January 30, 2023
On November 30, 2022, a three-judge panel from the U.S. Court of Appeals for the Federal Circuit issued a decision reversing our underlying
victory at the U.S. Court of Federal Claims. The decision was 2-1 against us, and the judge who voted in our favor wrote a well-reasoned
dissenting opinion explaining why he believed we should have won. We have asked the Federal Circuit to re-hear the case en banc, meaning
that all of the judges on the court would have an opportunity to vote on the outcome of the case. The Court invited the Government to submit
its response by February 2, 2023.
September 15, 2022
On December 1, 2020, Judge Campbell-Smith denied the Government’s motion to dismiss and its claim that it did not have an obligation to
pay employees because of the Anti-Deficiency Act. Judge Campbell-Smith will not rule on whether the employees are entitled to liquidated
damages until after discovery is completed. However, Judge Campbell-Smith previously ruled in connection with the 2013 shutdown that the
government did not act in good faith and was liable for liquidated damages as a result of its failure to pay employees on their regularly
scheduled pay day for work performed during the October 2013 partial government shutdown. We are optimistic she would reach the same
The Government appealed the Judge’s decision to the U.S. Court of Appeals for the Federal Circuit (“Federal Circuit”), and the Judge stayed
the case proceedings pending the outcome of the appeal. We filed our brief in opposition to the Government’s appeal October 28, 2021. Both
briefs are available here
. After the Government files
its reply brief, the Federal Circuit will schedule the case for oral argument before a
three-judge panel. The Federal Court has identified our cases arising out of the October 2013 partial government shutdown, Martin v. U.S.,
Case No. 2021-2255 and Marrs v. U.S., Case No. 2018-1354, as companion cases that will be heard by the same panel on the same day as Tarovisky
and the other cases consolidated with it. The briefing in all of the cases is complete and the court held the oral arguments on July 6, 2022.
The briefing in Martin and Marrs are
. We are waiting for the Federal Circuit’s
decision on the Government’s appeal.
While the appeal is pending, we are still permitted to file new opt-in forms. However, the normal statute of limitations for a Fair Labor
Standards Act (“FLSA”) claim is two years from the date of the incorrect paycheck or three years if the violation is willful. While it
has been over three years since the shutdown ended, it is possible that the judge will equitably toll the statute of limitations so that
the deadline to file paperwork to join the case will be extended past the two or three year period. That motion has been stayed pending
the outcome of the appeal to the Federal Circuit. Thus, while we cannot guarantee that the judge will extend the deadline for additional
individuals to join the case, we encourage everyone who has not yet completed sign-up forms to join the case to do so immediately.