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Shutdown: The Skinny for Federal Courts, Cases, and Counselors

By William Peacock, Esq. | Last updated on

Whether you blame the donkeys or the elephants, this is not where anyone wants to be. With Congress's failures comes a federal shutdown. Some employees will be furloughed. Others will work for free, and possibly be paid later. Some facilities will close. Others will stay open.

We don't care that much about that. What we do really care about is the courts. And for those of you practicing, working, or appearing in a federal court, this concerns you. According to a memo released last week, in the event of a shutdown, the courts have sufficient funding in reserves to stay open for ten days, followed by a period of operations set at the minimum required for Article III obligations.

Ten Days Till Calamity

The instructions for the first ten days of "federal shutdown" are to keep calm and carry on. The federal court system will use fees and no-year appropriations to cover court costs and salaries, though the Administrative Office of the U.S. Courts does encourage court staff to preserve funding as much as possible by deferring expenses not critical to the performance of constitutional responsibilities.

All Judiciary and FDO employees should report to work, and will be in full-pay status. Presumably, all cases will continue as normal, so private practitioners should do so as well.

Ten Days Later

The court goes into starvation mode under the Anti-Deficiency Act. Jurors, essential staff, and CJA panel attorneys will still be required to work at the minimum level required to comply with Article III responsibilities (each court will make determinations as to appropriate staffing levels).

"Essential staff" will not be paid, but will be required to work (with promises of pay once the crisis has passed). Any other staff will be furloughed, and not paid at all.

Jury trials will continue. Court-appointed counsel will still be appointed, but any deferred pay due from 2013, and any pay accrued during the shutdown will be disbursed once the government resumes business as usual.

Supreme Court

According to SCOTUSblog, the Supreme Court will almost certainly not shut down. As of now, the court's calendar says business as usual and the Solicitor General's office plans on having all of its attorneys at work (with some staff furloughed). During the mid-1990s, when the last shutdown occurred, the court also appears to have maintained operations.

Note, however, that if the shutdown drags on long-term, the situation could change.

As you can imagine, no one is pleased with the shutdown. ABA President James R. Silkenat, in a press release this morning, blamed "political brinksmanship" and stated, "Congress has practically abdicated its constitutional responsibility to provide a budget for the government. It is time to end the scorched earth tactics and send a budget to the president."

We hope so too, and soon, as the courts only have funding for ten more days.

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