Federal Courts Remain Open During Government Shutdown
The federal court system will remain open – for a bit, anyway – in spite of the government shutdown, with cases being processed more slowly and access to justice being harmed.
“In the event of a government shutdown on October 1, 2013, the federal Judiciary will remain open for business for approximately 10 business days,” according to a statement from the Administrative Office of the U.S. Courts.
“On or around October 15, 2013, the Judiciary will reassess its situation and provide further guidance,” says the statement. “All proceedings and deadlines remain in effect as scheduled, unless otherwise advised.”
The U.S. Supreme Court, whose new term is supposed to begin on Monday, Oct. 7, is being more circumspect. “In the event of a lapse of appropriations, the Court will continue to conduct its normal operations through October 4,” according to a statement on its website.
“The Court building will be open to the public during its usual hours,” the statement continues. “Further notice will be provided in the event a lapse of appropriations continues beyond October 4.”
Life and Property at Stake
The U.S. Department of Justice, which is responsible for prosecuting criminal cases in the federal courts, also released a FY 2014 Contingency Plan, indicating that its U.S. Attorneys would continue to do business in cases that involve dangers to life or property.
“Criminal litigation will continue without interruption as an excepted activity to maintain the safety of human life and the protection of property,” says the DOJ.
Civil litigation will be curtailed or postponed to the extent this can be done without compromising to a significant degree the safety of human life or the protection of property.”
“If a court denies a litigator’s request to postpone a case and orders it to continue, the litigation will become an excepted activity that can continue during the lapse,” according to the DOJ.
Deficient Is Right
Under the law that restricts government funding in the absence of a budget (the Anti-Deficiency Act), an exception exists for that kind of “essential work” to continue during a lapse in appropriations, explains Praveen Fernandes, director of Federal Affairs & Diversity Initiatives with Justice at Stake.
Because a high percentage of DOJ employees deal with protecting human life and property, most of its activities are excepted and for that reason will continue during an appropriations lapse.
But decisions about what constitutes “essential work” could produce different results around the country. In the past, says Fernandes, it has been interpreted for the judiciary to mean deciding federal cases and taking emergency actions to maintain safety of life and protection of property.
“For the most part, each federal court will largely be given the flexibility to make such determinations for itself,” Fernandes explains. “The meaning of such broad phrases is not self-evident, and there will be some significant differences in how those phrases are interpreted across the federal courts in our country.”
Access to Justice Harmed
While Fernandes says it’s unlikely the federal judiciary will shut down, “as employees are furloughed and case backlogs mount, access to justice will be harmed. Cases are going to take longer to be decided, particularly in the civil system.”
One particular area that will feel the pinch could be the immigration system, in which requests for asylum are made. “Since immigration is within the civil, not criminal system, there is no right to a lawyer,” Fernandes says. “In addition, with furloughs, court systems might be furloughing language interpreters, which might be deemed ‘nonessential.’”
“Thus, you have the possibility of individuals trying to serve as their own lawyer and trying to navigate a legal system in a language that is not even their own,” he continues. “In asylum cases, these individuals might be doing all of this against the backdrop of a possible return to a country in which they might face physical harm and political persecution.”
It’s All Connected
And while it’s possible that Congress could agree to keep some government offices funded during the impasse, “this seems impossible in the current toxic political environment,” Fernandes observes.
“The truth is that even if the federal courts were somehow excepted from the shutdown, justice would still be harmed,” he says. “The courts do not operate in a vacuum, [depending] on other federal agencies and departments, such as the Social Security Administration, the Department of Justice, etc., in order to do their work properly and effectively.”
Two examples given by Fernandes illustrate the interconnectedness of all federal agencies: Appealing a denial of disability benefits in federal court would depend on exhausting administrative appeals at the Social Security Administration.
“As just another example,” he adds, “the courts rely on Department of Justice lawyers to argue antitrust cases and civil rights cases; these cases cannot proceed in a timely fashion without government lawyers and paralegal staff.”