United States: For Civil Litigants, Confusion About The Effect Of The Federal Government Shutdown

Last Updated: January 17 2019
Article by Rebecca Woods, Esther Slater McDonald and Connor M. Bateman

On Monday, as the partial government shutdown entered its third week, the Administrative Office of the U.S. Courts ("AOC") announced its intention to continue paid operations through January 18, extending its previous estimate by one week. To sustain operations, courts will utilize fee balances and other funds that are not dependent on a new appropriation. Courts have also been directed to delay certain "non-mission critical expenses," such as travel and new hires, in order to further defray costs. Should the current budget crisis continue beyond January 18, however, courts will operate under the terms of the Anti-Deficiency Act, which allows the courts to conduct "essential" work during the lapse in appropriations. 

The question for civil litigants is what "essential" means for their matters. (For those involved in litigation with the federal government, there is likely a significant impact because many Department of Justice employees are furloughed. A number of courts, for instance, have stayed civil cases involving the U.S. Government that do not jeopardize life or property, citing the furlough of Justice Department attorneys.) There is guidance from an AOC memorandum issued just before the 16-day shutdown in 2013 as to what "essential" work means, but a reader would be forgiven for being confused. On the one hand, the memorandum advises that under the Anti-Deficiency Act, "essential work" is "interpreted very narrowly" and that "a limited number of employees would be called upon to perform essential work, while all others would be furloughed."  

On the other hand, the lodestar for "essential work" for judicial purposes is "[a]ctivities necessary to support the exercise of the Article III judicial power," and the potential activities allowed under that statement are broad: In defining "essential work," the AOC's Guide to Judiciary Policy states that: judges may "employ staff, such as law clerks and secretaries, and utilize court reporters, who are not part of the judge's staff, which in the court's opinion are essential to the resolution of cases";"[c]onferences, hearings, jury trials, non-jury trials, and appellate arguments [would] continue to be conducted, and new cases [would] be accepted"; "[n]ew cases, including both civil and criminal, will be accepted and processed in the normal manner"; and "the proper and timely processing of all filings, motions, orders, emergency applications, and other litigation documents" will be permissible. Finally, the guide provides that "routine judicial activities performed by magistrate judges, from the conduct of preliminary hearings to the exercise of delegated trial authority, will continue" during the shutdown. Following these directives, in the 2013 shutdown, dozens of courts issued orders declaring virtually all employees essential to the exercise of Article III powers.

Adding to the confusion about just what aspects of civil litigation would be affected by the shutdown, the AOC advised that they "do not provide specific guidance as to exactly which functions should be considered essential because [that] is the prerogative of each court . . . ." We thus expect a patchwork of evolving approaches that will affect civil litigants, which will be driven both by practical and human factors. On the practical side, the judiciary's landlord, the General Services Administration, is affected by the shutdown and basic building needs may preclude judicial employees from working even if they were otherwise deemed essential. 

The human element is considerably more variable. Everyone but judges who is deemed essential will work without pay. So far, courts appear intent on continuing near-normal operations. James Hatten, the District Court Executive for the Northern District of Georgia, stated that the court would "remain open, . . . continue to accept cases[,] and continue to have court proceedings and trials[.]" Hatten also expected clerks, security personnel, court reporters, and support staff to continue working, although they could not be paid until the shutdown is resolved. Judge Patricia A. Gaughan of the U.S. District Court for the Northern District of Ohio made a similar prediction, stating that some employees would likely be asked to report to work without pay until the shutdown ends. Echoing the sentiments expressed by judges during the 2013 shutdown, Judge Gaughan noted that "[a]ll employees, just by virtue of them being employed by the federal court, may be deemed essential . . . ."  

But history is no teacher for how courts will handle this shutdown if it is not resolved today. The longest prior shutdown was 21 days (December 1995 to January 1996), and January 11, 2019 is the 21st day of the present shutdown. With many cases on dockets stayed because they involve furloughed government lawyers, some civil litigants could see more movement on their cases. As the shutdown extends and unpaid employee morale continues to sink, however, we may see emerging delays on civil cases because the courts may need to prioritize criminal cases and certain federal employees may resign, creating staffing problems.

So what to do next?

Civil litigants who have not yet filed cases and who are nearing an expiration of a statute of limitation (or other time bar) may want to consider getting tolling agreements in place or filing lawsuits soon in the unlikely, but possibly dire, event that new cases stop being processed. Civil litigants in a hurry for a resolution may want to inquire whether the other party(ies) would consent to shifting the venue to private arbitration.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions