A week away from the expected end of funding for the federal courts if the government shutdown continues, district courts across Pennsylvania and the Third Circuit are taking different approaches to planning.
All are expecting to continue on regular schedules for both civil and criminal cases — one district named a committee to consult with the clerk for creating a shutdown plan while other courts have taken a less formal approach, with chief judges consulting interested parties through conference calls and meetings.
The federal Judicial Conference estimated that it would have enough money in reserve to keep the courts functioning as usual for 10 business days after the start of the shutdown October 1, putting the date at which courts would face empty coffers at October 15. Since the date is an estimate, there’s a possibility that there may be further funding.
The decision-making process for how courts deal with the end of funding is “surprisingly decentralized,” said Charles Hall, spokesman for the Administrative Office of the U.S. Courts.
Every court is facing the same issues with no funding after the 15th, Hall said, but each chief judge has discretion about how his or her court will respond.
The basic task that the courts have to deal with is deciding which employees are essential and which employees are non-essential. Those who are non-essential would be furloughed while those who are essential would still show up to work, but wouldn’t be paid as long as the shutdown is in effect, according to Hall. Depending on what action Congress takes, they may be paid after the shutdown ends, he said.
Any employee who is needed for the public’s safety or for the protection of property is considered essential, which is a broad standard that is widely open to interpretation, Hall said.
Two federal courts in New York — the U.S. Court of Appeals for the Second Circuit and the U.S. District Court for the Southern District of New York — have already determined that all of their employees are essential.
The Third Circuit is finding the same, said Chief Judge Theodore McKee.
“It sounds like circling the wagons and protecting our people,” McKee said, but it’s not. The court has lost a number of employees through attrition over the last couple of years and those posts haven’t been filled. The court, which has 310 employees across all departments, including staff attorneys, the clerk’s office, the circuit executive’s office, tech support and the library, can’t furlough anybody without disrupting the functioning of the court.
“Courts have gone through significant staff cuts,” Hall said, which was a sentiment echoed by all three Pennsylvania district courts.
“We’re down to bare bones already,” said U.S. District Chief Judge Christopher C. Conner of the Middle District of Pennsylvania. His court is currently operating below the level that it is authorized to have under the current staffing formula, he said. The clerk’s office, which is entitled to have 69 employees, currently has 58, and the probation office is entitled to have 63 employees, but is operating with 55, he said.
The court is hoping to list all of its employees as essential and keep to only a few furloughs if necessary, he said.
In the Eastern District, Clerk of Court Michael Kunz said that he had been working closely with U.S. District Chief Judge Petrese Tucker in formulating a plan. The court will continue functioning, as it has been so far, as usual with both civil and criminal cases, he said, explaining that he expects to have more concrete figures Thursday.
That is one business day ahead of the 15th, since October 14 is Columbus Day, a federal holiday.
Similarly, Robert Barth, clerk of court for the Western District, expects to have a full shutdown plan by the end of the week. U.S. District Chief Judge Joy Flowers Conti named a committee to advise on the district’s shutdown plan that includes two Article III judges, two magistrate judges and other interested parties like the U.S. Attorney’s Office and the Department of Justice, since the functioning of the court is related to the functioning of separate departments.
Even though the federal courts have ostensibly been insulated from the shutdown because of the roughly 10-day buffer of funds, largely due to the collection of fees for civil and bankruptcy proceedings, they have been impacted because the shutdown has affected federal departments that frequently appear before them.
“U.S. attorneys across the country have been directed to ‘curtail or postpone’ civil litigation ‘to the extent that this can be done without compromising … the safety of human life or the protection of property,’” according to a release from the Administrative Office of the U.S. Courts.
Although some agencies are asking to postpone schedules because attorneys have been furloughed, the Middle District is directing cases to proceed, Conner said.
The Third Circuit is taking a similar line, announcing in a statement issued the day before the shutdown began, “Attorneys representing federal government agencies in cases scheduled for oral argument are expected to appear.”
It did suspend the filing deadline for federal agencies in non-emergency civil cases.