The federal courts are set to run out of cash on Friday, likely meaning nonessential workers at the 94 federal district courts, and at higher courts across the country, may have to stay home even as skeleton crews show up — without pay — to handle matters deemed essential under U.S. law, including many criminal cases.
And companies that turn to the federal courts to resolve fights with rivals and customers may find themselves in limbo if the government shutdown continues beyond this week.
The system has enough money left over from fees and other sources to run through Friday, according to the Administrative Office of the U.S. Courts, which supports the judiciary. Individual courts and judges will then decide how to fulfill those critical functions, said courts spokesman David Sellers. He pointed to earlier shutdowns, the longest of which was the 21-day furlough that started in December 1995 and ended in January 1996. A shutdown beyond Friday would break that record.
“In the past, some courts have suspended civil cases, some have conducted business as usual,” Sellers said. “It’s really a judge-by-judge, court-by-court determination.”
In Minnesota, that decision is made by Chief U.S. District Judge John Tunheim, who said he will issue an order deeming all 223 staff members to be essential — which requires them to work, even without pay.
“We’re just doing our best to minimize the disruption,” said Tunheim, who added that Minnesota courts will remain open during normal business hours. He expects that the U.S. Marshals Service will continue to provide security.
Courthouses nationwide have implemented small cost-cutting measures to stretch judiciary funding for a few extra days, Tunheim said. Strategies include slashing all training activities, using teleconferences to reduce travel and instituting a hiring freeze.
“It’s very difficult for people to consider the possibility of going without pay for even one paycheck,” the judge said. “It’s going to be very stressful if this continues much longer.”
At least 14 civil cases in Minnesota have already been stayed at the request of Department of Justice lawyers, he said. Criminal cases take priority during the shutdown because defendants are guaranteed the right to a speedy trial.
Nationally, a loss of funding for civil cases would exacerbate a problem that’s already made it harder for companies to get their day in court, said Russell Wheeler, a former deputy director at the Federal Judicial Center in Washington. That problem: 119 judicial vacancies, or about 18 percent of the 677 federal judgeships.
One of the biggest pending cases is the Federal Trade Commission’s antimonopoly lawsuit against Qualcomm Inc. The nonjury trial started last Friday, and U.S. District Judge Lucy Koh, known for her tight schedules and firm deadlines, appears committed to completing the trial by Jan. 28.
“I think American companies can handle it for a while, but obviously if this is still going on six months from now it’ll be a very serious situation,” Wheeler said. If the shutdown is protracted, he said, companies may try to resolve disputes in other ways, including arbitration, if possible, taking their cases to the much larger network of state courts, which isn’t affected.
The partial government shutdown started on Dec. 22 after President Donald Trump declined to sign spending legislation without $5 billion for the border wall he campaigned on. With the president under pressure from the right to fulfill that promise and Democrats now in control of the House, it could drag on.
Whenever the cash runs out, the courts will begin operating under the Antideficiency Act, the federal law that requires work to continue if it’s necessary “to support the exercise of Article III judicial powers,” or the resolution of cases, under the Constitution.
A Dec. 10 congressional report on the effects of shutdowns said that neither judges nor their most important staff would be subject to furlough. Essential probation and pretrial services officers also would be protected if needed to resolve cases, according to the report, which found that most courts continued to function during the 1995-96 closure. Employees would either work without pay or be reimbursed with funds designated for other services, Sellers said.
Ruben Castillo, chief judge of the U.S. District Court for the Northern District of Illinois in Chicago, is ready to operate a triage system. “I will have to have a meeting with our court personnel and tell them I won’t be able to pay them. Then we’ll have to shut down civil trials,” Castillo said. Criminal trials will get priority, he said, because defendants, who are presumed innocent, have been waiting for the resolution of their cases. In the end, he predicted, he will lose some veteran employees eligible for retirement.
“This is not the way to run a court system,” he said.
The courts will need to coordinate independently with local offices of the Marshals Service and the U.S. Attorney’s Office, which are part of the Justice Department rather than the judiciary, Sellers said. For the cases deemed critical, it’s up to the marshals and the U.S. attorneys to ensure defendants are delivered to their hearings and government lawyers appear to prosecute them, he said.
Some cases delayed
The Justice Department has already won court orders putting some of the cases it’s involved in on pause. In the busy Southern District of New York, in Manhattan, the chief judge on Dec. 27 put a hold on all civil cases in which the government is a party. In Washington, U.S. District Judge Emmet Sullivan halted a challenge to restrictions the Trump administration imposed on immigrants seeking asylum. Sullivan, who has declared the policy unlawful, ordered the U.S. to alert him when funding is restored.
Some judges have declined to delay trials scheduled for January, including a California case challenging the administration’s addition of a citizenship question to the 2020 census.
Staff writer Liz Sawyer contributed to this report