U.S. Justice Department headquarters in Washington, D.C. Credit: ALM

Updated at 9:30 p.m.

The U.S. Justice Department is asking federal courts nationwide to pause proceedings in cases, saying the government shutdown has restricted the ability of lawyers to perform their duties, including meeting court-ordered deadlines and communicating with attorneys across agencies.

Justice Department lawyers are using the same language in their requests that federal judges delay action in certain cases until federal funding has been restored. The shutdown began Dec. 21 over a dispute about funding for the Trump administration’s border wall, and there’s no end in sight.

“Although we greatly regret any disruption caused to the court and the other litigants, the government hereby moves for a stay of all proceedings in this case until Department of Justice attorneys are permitted to resume their usual civil litigation functions,” Justice Department lawyers wrote in court papers filed Wednesday in courts across the country.

The court papers said the Justice Department will notify judges “as soon as Congress has appropriated funds for the department. The government requests that, at that point, all current deadlines for the parties be extended commensurate with the duration of the lapse in appropriations.” DOJ lawyers are telling judges: “The department does not know when funding will be restored by Congress.”

The shutdown prohibits agency lawyers from working, save for limited circumstances that include “emergencies involving the safety of human life or the protection of property,” according to the notices DOJ filed Wednesday. The federal courts themselves said they have sufficient funding to remain open for at least three weeks.

The shutdown could have real-world implications in cases involving any asylum-seekers who were turned away from the U.S. following new Trump administration rules that rejected certain claims based on domestic violence and fear of gang violence.

Judge Emmet Sullivan, U.S. District Court for the District of Columbia. (Photo: Diego M. Radzinschi/ALM) Judge Emmet Sullivan, U.S. District Court for the District of Columbia. (Photo: Diego M. Radzinschi/ALM)

U.S. District Judge Emmet Sullivan in Washington last week ordered the government to return to the U.S. any asylum-seeker who had been removed based on the new regulations. Sullivan, who issued a permanent injunction blocking the new rules, ordered government agencies to meet with the plaintiffs’ lawyers within seven days—by Wednesday, Dec. 26—”to develop a schedule and plan to carry out this portion of the injunction.”

Justice Department lawyers said Wednesday they could not meet the seven-day deadline to meet with the plaintiffs teams from various American Civil Liberties Union offices. DOJ said the ACLU declined to take a position on the request to stay the deadline.

Sullivan, late Wednesday, issued an order pausing his injunction due to the government shutdown.

There was a different outcome in another high-visibility case in California. U.S. District Judge Richard Seeborg denied the Justice Department’s request to pause proceedings in a suit challenging the Trump administration’s addition of a citizenship question on the 2020 census. Seeborg did not give a reason for his ruling, which keeps in place the Jan. 7, 2019, start of the trial.

Plaintiffs lawyers in some cases are agreeing, by consent, to pause deadlines and court orders. That was the case in one dispute over the appointment of Matthew Whitaker as the acting U.S. attorney general. Thomas Goldstein of Washington’s Goldstein & Russell, agreed to the stay of proceedings.

ACLU lawyers consented to pause a Jan. 8, 2019, deadline to submit settlement conference statements in a Freedom of Information Act suit involving federal surveillance of Muslim communities in Northern California. A settlement hearing remains set for Jan. 15, 2019.

In Florida, the Justice Department asked for a filing extension in a case involving a man suing Miami-Dade County, the Department of Homeland Security and U.S. Immigration and Customs Enforcement agency over his detention. The plaintiff’s attorneys, the ACLU of Florida, University of Miami School of Law’s Immigration Clinic and Miami-based Kurzban Kurzban Weinger Tetzeli & Pratt, did not immediately respond to the government’s request, according to DOJ’s filing.


Read more:

Judge Emmet Sullivan Just Wrecked Trump’s New Asylum Restrictions

Roberts Aligns With Liberal Wing in Ruling Against Trump’s Asylum Ban

Federal Courts Could Remain Open for Weeks During Shutdown

Why Asylum Law Can’t Be Undercut by Presidential Fiat