Federal courts limit operations as funding lapse continues

By Brett Rowland
The Center Square

As a partial federal government shutdown enters its third week, federal courts said they would limit unfunded operations across the judiciary, possibly delaying some cases.

“The judicial branch announced that beginning on Monday, Oct. 20, it will no longer have funding to sustain full, paid operations,” according to a statement from the federal courts. “Until the ongoing lapse in government funding is resolved, federal courts will maintain limited operations necessary to perform the Judiciary’s constitutional functions.”

Judges will continue to take the bench, but court staff will only perform certain excepted activities permitted under the Anti-Deficiency Act. That includes activities necessary to perform constitutional functions under Article III, activities necessary for the safety of human life and protection of property, and activities otherwise authorized by federal law.

“Excepted work will be performed without pay during the funding lapse. Staff members not performing excepted work will be placed on furlough,” according to the notice.

Each court will make its own decisions on operations.

“Each appellate, district, and bankruptcy court will make operational decisions regarding how its cases and probation and pretrial supervision will be conducted during the funding lapse,” according to the notice. “Each court and federal defender’s office will determine the staffing resources necessary to support such work.”

The partial government shutdown began Oct. 1. The federal judiciary continued paid operations through Oct. 17.

The United States District Court for the Northern District of Illinois entered Phase 2 of its shutdown plan over the weekend. Most civil trials are on pause, but some court activities will continue, Chief Judge Virginia M. Kendall said. During Phase 2, employees will not receive salary payments.

“The Clerk’s Office and Court define excepted activities as any activity necessary to exercise the Court’s constitutional functions, any activity that addresses emergency or potential emergent circumstances, activity that protects constitutional guarantees, or activity that provides necessary services for judges and staff performing this excepted work,” according to the memo. “The Clerk’s Office is staffed at 78% of authorized levels, and all staff will be assigned to perform excepted activities during the shutdown.”

Kendall said the shutdown could delay justice.

“I am concerned that the lack of appropriation will create delays in the Court’s ability to ensure timely justice,” Kendall said in a statement. “Furthermore, the dedicated public servants, who allow those who seek redress prompt access to Court, are now feeling the pain of their paychecks being suspended and facing difficult financial decisions to keep their families afloat because of the shutdown.”

Since Phase 1, all civil litigation involving the United States of America as a party has been impacted. The lapse in appropriations required a reduction in the workforce of the United States Attorney’s Office and other federal agencies, particularly with respect to prosecution and defense of civil cases. The Court entered an order staying all deadlines in all civil cases involving the United States as a party, with limited exceptions.

On Oct. 15, the Administrative Office of the United States Courts notified all courts that they have sufficient funds to continue to pay petit and grand jurors. All trials and grand jury sessions will continue as scheduled until such time as the AO determines that fees for jurors have been exhausted, according to Kendall’s memo.

Both parties in Congress have blamed each other for failing to pass a spending bill before money ran out.