A growing number of federal chief judges have had enough.
Frustrated by the budget stalemate in Congress, many judges across the country declared all employees essential in the face of a shutdown—a bold but necessary move, the judges said, to ensure basic court operations past the judiciary’s funding date of October 17.
In more than two dozen courts, from busy urban districts in New York and Chicago to rural areas, judges went against guidance from the judiciary urging them not to enter broad orders deeming all staff essential. Judges said severe budget cuts over the past year left them no choice.
“We’re drowning,” said Chief Judge Anne Conway of the U.S. District Court for the Middle District of Florida, who declared all employees essential on October 7. “We’re treading water to keep our heads up. There’s just nobody left.”
The federal judiciary has enough money to keep courts fully operational through at least October 17. Beyond that, the chief judges of district, appeals and bankruptcy courts were instructed by the Administrative Office of the U.S. Courts to figure out a shutdown plan for their respective courts.
Under federal law, only employees deemed “essential” could keep working if Congress failed to pass a budget by the start of the fiscal year on October 1. Now almost two weeks in, chief judges across the country said furloughs were off the table if the shutdown outlasted the judiciary’s funding.
At least two dozen of the 94 federal district courts and 13 appellate courts had publicly declared all employees essential as of October 11. Most courts had not finalized or announced plans.
The U.S. District Court for the South­ern District of New York and the U.S. Court of Appeals for the Second Circuit led the pack, declaring everyone — from law clerks to human resources personnel — essential on September 30. Other courts followed suit after the fiscal year began October 1 with no budget from Congress.
Chief Judge Ruben Castillo of the U.S. District Court for the Northern District of Illinois declared all employees essential on October 4. “We just could not figure out, with the reduced staff that we have, a way to continue to operate without our personnel,” he said.
However, the courts are not united. Other chief judges announced shutdown plans that did involve furloughs, which they said were more in line with the spirit of the law.
In the U.S. District Court for Nebraska, court functions — but not employees — were deemed essential. Once the judiciary ran out of money, Chief Judge Laurie Smith Camp said, officials would decide how many staff to send home while keeping the court running.
“Even though we are extremely frustrated with the position that Congress has placed us in, we respect the fact that Congress enacts the laws,” Camp said. “It’s our job to uphold them and we will not be flouting the law.”
Each court is responsible for its own plan, but the administrative office sent a letter to judges with general guidance in September. One section posed the hypothetical question of whether chief judges could simply declare all court activities essential. The answer? “No.” According to the letter, courts could only keep employees if they were necessary in one of three areas: core court functions, such as processing cases; public safety; or activities authorized by law, such as the jury system or federal public defender program.
Chief Judge Richard Roberts of the U.S. District Court for the District of Columbia said he would not declare all employees essential. Even if some staff were furloughed, he said, lawyers and litigants were unlikely to notice a difference when they came to court.
Administrative functions such as procurement or human resources “is work that can be postponed,” he said. “But the work that people do in the clerks’ office that has to do with intake filing, staffing hearings and so on, that’s got to go on.” Declaring everyone essential, though, “really is not what [the administrative office] advised courts to do,” he said.
The chief judges’ decisions are final. Unlike federal agencies, the chief judges do not submit their shutdown plans to the U.S. Office of Management and Budget.
Conway, in her order, found all employees “necessary and essential to the resolution of cases.” She said she took the administrative office’s guidance to heart, but because of budget cuts and staff reductions in recent years, the court couldn’t afford furloughs.
Judges often cited mandatory budget cuts over the last year known as sequestration as playing a major role in their decision to find all personnel essential.
Castillo said his decision was not a “knee-jerk” reaction. “We really carefully looked at the situation to see if we could spare anybody,” he said. “Our calculation was we couldn’t really say in good faith that this person in pretrial services or this person in docketing really wasn’t necessary to our ongoing operations.”
Chief Judge Michael Mills of the U.S. District Court for the Northern District of Mississippi said employees in his court were already doing two jobs — a human resources employee also doing clerical work, for example. As one of the smallest courts in the country, he said, it was tough to find any excess to cut.
“These problems are magnified when they hit small rural districts,” he said.
Appellate judges took action as well. In the Third Circuit, where staffing levels were already down more than 20 percent because of budget cuts, Chief Judge Theodore McKee declared all employees essential. One more librarian missing or information-technology staffer unavailable, he said, could hurt judges’ ability to write opinions. “You take a motorcycle and you remove 21 to 28 percent of the spokes on the wheel. You cannot say to a mathematical certainty that any one single remaining spoke is essential,” he said. “But I’m sure as hell not going to get on that motorcycle and ride it.”
Contact Zoe Tillman at firstname.lastname@example.org. Todd Ruger contributed.