Under the Constitution, the federal government runs on congressional appropriations. But Congress has not passed funding beyond October 1, thus the government is “shut down.” Federal courts generally and the Sixth Circuit particularly have proceeded apace without new funds. But the federal judiciary’s coffers have run dry. As of yesterday, October 20, the courts entered “Phase II” of the shutdown. That means “federal courts will maintain limited operations necessary to perform the Judiciary’s constitutional functions.” The Anti-Deficiency Act directs courts to continue to perform mission critical or “essential work.”
How will Phase II affect us Sixth Circuit practitioners? The short answer is it largely will not. The Sixth Circuit, for now, “will remain open for business as usual,” states the court’s official order, consistent with its “constitutional duty to hear and resolve cases, even in the event of a lapse in funding.” Indeed, the court is sitting in Cincinnati this week for dozens of oral arguments, as scheduled, docketing new cases and issuing opinions.
The same goes for litigants: “All filing deadlines” remain, according to the court’s notice. Extensions are being handled, as usual, case-by-case. Slow downs may be more likely in cases involving the federal government as a litigant. Other court units, like the Law Library and Circuit Executive, are implementing furloughs. Though essential staff continue to work, they will not be paid until Congress acts. (The Government Employee Fair Treatment Act, 31 U.S.C. §1341(c), ensures they will be paid eventually.) We thank these public servants for their selfless efforts.
The Clerk of Court, Kelly L. Stephens, kindly provided us a quote, which we are pleased to pass along:
Pursuant to the Court’s general order, the Sixth Circuit Clerk’s Office remains operational during the lapse in appropriations in support of the Court’s constitutional duty to hear and resolve cases. Regular case processing, including opening new cases, is considered an excepted activity to the requirements of the Anti-Deficiency Act. 31 U.S. Code § 1341. Oral arguments scheduled to be heard will go forward unless the panel for a case directs otherwise, and all filing deadlines must be met.
To the court’s credit, it appears shutdown Phase II will barely impact litigants and the general public. More updates will follow on this Blog as they come.
