Courts wade through post-shutdown backlog of cases

The government is fully reopened, but the effects of the partial shutdown will be felt for months in the federal judiciary as courts across the country play catch-up.

Without money to pay its attorneys during the 35-day funding lapse, the Department of Justice (DOJ) successfully convinced judges to put a number of cases on hold or push back filing deadlines.

{mosads}Among those delayed were court briefings in a high-profile challenge to the Trump administration’s decision to deny migrants asylum if they cross the border illegally and litigation over the Affordable Care Act.

Lawrence Leiser, president of the National Association of Assistant United States Attorneys, said the shutdown had the biggest impact on civil lawsuits since most of the federal prosecutors handling those cases were among the 380,000 government workers furloughed.

“As far as criminal assistant U.S. attorneys were concerned, they were all in the office and deemed to be essential,” he said.

About 420,000 federal employees worked through the shutdown, which began Dec. 22 and ended Jan. 25.

Advocates, however, argue that justice delayed is justice denied.

Protect Democracy criticized stalled action during the shutdown involving its legal challenge against Matthew Whitaker’s appointment as acting attorney general.

Judge Randolph Moss, who’s overseeing the case in the U.S. District Court for the District of Columbia, denied the Justice Department’s request for a stay, but agreed during the shutdown to give the government more time to respond to the complaint. That brief, initially scheduled for Jan. 25, is now due
Feb. 14.

Ian Bassin, executive director of Project Democracy, argued that the president is not constitutionally permitted to hinder, delay or imperil the courts from serving as a check on the executive branch by shutting down the government.

“The president should not be able to violate the Constitution and then avoid accountability in the courts by shutting down the ability of the courts or DOJ to litigate the case,” he told The Hill.

With money now available to keep the government open through at least Feb. 15, judges have started to lift the stays they issued. But cases don’t immediately pick up where they left off.

In lawsuits challenging the Affordable Care Act, the Justice Department asked the U.S. Court of Appeals for the 5th Circuit on Monday to resume proceedings and reset the 10-day deadline the court had given the government to respond to the House Democrats’ motion to intervene in the case.

Moss, who is also overseeing one of the challenges to the administration’s asylum policy, ordered the parties in that case to meet and submit a joint status report by Friday that includes a proposed briefing schedule, which takes into account the duration of the lapse in appropriations.

{mosads}The shutdown has also had a major impact on immigration courts, which are controlled by the Justice Department, not the Administrative Office of the U.S. Courts.

As of Jan. 11, the Transactional Records Access Clearinghouse at Syracuse University found that 42,726 immigration court hearings had been canceled as a result of the shutdown, adding to the 809,041 active cases already backlogged.

During the shutdown, it was largely up to individual judges to decide whether to hit pause on certain proceedings. Federal courts remained open by using money collected in court fees, but all hiring, non-case-related travel and training was halted in an effort to save money.

A spokesperson from the Administrative Office of the U.S. Courts said the judiciary relied on court filing fees and funding from multiyear appropriations to pay its employees during the partial government shutdown. The spokesperson did not answer questions about how much was in the reserve fund for courts or how much was spent.

“It would have run out of those funds on Feb. 1 if the shutdown had continued,” the spokesperson said.

Chief Judge Michael Reagan of the U.S. District Court for the Southern District of Illinois told The Associated Press that if the shutdown had extended into February, the court might have had to place a moratorium on civil trials.

Chief Judge Mark Davis of the U.S. District Court for the Eastern District of Virginia said in a standing order last week that the court would suspend certain activities in the absence of funding.

Richard Banke, a division manager in the Virginia clerk’s office, said those activities would have included things like budgeting and procurement, human resources and some information technology functions. But he noted no operations were suspended.

“Civil litigation is already infamously slow and drawn out,” said Jennifer Stepp Breen, an administrative and constitutional law professor at Syracuse University. “This adds to that when government attorneys aren’t able to do their work.”