Judge Sri Srinivasan of the U.S. Court of Appeals for the D.C. Circuit on Dec. 14, 2017. Credit: Diego M. Radzinschi / ALM

Federal trial and appellate courts are grappling ever more with requests from U.S. government agencies to postpone cases as the Trump administration’s partial government shutdown enters record-setting territory for the number of days employees have been kept from their offices or forced to work without pay.

The U.S. Justice Department went to court in the days after the shutdown began in late December asking judges to postpone filing dates and hearing schedules until funding is restored to government agencies. Government lawyers argued they can only work in limited circumstances that involve human life and the protection of property. Some judges spurned those requests for delays, while others paused proceedings.

Down the street from the U.S. Capitol, two judges on the U.S. Court of Appeals for the D.C. Circuit argued with each other Wednesday—in a court ruling—about whether a hearing scheduled for Friday in a Federal Aviation Administration case should be postponed. Judge Sri Srinivasan, joined by Judge Harry Edwards, said the hearing must go on. Judge A. Raymond Randolph said there was no rationale for denying the FAA’s request to postpone the argument.

Srinivasan pointed to the last major government shutdown, in 2013, when funding for agencies lapsed for nearly half of October. The government sought to delay at least 16 oral arguments then.

“Every one of those motions was denied; and every time, the government then participated in oral argument,” Srinivasan wrote.

Randolph, in his dissent, said that holding the FAA argument Friday “is not a necessary response to some imminent threat to human life or property,” as required by the Antideficiency Act. Randolph accused Srinivasan and Edwards of issuing an order “with no legal analysis.”

Judge A. Raymond Randolph, of the U.S. Court of Appeals for the D.C. Circuit speaking in 2018. Credit: Diego M. Radzinschi / ALM

“The majority’s argument must be that because we have denied these stay motions in the past we should do so again. Charles Dickens had a few words about this form of argumentation: ‘Whatever is is right’; an aphorism that would be as final as it is lazy, did it not include the troublesome consequence, that nothing that ever was, was wrong.’”

The federal judiciary has said it has enough money to continue paid operations at least through Jan. 18, one week later than initially estimated. “In an effort to achieve this goal, courts have been asked to delay or defer non-mission critical expenses, such as new hires, non-case related travel, and certain contracts. Judiciary employees are reporting to work and currently are in full-pay status,” according to an advisory the Administrative Office of the U.S. Courts posted.

Meanwhile, lawsuits are mounting from federal employees and from unions representing government workers. Two cases were filed Wednesday in Washington’s federal trial court challenging the Trump administration’s move to force employees to work without pay. Other cases in the U.S. Court of Federal Claims are seeking back pay and other damages.

In one case in the trial court, the law firm Kator, Parks, Weiser & Harris sued on behalf of five anonymous government employees: two employees of the Justice Department; and one each from the U.S. Department of Agriculture, Department of Transportation and Department of Homeland Security. The suit did not say whether the Main Justice employees were lawyers, and the firm declined to comment.

The complaint seeks to “end the practice of forcing certain federal employees to work while in unpaid status during the government shutdown,” according to a statement from the firm. The suit also challenges the block on federal employees from seeking outside employment during the shutdown.

The National Treasury Employees Union, represented by its in-house legal team, also filed suit Wednesday in Washington’s federal trial court. The union said it represents 150,000 federal government employees across 32 agencies and departments, including the IRS, Treasury Department, National Parks Service and the Patent and Trademark Office.

The suit alleged the Trump administration has “purported to authorize agencies to require employees to work in a far broader range of circumstances than the Antideficiency Act allows.”

The FBI Agents Association on Thursday sent a letter to the White House and congressional leaders calling for an end to the shutdown.

“As the shutdown continues, special agents remain at work for the American people without being paid, and FBI leadership is doing all it can to fund FBI operations with increasingly limited resources—this situation is not sustainable,” the letter said. “The important work done by the bureau needs to be funded immediately.”

 

Read more:

Government Shutdown Leaves Law Student Externs Scrambling

Federal Judiciary Says ‘Limited Funds’ Will Expire Jan. 18

Some Federal Judges Spurn DOJ’s Push to Pause Cases During Shutdown