-Deficiency Act

when Congress has elsewhere mandated that such employees be compensated is merely an
artifice that does not negate the Executive’s unlawful obligation of federal funds. To the extent
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that the Anti-Deficiency Act purports to authorize the Executive to accept “volunteer” services
of federal employees in “emergencies,” such an authorization would constitute an impermissible
delegation of Congress’s exclusive constitutional power of appropriation to the Executive.
65.

By designating certain employees as “excepted,” requiring them to work in the

absence of an appropriation covering those expenditures where Congress has otherwise
mandated that they be compensated for those services, the Executive has unlawfully usurped
Congress’s exclusive power of appropriation.
COUNT IV
Violation of the Fair Labor Standards Act
66.

Plaintiffs incorporate paragraphs 1–65 herein.

67.

Plaintiffs Jane Doe 1, Jane Doe 2, Jane Doe 3, and John Doe 1 are each subject to

ongoing orders by the Defendants that they must report to work without pay.
68.

Defendants’ requirement that Plaintiffs work without pay will continue until new

government appropriations are authorized.
69.

Defendants will not compensate Plaintiffs for work currently performed without

pay until new government appropriations are authorized.
70.

New government appropriations may only be authorized through the United

States Congress passing, and the President signing, legislation authorizing such.
71.

Defendants have no authority to guarantee that the lapse in government

appropriations will end, or that Plaintiffs will receive compensation for work performed without
pay during that lapse, because they have no authority to unilaterally end the lapse in government
appropriations.
72.

Requiring employees to work without pay violates the FLSA.
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73.

Defendants continue to violate the FLSA by requiring Excepted Employees,

including Plaintiffs Jane Doe 1, Jane Doe 2, Jane Doe 3, and John Doe 1, to report to work
without pay with no guarantee of when or how they will be compensated for this work without
pay.
COUNT V
Violation of the Anti-Deficiency Act - 31 U.S.C. § 1341
74.

Plaintiffs incorporate paragraphs 1–73 herein.

75.

31 U.S.C. § 1341 prohibits, inter alia, any officer or employee of the federal

government from “mak[ing] or authoriz[ing] an expenditure or obligation exceeding an amount
available in an appropriation or fund for the expenditure or obligation . . .”
76.

In requiring Plaintiffs Jane Doe 1, Jane Doe 2, Jane Doe 3, and John Doe 1 to

work without pay, Defendants made and will continue to make an obligation to compensate
Plaintiffs for work performed during the lapse in government appropriations under the FLSA.
77.

Due to the lapse in government appropriations, there is no current amount

available in an appropriation or fund for the obligation incurred to compensate Plaintiffs.
78.

Because Defendants lack authority to unilaterally enact additional appropriations,

there is no guarantee that Defendants will obtain the necessary appropriation or fund to meet its
obligations to pay Plaintiffs. Absent judicial execution, even Plaintiffs’ rights for recovery for
violation of the Fair Labor Standards Act are ultimately dependant on appropriations.
79.

Defendants’ ongoing actions of making and authorizing the creation of

obligations to pay Plaintiffs in excess of current appropriations and funds violates the AntiDeficiency Act’s prohibition against such conduct.

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COUNT VI
Violation of the Anti-Deficiency Act - 31 U.S.C. § 1342 (volunteer services)
80.

Plaintiffs incorporate paragraphs 1–80 herein.

81.

31 U.S.C. § 1342 provides that any “officer or employee of the United States

Government . . . may not accept voluntary services for [the U.S.] government or employ personal
services exceeding that authorized by law except for emergencies involving the safety of human
life or the protection of property.”
82.

Within the meaning of the Anti-Deficiency Act, “voluntary services” means

services performed willingly and without compensation.
83.

In requiring Plaintiffs to work without pay, Defendants are not accepting

“voluntary services” within the meaning of the Anti-Deficiency Act because (1) the Defendants
are obtaining Plaintiffs’ services through legal coercion; and (2) the Defendants are obligated to
eventually compensate Plaintiffs under the FLSA.
84.

During all times relevant to this complaint, Plaintiffs (with the exception of John

Doe 2) have performed ongoing, regular functions of government as part of their normal, routine
duties as federal employees.
85.

Defendants’ receipt of such services is not permitted under the Anti-Deficiency

Act, and therefore violates the Act.

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COUNT VII
Violation of the Anti-Deficiency Act - 31 U.S.C. § 1342 (emergency exception)
86.

Plaintiffs incorporate paragraphs 1–86 herein.

87.

In the alternative, if Defendants are accepting “volunteer services” from Plaintiffs

within the meaning of the Anti-Deficiency Act during the current lapse in government
appropriations, then 31 U.S.C. § 1342 further restricts the “emergencies” exception to “not
include ongoing, regular functions of government the suspension of which would not imminently
threaten the safety of human life or the protection of property.”
88.

During all times relevant to this complaint, Plaintiff Jane Doe 1 is an Air Traffic

Control Specialist who is currently assigned to training on compliance in air traffic facilities and
services.
89.

During all times relevant to this complaint, Plaintiff Jane Doe 1 has not been

tasked with duties related to the protection of human life or property.
90.

The Defendants’ decision to designate Plaintiff Jane Doe 1 as an “excepted”

employee resulted from the Defendants’ practice of not inquiring into the duties of specific
employees prior to invoking the emergency volunteer services exception under § 1342.
91.

The Defendants’ failure to conduct inquiries into the duties of specific employees

prior to invoking the emergency volunteer services exception under § 1342, and placing Plaintiff
Jane Doe 1 in a duty status as a result, violates the Anti-Deficiency Act.
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs requests that the Court award them:

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92.

A declaratory judgment finding that Defendants’ actions violate Articles I and II

and the Fifth and Thirteenth Amendments of the United States Constitution; the Fair Labor
Standards Act; and the Anti-Deficiency Act;
93.

A permanent injunction prohibiting the Defendants from (1) requiring employees

to report for duty without pay during the current lapse in government appropriations; (2) taking
any adverse action other than a furlough against employees who decline to report for duty
without pay during the current lapse in government appropriations; and (3) restricting
employees’ ability to obtain outside employment (or other form of compensation) during the
current lapse in government appropriations;
94.

Any nominal damages;

95.

Reasonable attorneys’ fees, costs, and expenses pursuant to 28 U.S.C. § 2412, and

any other applicable law; and
96.

Any such other and further relief as this Court should find just and proper.
Respectfully submitted,

Date: January 9, 2019

/s/ Daniel Clark.
Michael Kator, D.C. Bar No. 366936
Cathy A. Harris, D.C. Bar No. 467206
Daniel Clark, D.C. Bar No. 156052
KATOR, PARKS, WEISER & HARRIS, PLLC
1200 18th Street, N.W.
Suite 1000
Washington, DC 20036
Phone: [phone]
Fax: [phone]
[e-mail]
[e-mail]
[e-mail]
Attorneys for Plaintiffs

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