JAN BURGESS, and all 2,959 individuals identified in the Burgess FTCA Administrative Complaint v. UNITED STATES OF AMERICA

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
In re FTCA Flint Water Cases,
Case No. 17-cv-11218
_________________________/ 	(Consolidated)
This Order Relates to:
All Cases 	Honorable Linda V. Parker
________________________________/
OPINION AND ORDER DENYING UNITED STATES OF AMERICA’S
MOTION TO STAY (ECF NO. 358)
This matter, which has been pending for more than eight and a half years, is
before the Court on the United States of America’s motion to stay in light of the
lapse in appropriations, which precipitated a federal government shutdown starting
on October 1, 2025. (ECF No. 358.) Plaintiffs oppose the motion. (ECF No.
359.)
In support of its motion, the United States of America (hereafter
“Government”) cites 31 U.S.C. § 1341, which provides in relevant part that “[a]n
officer or employee of the United States Government . . . may not accept voluntary
services . . . or employ personal services exceeding that authorized by law except
for emergencies involving the safety of human life or the protection of property.”
The Sixth Circuit has noted that government attorneys whose work is not
authorized on an “emergency” basis are generally not allowed to work during a
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lapse in appropriations. See United States v. Trevino, 7 F.4th 414, 421 n.6 (6th Cir.
2021) (citing 31 U.S.C. § 3142) (“The prosecution cannot continue without
expenditures. The Anti-Deficiency Act prohibits any government official from
carrying out the prosecution on an unpaid, volunteer basis.”). However, other
Circuit Courts have denied stays based on a lapse in appropriations, reasoning that
labor by government counsel “authorized by law” is permitted, such as when a
federal court denies a motion to stay and orders government counsel to proceed
with the prosecution or defense of the lawsuit. See, e.g., People for the Ethical
Treatment of Animals v. USDA, 912 F.3d 641 (D.C. Cir. 2019); Air Transp. Ass’n
of Am., Inc. v. FAA, 912 F.3d 642 (D.C. Cir. 2019).
The United States Department of Justice’s “contingency plan” for the
shutdown recognizes this provision. The plan instructs litigators, generally, to seek
a stay “until funding is available.” The plan further provides that “[i]f a court
denies such a request and orders a case to continue, the Government will comply
with the court’s order, which would constitute express legal authorization for the
activity to continue.” Id.
This Court, like all federal courts, has an obligation to carry out its Article
III constitutional functions (i.e., resolving cases in which there is a constitutional or
statutory grant of jurisdiction). In most circumstances, the Court cannot carry out
its constitutional duties with only one side’s participation. For the reasons
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discussed above, the Court sees no reason why the lapse in appropriations should
preclude the Government’s participation in this matter.
Accordingly,
IT IS ORDERED that the Government’s motion to stay (ECF No. 358) is
DENIED.
s/ Linda V. Parker
LINDA V. PARKER
U.S. DISTRICT JUDGE
Dated: October 20, 2025
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