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Kormtzky Group, LLC v. Elwell

United States Court of Appeals, District of Columbia Circuit

January 9, 2019

Kormtzky Group, LLC, d/b/a AeroBearings, LLC, PETITIONER
v.
DANIEL K. ELWELL, ACTING ADMINISTRATOR, FEDERAL AVIATION ADMINISTRATION AND NATIONAL TRANSPORTATION SAFETY BOARD, RESPONDENTS

          On Motion for Stay of Oral Argument Due to Lapse in Appropriations and Motion for Expedited Consideration

          Before: Srimvasan [*] , Circuit Judge, and Edwards and Randolph [**] Senior Circuit Judges

          ORDER

          PER CURIAM

         Upon consideration of the motion of respondent FAA for stay of oral argument due to lapse in appropriations, and the opposition thereto, and the motion of petitioner for expedited consideration, it is

         ORDERED that the motion for stay of oral argument be denied. It is

         FURTHER ORDERED that the motion for expedited consideration be dismissed as moot.

          Srinivasan, Circuit Judge, and Edwards, Senior Circuit Judge, concurring in the denial of the motion

         The Antideficiency Act provides that "[a]n officer or employee of the United States Government or of the District of Columbia government may not accept voluntary services for either government or employ personal services exceeding that authorized by law except for emergencies involving the safety of human life or the protection of property." 31 U.S.C. § 1342.

         The Department of Justice has issued a contingency plan setting forth the Department's planned operations during a lapse in appropriations in Fiscal Year 2019. U.S. Dep't of Justice, FY 2019 Contingency Plan (Sept. 11, 2018), https://www.justice.gov/jmd/page/file/1015676/download. The Department's plan "assumes that the Judicial Branch will continue to operate through the furlough." Id. at 3. For civil litigation, the Department instructs government attorneys to request that active cases be postponed until funding is available. Id. If a court denies the request and adheres to its existing schedule, "the Government will comply with the court's order, which would constitute express legal authorization for the activity to continue" within the meaning of 8 1342. Id. That understanding of the statute presumably governs the Federal Aviation Administration's participation in this case. Petitioner, for its part, wishes to continue with oral argument as scheduled. There is thus no dispute that conducting argument as scheduled is consistent with § 1342.

         Our disposition of this motion is perfectly consistent with this court's application of § 1342 in prior cases. For example, when federal appropriations lapsed in 2013, resulting in a "shutdown" from October 1 to October 17, 2013, the court received Government motions to stay oral argument in at least sixteen cases. Every one of these motions was denied; and every time, the Government then participated in oral argument. See Order, Wilson v. Cox, No. 12-5070 (D.C. Cir. Oct. 16, 2013); Order, Am. Tort Reform Ass'n v. OSHA, Ko. 12-1229 (D.C. Cir. Oct. 9, 2013); Order, Janko v. Gates, No. 12-5017 (D.C. Cir. Oct. 9, 2013); Order, Mittleman v. Postal Regulatory Comm'n, No. 12-1095 (D.C. Cir. Oct. 9, 2013); Order, Roane v. Leonhart, No. 12-5020 (D.C. Cir. Oct. 9, 2013); Order, United States v. Regenerative Sciences, LLC, No. 12-5254 (D.C. Cir. Oct. 9, 2013); Order, Aamer v. Obama, No. 13-5223 (D.C. Cir. Oct. 8, 2013); Order, Daimler Trucks N. Am. LLC v. EPA, No. 12-1433 (D.C. Cir. Oct. 8, 2013); Order, Howard RL. Cook & Tommy Shaw Found. for Black Emps. of the Library of Cong. v. Billington, No. 12-5193 (D.C. Cir. Oct. 7, 2013); Order, Nat. Res. Def Council v. EPA, No. 10-1371 (D.C. Cir. Oct. 3, 2013); Order, Ctr. for Biological Diversity v. EPA, No. 12-1238 (D.C. Cir. Oct. 2, 2013); Order, Pub. Emps. for Envtl. Responsibility v. U.S. Section, Int'l Boundary & Water Comm'n, US-Mex., No. 12-5158 (D.C. Cir. Oct. 2, 2013); Order, Sledge v. Fed. Bureau of Prisons, No. 12-5287 (D.C. Cir. Oct. 2, 2013); Order, Town of Barnstable, Mass. v. FAA, No. 12-1362 (D.C. Cir. Oct. 2, 2013); Order, Adirondack Med. Ctr. v. Sebelius, No. 12-5366 (D.C. Cir. Oct. 1, 2013); Order, McKinley v. Fed. Hous. Fin. Agency, No. 12-5267 (D.C. Cir. Oct. 1, 2013).

         In every one of these motions, Government counsel specifically cited the statute at issue here, 31 U.S.C. § 1342. See, e.g., Appellees' Unopposed Motion to Postpone Oral Argument in Light of Lapse of Appropriations at 2, Wilson v. Cox, No. 12-5070 (D.C. Cir. Oct. 15, 2013); Unopposed Motion for a Stay of Oral Argument in Light of Lapse of Appropriations at 1-2, Ctr. for Biological Diversity v. EPA, No. 12-1238 (D.C. Cir. Oct. 1, 2013); Federal Appellee's Motion to Postpone Oral Argument in Light of Lapse of Appropriations at 1-2, McKinley v. Fed. Hous. Fin. Agency, No. 12-5267 (D.C. Cir. Oct. 1, 2013); Appellee's Motion to Postpone Oral Argument in Light of Lapse of Appropriations at 1-2, Pub. Emps. for Envtl. Responsibility v. U.S. Section, Int'l Boundary & Water Comm'n, U.S-Mex., No. 12-5158 (D.C. Cir. Oct. 1, 2013). So far as we have been able to determine, not a single motion seeking a stay was granted during the 2013 shutdown.

         Finally, during the current Government shutdown, our practice has been the same. See, e.g., Order, Leader Commc'ns, Inc. v. FAA, No. 18-1147 (D.C. Cir. Jan. 7, 2019) (denying motion to stay briefing); Order, Figueroa v. Pompeo, No. 18-5064 (D.C. Cir. Jan. 3, 2019) (denying motion to stay oral argument).

         The dissent cites an order issued in Estate of Klieman v. Palestinian Authority in support of its position regarding the meaning of 31 U.S.C. § 1342. See Order, Estate of Klieman v. Palestinian Auth., No. 15-7034 (D.C. Cir. Jan. 3, 2019). The order in that case is inapposite. Klieman is a case in which the Government is not a party. The Government's motion in Klieman was to extend the time to file an amicus brief that the court had invited sua sponte. The Government was not even required to respond to the invitation (and unlike in this case, neither of the litigants opposed the Government's motion). Hence, the Klieman order is not a precedent for how panels should respond to motions in cases in which the Government is a party and is compelled by the court to ...


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