Delaware’s district and bankruptcy courts are set to remain open throughout the remainder of the partial shutdown of the federal government, with all court employees expected to report to work normally, even after emergency funds run out next week.
According to memos posted Wednesday afternoon, all court employees would be considered “necessary and essential” to court functions, and civil and criminal trials would proceed as planned.
The Administrative Office of U.S. Courts has estimated it has enough funds to sustain paid operations through Jan. 25. However, should the shutdown—now the longest in modern history—extend beyond that deadline, court staff would be required to work without pay until Congress restores funding. All employees would be entitled to back-pay once appropriations are finalized.
The directives apply to the U.S. District Court for the District of Delaware, the Probation Office for the District of Delaware and the District of Delaware Bankruptcy Court, though they are subject to modification at any time.
District Court Chief Judge Leonard P. Stark said in a “shutdown order” that criminal proceedings involving “potential deprivation of an individual’s liberty” would be deemed most essential and will require additional court staff.
“The court will determine, on a case-by-case basis, action required on remaining pending civil and criminal cases,” he said in a two-page order. “All such matters, including cases classified by parties as emergent, will be referred to the assigned judge or duty judge for review and determination if emergency court action.”
Stark declined to provide additional comment Wednesday
According to the memos, jurors will be paid their usual fees, but payment may be delayed until after the shutdown is over. The courts, meanwhile, will continue to accept electronically filed documents, and the clerk’s office will determine procedures for receiving and processing paper documents from pro se litigants.
During the last major shutdown in 2013, federal judges across the country declared all employees essential, going against the guidance of the Administrative Office, which had urged courts not to enter broad orders applying to staff.
Since the current shutdown started Dec. 22, the judiciary has been using court fees and other “no-year” funds to sustain its operations. The Administrative Office previously said it expected the funds to last through Jan. 18, but later adjusted the deadline due to aggressive efforts to reduce spending.
The Justice Department has pushed to pause many civil cases across the country in trial and appellate courts, arguing the federal Antideficiency Act generally precludes federal officials from working during a lapse in appropriations. There is an exception for cases involving human life and the protection of property.
But Wednesday’s order from Delaware’s federal courts makes no distinction between essential and nonessential workers in a relatively small district that sees an outsize share of filing, especially in the areas of bankruptcy and patent litigation.
“The United States District Court for the District of Delaware is a small court with a very busy and complex docket,” Stark’s memo said.
A separate memo from Chief Judge Christopher S. Sontchi of the Delaware Bankruptcy Court mirrored Stark’s guidance and described the district as “one of the busiest Chapter 11 courts in the country.”
Congress and President Donald Trump remain locked in a dispute over funding for Trump’s plan to build a wall along the border separating the United States and Mexico. As of Wednesday evening, there was no indication on when the sides might reach an agreement to end the shutdown, now in its fourth week.