Jared Serbu: As I understand it, the same basic law that governs the executive branch, the Antideficiency Act, during shutdown supplies to the judicial branch too, but a pretty different situation in that courts tend to have a fair amount of autonomy. Is that a fair read? And what do we know so far about how the Antideficiency Act and the expiration of funds here is affecting the judiciary?
Nick Boyle: Yes, that’s a fair read. There is a significant amount of autonomy in the court system. What’s happening is that there’s been a bit of divergence, court by court, as funding has run out. So as you probably know, there was a period where nonappropriated funds could be used by courts. So that’s things like the balances in court fee accounts, for example. At this point, that funding has essentially been exhausted and courts are making different decisions on whether to stay open, what to prioritize, etc., depending on things like their caseload or what type of cases that they might take. So you’re seeing a little bit of a divergence.
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Jared Serbu: One of the things that you all point out in your latest update on this is that the district court level, they’re indicating that they’ll sort of prioritize the resolution of cases. What is not being prioritized? And I know the answer’s going to be a lot of, it depends, depending on the district court, but what goes into that resolution of cases bucket in an obvious way and what doesn’t?
Nick Boyle: Sure. So one very obvious distinction between the core systems is that some are staying open for five days a week and some are not. And so what that means is the funnel has narrowed and so even if all cases are being resolved in some places, it’s just going to take longer. To take an example, Southern District of California has said we’re open five days a week. Rhode Island, Connecticut, Alaska, other districts have said we’re going down to four days a week. So whatever the matter is, it’s going to take longer. And in terms of how courts are triaging between what they are going to address in a more timely manner, it’s what you would expect in terms of TROs and PIs and habeas matters and things that are time-sensitive are going to get prioritized. By contrast, take the District of Columbia where Chief Judge Boasberg has said if there are civil cases involving government attorneys, essentially none of those are going forward. Again, a little bit depends court to court. If it’s like a habeas matter, those are going to go forward everywhere. If it is a government matter and you’re in the District of Columbia, that’s not going to go forward in other districts where frankly, there are less government civil cases. That decision is going to be made on a case-by-case basis.
Jared Serbu: Yeah, you completely read my mind. That’s where I was going next because there’s this other big population of government employees that are involved in a lot of these cases from the Justice Department, both AUSAs and other litigators. I imagine in those other non-D. C. district courts that you mentioned, this is going to be coming up more and more in the criminal context where you need at least a federal prosecutor to be participating. Are we seeing impacts on the criminal dockets yet?
Nick Boyle: We haven’t seen that yet. Criminal cases are generally in the bucket of the types of cases that are getting full attention from the court system for obvious reasons. So on the criminal side, we haven’t seen any significant impact yet.
Jared Serbu: But I imagine in a lot of these cases, especially on the civil side, even if the courts got the bandwidth and the funding to keep going, you could see a lot of cases where the government requests a continuance because they may not have the personnel to staff a courtroom. Is that something we’re saying crop up?
Nick Boyle: Yeah, that’s exactly right. And as you might expect, given the circumstances, those requests, as far as we can see, are generally being granted unless there’s a very good reason not to. But yes, in those courts where there hasn’t been a blanket state on those cases, judges are very open to granting a state. I mean, not least because law clerks are not being paid. As I said, there are multiple courts where they’re only open four days a week. So anything they can do to decrease the pipeline, they’re going to do. So those requests are almost always being granted.
Jared Serbu: Yeah, in terms of the personnel who would be accepted or not here and who’s being unpaid during this whole during this whole episode in the judicial branch, I mean, people’s minds go to judges and clerks, who else should we be thinking about in the judicial branch who is not being paid and may not be working that could impact how the judicial system operates right now?
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Nick Boyle: Well, judges are accepted because they have Article III constitutional status, so they’re being paid. So they’re in a sort of different bucket. Law clerks, my understanding, are generally not being paid. Under the statute, the anti-deficiency statute, there’s an exception for matters that are essentially necessary for the functioning of the system. So payments are available to make sure that PACER is up and running, to make sure the electronic filing system is up and running so the structure remains in place, there are sufficient funds are still available under the Antideficiency Act to make sure that where courts still wish to hear the cases, payments are available. I think if you want to feel some sympathy, I would definitely direct it to litigants involved in civil cases where the government is on the other side and to those law clerks who are generally working but not being paid.
Jared Serbu: Makes sense and I think we focused so far quite a bit at the district court level. Is it basically a similar story in let’s say bankruptcy courts and circuit courts, a lot of case-by-case?
Nick Boyle: Circuit courts, I’m not actually aware of any circuit court yet, deciding to go, for example, to a four-day week, which, as I said, is happening around district courts. Circuit courts appear to be open. What we’re hearing anecdotally with respect to bankruptcy course as care is being taken to make sure that if a hearing needs to be held in order that assets are not somehow dissipated or lost prioritization is being given on a case-by-case basis.
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