RICHMOND, VA. >> During the longest-ever government shutdown, the federal judiciary has remained open, allowing the wheels of justice to keep turning in most criminal cases. But many civil cases have come to a halt because the U.S. Department of Justice doesn’t have enough attorneys working to handle them.
Judges have granted the government delays after the Justice Department explained that without funding, its attorneys are barred from working on cases except in limited circumstances, including “emergencies involving the safety of human life or the protection of property.”
Among the cases that have been put off:
—A lawsuit challenging the Trump administration’s asylum ban on immigrants who illegally cross the southern border.
—A lawsuit aimed at preventing offshore drilling tests in the Atlantic Ocean.
—A wrongful-death lawsuit filed by the family of a man who was shot to death after the 2016 takeover of the Malheur National Wildlife Refuge in Oregon.
“It was disappointing to hear that it was being put on hold,” said Jeanette Finicum, the widow of Robert “LaVoy” Finicum, an Arizona rancher killed by police during the armed occupation of the Malheur refuge.
The family’s suit names the United States, the FBI, Oregon State Police and others as defendants, alleging that he was “deliberately executed by a preplanned government ambush.”
The shutdown’s impact on the courts may worsen. So far, federal courts have been able to operate by using revenue from various fees charged to lawyers, defendants and litigants, as well as other non-earmarked funds.
But that money is expected to run out on Jan. 25. After that, judges would continue working with pay, but thousands of court employees would likely be furloughed or told to work without pay. Each judicial district would decide which employees are essential.
Criminal cases, because of constitutional requirements for speedy trials, would likely be given priority, potentially causing longer delays for civil cases.
Charles Tiefer, a professor at the University of Baltimore School of Law, said delays in cases where the government is being sued generally favor the government.
“As the old saying goes, ‘justice delayed is justice denied,’” Tiefer said.
“During delays, the attention of the witnesses is lost, the progress of the case is arrested and the case just loses its priority,” he said.
In some cases, judges have pushed back, refusing to grant the government’s request for a “stay,” a temporary halting of a judicial proceeding.
In at least five lawsuits filed over the 2020 census, judges have denied the government’s requests, including a lawsuit alleging the Trump administration’s plan to add a citizenship question to the census is aimed at undercounting minorities and immigrants.
In that case, a federal judge in Maryland said he expects the government’s attorneys “will find the means” to stick to the previously set schedule. “The financial matter that is the basis for Defendants’ request is a dispute internal to the Government,” Judge George Hazel wrote.
In November, after a federal judge in California blocked the Trump administration from enforcing a ban on asylum for immigrants who illegally cross the southern border, government attorneys hurriedly asked a federal appeals court, then the U.S. Supreme Court, to suspend the order, terming illegal border crossings an “ongoing and increasing crisis.”
But on Dec. 26, four days after the government shutdown began in a stalemate over the president’s demand for $5.7 million to build a U.S.-Mexico border wall, the Justice Department asked to put their appeal of the judge’s ruling on hold, “in light of the lapse of funding” for the department. The 9th U.S. Circuit Court of Appeals granted the request.
“The fact that they sought a stay shows that the claimed emergency — which they argued all the way up to the Supreme Court — is largely manufactured,” said Baher Azmy, legal director of the Center for Constitutional Rights, one of the groups suing the government.
Another case that could be slowed by the shutdown is a lawsuit filed by environmental groups over the issuance of permits to allow five companies to conduct seismic air gun blasting in the Atlantic Ocean.
Environmental groups say the blasts —conducted in preparation for potential offshore drilling — can harm marine life. Ten East Coast states have asked to join the lawsuit to try to stop the blasting.
The government has asked a judge to temporarily exempt it from responding to the state of South Carolina’s motion to join the lawsuit because of the shutdown’s limitation on its attorneys. But last week, the U.S. Bureau of Ocean Energy Management modified its shutdown plan and said it would bring back 40 employees to work on processing a second set of seismic permits. A judge on Friday barred the bureau from working on additional permits during the shutdown.
“It’s amazing how they can find government employees to work on things that appear to be a Trump administration priority when they can’t find employees to work on matters that are more important to the average citizen in the country,” said Catherine Wannamaker, a senior attorney with the Southern Environmental Law Center, one of the group’s suing the administration.
The shutdown also prompted a federal judge in North Carolina to postpone a trial in a lawsuit accusing Smithfield Foods of creating unreasonable nuisances for neighbors of its industrial-scale hog farms. The judge said the trial must be put off because jury pay could not be guaranteed during the shutdown.