On January 31, 2019, U.S. District Court Judge Richard J. Leon held a status conference on the shutdown lawsuit filed by NATCA, as well as the shutdown lawsuits filed by another federal-sector labor union and a separate group of federal employees, in the U.S. District Court for the District of Columbia. Due to the reopening of the federal government since Judge Leon's previous hearing in the lawsuits on January 15 and the payment of some compensation to NATCA's members and the other suits' plaintiffs during the week leading up to the January 31 conference, Judge Leon did not consider the motions for preliminary injunctions that had been filed by the plaintiffs during the shutdown.
During the January 31 conference, however, Judge Leon established a new and expedited briefing schedule for those preliminary injunction motions in the event that the government experiences another shutdown on February 15. That new schedule requires the plaintiffs to submit their preliminary injunction motions on February 19, the government to submit its responses on February 21, and the parties to convene for a hearing on the motions on February 22, which would be the first day on which federal employees may not receive their full pay during the new shutdown. Should another government shutdown occur, NATCA will provide additional updates to its members about the court's consideration of its claim that the government violates the Fifth Amendment when it deprives pay from excepted NATCA members who work during a shutdown without due process. All NATCA members who worked during the shutdown are covered by this claim and there is no opt-in requirement.
In the meantime, the claims under the Fair Labor Standards Act ("FLSA") seeking compensation for excepted NATCA members who worked during the shutdown are moving forward. Those claims seek liquidated damages for the government's failure to pay at least the minimum wage to affected NATCA members as well as liquidated damages for any overtime work performed by excepted NATCA members. All excepted NATCA members who are covered by the FLSA should have received an informational letter about the FLSA claims in the lawsuit as well as a double-sided opt-in form which needs to be completed in full and returned to the outside law firm handling the case (Woodley and McGillivary, Attn: Keith Nickerson, 1101 Vermont Avenue N.W., Suite 1000, Washington, D.C. 20005). Copies of the letter and form can also be accessed from the NATCA website. Members can print copies of the form and mail it in even if they have not received the letter. There is no deadline to opt-in to the case as of now. The court will set the deadline as the litigation moves forward, however we would like members to send in their forms as soon as possible.
Several common questions have been received about the process for joining the lawsuit and/or eligibility for recovery. The following responses are intended to provide general guidance to these common questions:
First, NATCA members are required to submit their Social Security Numbers in order to join the suit. The Social Security Number is required in order to process payment of any potential recovery.
Second, Staff Support Specialists occupy a position which is usually not covered by the FLSA, however, NATCA is aware that some Staff Support Specialists were required to perform a higher than normal amount of active air traffic control duties due to staffing deficiencies during the shutdown. The law firm handling the FLSA claims has advised that there are certain exceptions and occasions when work performed in such situations would be covered by the FLSA. As a result, any Staff Support Specialists who spent a larger percentage of time than normal performing active air traffic control during the shutdown may be eligible for recovery on the FLSA claims and can submit their forms to join the lawsuit (with any ultimate recovery subject to the findings of the court).
Third, NATCA is aware that several other law firms and plaintiffs' groups have initiated FLSA lawsuits over the shutdown. NATCA members should join the NATCA lawsuit, and they may only participate in a single lawsuit. NATCA is covering the out-of-pocket costs for the lawsuit, and the attorneys handling the case will receive a contingent fee determined by the recovery. In addition, NATCA anticipates that its suit will be able to proceed faster than the other suits as the represented group is limited to NATCA members, and NATCA is providing for the required distribution of notice to its members rather than relying on the government for distribution of that notice.
NATCA will continue to keep members updated as developments in this litigation occur.
If you have any questions regarding the lawsuit not addressed by this e-mail, please e-mail us at