Government shutdown closes in on the federal court system (including the trade courts)

Despite the partial government shutdown since December 22nd, the Supreme Court and lower federal courts have remained open by drawing on non-appropriated funds and court fees.

Federal courts will be able to continue operating with their limited funds during the shutdown until January 18th, as reported on January 7th by the Administrative Office of the U.S. Courts (“Administrative Office”). See https://​www​.uscourts​.gov/​j​u​d​i​c​i​a​r​y​-news. This deadline is one week longer than its previous estimate. To meet this goal, courts have been asked to delay or defer non-mission critical expenses,” such as new hires and non-case related travel. According to the Administrative Office, judiciary employees are reporting to work and currently are in full-pay status. If new appropriation funds do not become available, essential work” will continue to be allowed under the Anti-Deficiency Act. Id. This essential work” would include activities to support the exercise of the courts’ constitutional powers under Article III, specifically the resolution of cases and related services.” Id. Individual courts and judges will then decide how to fulfill those critical functions according to David Sellers, a spokesman for the Administrative Office. See http://​for​tune​.com/​2​0​1​9​/​0​1​/​0​5​/​g​o​v​e​r​n​m​e​n​t​-​s​h​u​t​d​o​w​n​-​f​e​d​e​r​a​l​-​c​o​urts/. In the past, some courts have suspended civil cases, some have conducted business as usual,” Sellers said. It’s really a judge-by-judge, court-by-court determination.” Id.

Below is an update on how the shutdown is impacting the trade courts and the Supreme Court

Court of International Trade (“CIT”)

On January 8th, the CIT announced that it would remain open for business” during the government shutdown (fully staffed; all filing deadlines remaining in effect; and the CM/ECF system would remain operational for electronic filings). See https://​www​.cit​.uscourts​.gov/​n​e​w​s​/​o​p​e​n​-​d​u​r​i​n​g​-​p​a​r​t​i​a​l​-​g​o​v​e​r​n​m​e​n​t​-​s​h​u​tdown.

CIT judges are deciding how their appeals will be conducted on a case-by-case basis.

More specifically, some CIT judges have granted the Government’s requests to stay deadlines until appropriations are restored to the Department of Justice, the Department of Commerce and the International Trade Commission (“USITC”). See, e.g., Order granting stay in Zhaoqing Tifo New Fibre Co. v. United States, Ct. No. 13-00044 (Jan. 2, 2019); Order granting stay in Jiangsu Zhongji Lamination Materials Co. (HK) Ltd. v. United States (Jan. 9, 2019).

Notably though, CIT judges are not universally extending all deadlines, particularly where the shutdown will not immediately affect a party’s ability to meet a deadline. For example, Judge Mark Barnett recently denied a private party’s motion to defer briefing pending the USITC shutdown due to the lapse in appropriations. See Order in Valeo North America, Inc .v United States, Ct. No. 18-00087 (Jan. 7, 2019). In its motion for stay, plaintiff’s counsel for Valeo North America noted the USITC was operating in a limited capacity,” and that any electronic correspondence will be handled once the Commission resumes operations” (citing the agency’s website). In his Order denying the stay, Judge Barnett pointed out that the quoted language did not impact plaintiff’s ability to serve its brief via the CIT’s CM/ECF system. In addition, the Government’s response brief in this appeal wasn’t due until April 5, 2019. If the lapse in appropriations affected it’s ability file a response brief, the Court would entertain an appropriate motion to vacate or stay the deadline at the appropriate time.”

Court of Appeals for the Federal Circuit (“CAFC”)

On December 28th, the CAFC issued an order regarding its continued operation during the shutdown. See http://​www​.cafc​.uscourts​.gov/​a​n​n​o​u​n​c​e​m​e​n​t​s​/​o​r​d​e​r​-​r​e​g​a​r​d​i​n​g​-​c​o​n​t​i​n​u​e​d​-​c​o​u​r​t​-​o​p​e​r​a​t​i​o​n​s​-​d​u​r​i​n​g​-​p​a​r​t​i​a​l​-​f​e​d​e​r​a​l​-​g​o​v​e​r​n​m​e​n​t​-​s​h​u​tdown.

As of now, it’s business as usual at the CAFC. The court is fully staffed; all filing deadlines remain in effect; and the CM/ECF system will remain in operation. Should the shutdown go beyond January 11, 2019,” the CAFC promised to provide additional guidance concerning its operations. Id.

Supreme Court

Finally, the Supreme Court’s press office confirmed that the Administrative Office’s January 18th deadline applies to the high court as well. See https://​the​hill​.com/​r​e​g​u​l​a​t​i​o​n​/​c​o​u​r​t​-​b​a​t​t​l​e​s​/​4​2​4​2​3​8​-​g​o​v​e​r​n​m​e​n​t​-​s​h​u​t​d​o​w​n​-​c​l​o​s​e​s​-​i​n​-​o​n​-​h​i​g​h​-​court. The court said it will stay open for essential operations (hearing oral arguments, issuing orders and opinions, and processing case filings). It has yet to close during a government shutdown.