Some Federal Judges Spurn DOJ's Push to Pause Cases During Shutdown
Many cases are being put on hold, but not in every instance. A Maryland federal judge called the shutdown a “funding dispute” between the legislative and executive branches and said the Justice Department is required to find the “means by which to continue their participation in this litigation on a timely basis regardless of their client's internal issues.”
December 27, 2018 at 02:31 PM
6 minute read
Updated 3:30 p.m. ET
Federal courts across the country on Wednesday and Thursday started hitting pause on myriad cases at the request of the U.S. Justice Department, which was arguing that the federal shutdown restricts government lawyers from performing their usual duties.
But the government didn't get all that it wanted in every case. Several judges in Washington, California and Maryland have rejected or curtailed the government's push to pause litigation until the end of the shutdown.
Justice Department lawyers appeared to copy-and-paste language in their pleas to the courts, saying that the government “greatly” regrets the inconvenience to judges and to the parties involved in the cases.
In some instances, the government's opposing counsel either agreed to pause deadlines, or did not take a position. In other instances, including one involving state attorneys general who are suing the U.S. Labor Department, there was resistance to any delay in the schedule.
Here's a snapshot of cases where a judge ruled against DOJ:
>> In Washington, U.S. District Judge Randolph Moss of the District of Columbia on Thursday declined to pause briefing deadlines in a suit challenging the Trump administration's asylum ban. “Although the court is mindful of the current lapse in appropriations, where there is 'some reasonable and articulable connection between the function to be performed and the safety of human life or the protection of property,' government functions may continue,” Moss said in an order. Moss further noted various statistics from the Justice Department showing that nearly half of the employees at the Executive Office for Immigration Review are excepted “to process all immigration cases and appeals involving detained aliens” and that 81 percent of Immigration and Customs Enforcement employees are still required to work during a lapse in appropriations. Lawyers from Hogan Lovells and Williams & Connolly represent the challengers.
>> U.S. District Judge Haywood Gilliam Jr. in California on Thursday denied the government's request to stay proceedings in a suit challenging the Trump administration's restrictions to access contraceptives under the Affordable Care Act. The suit, filed by California in October 2017, alleged Trump's rules unlawfully expanded “the scope of religious exemption to, among other things, allow any employers or health insurer with religious or moral objections to opt out of the contraceptive-coverage requirement with no assurances that the federal government will provide critical oversight to ensure coverage.” Gilliam wrote in his order on Thursday: “Given the impending January 14, 2019 effective date of the challenged rules, a stay of these proceedings is not feasible.” The order keeps in place a Jan. 2, 2019, deadline requiring the government to respond to an amended complaint.
>> U.S. District Judge Richard Seeborg of the Northern District of California refused to delay the Jan. 7, 2019, start of trial in a case challenging the Trump administration's addition of a citizenship question on the 2020 census. The plaintiffs include the state of California, Los Angeles and Oakland. The government recently unsuccessfully fought to stop the trial in a related case in New York federal district court. The U.S. Supreme Court did agree to take up one question in that case—whether U.S. Commerce Secretary Wilbur Ross, whose agency is a defendant, can be forced to sit for a deposition.
>> In Maryland, U.S. District Chief Judge James Bredar rejected the government's request to postpone deadlines related to a settlement the Justice Department's civil rights division reached with Baltimore requiring reforms to the city's police department. When Bredar entered the consent decree in April 2017, then-Attorney General Jeff Sessions criticized it as “negotiated during a rushed process by the previous administration and signed only days before they left office.”
Citing the shutdown, the Justice Department asked Bredar to postpone all deadlines in the case, including a Dec. 27 deadline for the government to file a monthly “meeting submission.” Bredar described the shutdown as a “funding dispute” between the legislative and executive branches and said the Justice Department is required to find the “means by which to continue their participation in this litigation on a timely basis regardless of their client's internal issues.”
The judge wrote: “Deeply serious matters involving the safety and well-being of the citizens of Baltimore are at issue in this case, and the court is determined that implementation of the previously entered consent decree will not be impaired or delayed by this sort of collateral issue that is internal to one party,” Bredar wrote.
>> Meanwhile, U.S. District Judge John Bates of the District of Columbia on Thursday was weighing the New York attorney general's opposition to the government's request that deadlines be extended in a suit against the U.S. Labor Department.
New York Attorney General Barbara Underwood and 11 other state attorneys general in June sued the Labor Department over a new rule that they alleged was “nothing more than an unlawful end run around the consumer protections enshrined in the Affordable Care Act.”
Underwood argued in a court filing that a Justice Department contingency plans allow for the continuation of cases where there is “'some reasonable likelihood' that the 'protection of property would be compromised, in some significant degree, by delay in the performance of the function in question.'” Bates asked the government to make any additional arguments by 6 p.m. Thursday in defense of pausing the case.
In many other cases, the government got its wish. U.S. District Judge Emmet Sullivan in Washington agreed to pause a challenge to restrictions the Trump administration imposed on immigrants seeking asylum. Sullivan, who last week declared the policy unlawful, directed the government to notify him “when appropriations are restored or if a continuing resolution is enacted.”
The U.S. Court of Appeals for the Fourth Circuit granted a reprieve in a suit that alleges Trump is illegally profiting from his Washington hotel's business with foreign countries. The Justice Department, facing a Jan. 22 deadline for its opening brief, has argued that a Maryland judge committed a “clear legal error” in refusing to dismiss claims brought by the attorneys general for Maryland and the District of Columbia.
“Absent an appropriation, Department of Justice attorneys and employees are prohibited from working, even on a voluntary basis, except in very limited circumstances, including 'emergencies involving the safety of human life or the protection of property,'” government lawyers wrote in their request.
The appeals court granted the stay the same day.
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