On March 10, 2023, the U.S. Court of Appeals for the Federal Circuit denied our request to re-hear the case en banc. We plan to request an extension of time to file a Petition for Writ of Certiorari, which is currently due on June 8, 2023, while we continue to coordinate with experienced U.S. Supreme Court practitioners who could assist us in presenting the case there.

Please note: Starting on May 27, 2023, lead counsel in the case, Heidi Burakiewicz and Robert DePriest, will be practicing with a new firm, Burakiewicz & DePriest, PLLC. The original named plaintiffs, Justin Tarovisky, Grayson Sharp, and Sandra Parr, have elected to transfer the case to their new firm. Heidi and Robert’s contact information will be:

Heidi R. Burakiewicz
Robert DePriest
Burakiewicz & DePriest, PLLC
hburakiewicz@bdlawdc.com
rdepriest@bdlawdc.com


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 conclusion here.

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 available here. 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.