Federal Courts Stay Open While Preparing for Shutdown Limits (1)

Federal courts are bracing for slower dockets and to cut back on administrative work if the judiciary runs out of funds during the ongoing government shutdown.

Courts throughout the US say that they’ll move forward with operations during the shutdown. But if the judiciary were to exhaust its funds, employees will be going without pay and court duties may be even further narrowed.

Court calendars may also slow down, as the Justice Department asks to pause certain civil cases while lawyers are furloughed.

Chief US District Judge Terry Doughty of the Western District of Louisiana said his court, like others, will have a two-phase plan. The first, taking place during the first days of the shutdown, will see the court operate as usual as it relies on funds from the previous fiscal year, which ended Tuesday.

“When the money runs out, phase two, that’s when it gets serious,” Doughty said. He said court services will narrow down to only those that are constitutionally required.

Judge Robert Conrad, a top judiciary official, said in a memo Wednesday that court staff would be fully paid until Oct. 17, at which point the judiciary is projected to run out of available funds if the shutdown continues.

Conrad had previously told employees that funds could be exhausted as soon as Friday, just two days after a lapse in federal appropriations after lawmakers failed to reach a deal on spending legislation before the end of the fiscal year.

In the event of a courts funding lapse, criminal cases, in which defendants have certain constitutional rights, will be prioritized.

Doughty said he has a two-week jury trial that’s supposed to start Monday. He said the court feels comfortable about paying jurors for the first week, but is concerned about making those payments during the second. He said he doesn’t want to have to break the trial up in two parts, or have to start it over.

Federal judges are still paid even if the courts run out of funds, as the Constitution blocks their salaries from being docked. Court staff who help judges carry out their core constitutional duties are considered essential staff, and may have to work without pay. Other employees could be furloughed if the judiciary runs out of funds.

“Our employees are going to have to work without a paycheck starting in about two weeks,” said Chief US District Judge Randy Crane of the Southern District of Texas. “But hopefully it doesn’t last that long.”

Training, maintenance, and other projects considered less essential may also be put on hold. And functions within the federal courts’ support agencies, such as its administrative office and research center, may also shut down, said Russell Wheeler of the Brookings Institution who worked at the Federal Judicial Center during an earlier shutdown.

Still, the federal court system is decentralized, and much of the impact will also vary by federal court. Each court and federal defender’s office would determine its own staffing resources needed to support core work.

The Supreme Court “will rely on permanent funds not subject to annual approval, as it has in the past, to maintain operations through the duration of short-term lapses of annual appropriations,” a spokesperson said.

Shutdown Procedures

The Northern District of Texas in a thorough order Wednesday said it would continue to “hear and decide cases without interruption,” as well as file and process orders and motions. But the court will suspend hiring new staff, purchasing supplies, non-case related travel, and supporting programs like naturalization ceremonies.

The US Court of Appeals for the Fifth Circuit is moving forward with arguments scheduled for next week. The circuit is relying on a 2023 order, which says that “some court services will be delayed, but the court will continue to operate consistent with its constitutional mandate.”

At least two federal district courts—the Northern District of Illinois and the Eastern District of Kentucky—are pausing civil cases in which the federal government is a party, while the Washington federal court is extending certain filing deadlines for the federal government.

Other courts said cases would proceed as planned, at least for now, with the onus on government lawyers to request delays if they are furloughed. Several notices previewed additional guidance if and when the judiciary runs out of money.

The Justice Department said in a shutdown planning memo that while criminal litigation will continue “without interruption,” litigators will ask the courts to postpone active civil cases until funding is restored, except in cases involving the safety of human life or protection of property.

If a court denies that request, the department will limit its civil litigation staffing “to the minimum level” to comply with the order and continue the case.

The judiciary has historically been exempted from shutdowns, in part due to due process rights of litigants and criminal defendants’ speedy trial rights, Charles G. Geyh, a professor at Indiana University’s law school and former special counsel for the Administrative Office of U.S. Courts, said in an email.

The last time the federal judiciary furloughed staff during a lapse in federal funding was 30 years ago during the shutdowns over the fiscal 1996 spending legislation.

Most of the staff at the court’s administrative office and research agency were furloughed during the November 1995 shutdown while some employees were furloughed “on a limited basis” during a second shutdown that began the following month, according to the Congressional Research Service.

The federal courts managed to continue paid operations during more recent shutdowns, including during a five-week one that began in late 2018 during the first Trump administration.

Judge Robert Conrad, director of the Administrative Office of the US Courts, acknowledged in a Sept. 24 memo that the courts’ current financial status represents a “very sharp change” from those past years.