U.S. Capitol

A federal appeals court in Washington, ruling Thursday against the Federal Communications Commission, refused to delay arguments in a challenge to the agency's decision to repeal so-called net neutrality rules requiring internet service providers to give equal access to all web content.

The decision marked the latest instance of a court pushing back against an agency's bid to pause ongoing litigation amid the Trump administration's shutdown. Lawyers for the FCC had cited the agency's lapse in appropriations in seeking to postpone the arguments scheduled for Feb. 1.

In court papers Wednesday, lawyers for one group challenging the FCC's revocation of so-called net neutrality rules noted that the court declined to postpone cases during the last major government shutdown in 2013.

“Moreover, there is a need for a timely decision in this important matter. Due to the FCC's misguided and unlawful repeal of the network neutrality rules, consumers are at risk of substantial harm from internet service providers, which may now interfere with access to lawful Internet content without the restraint of the net neutrality rules,” Steptoe & Johnson LLP partner Markham Erickson wrote in the filing. He said the petitioners “have invested substantial resources and time in preparing for oral argument.”

Federal trial and appellate judges are dividing over which cases to pause amid the shutdown, now the longest in the nation's history. Hundreds of thousands of federal employees are either forced to work without pay or are required to stay home.

In the D.C. Circuit, a feud broke out among judges after the court refused to push back a hearing in a Federal Aviation Administration case. Senior Judge A. Raymond Randolph criticized two of his colleagues for allowing the case to proceed.

This week, the U.S. Court of Appeals for the Second Circuit declined a request from the U.S. Securities and Exchange Commission to delay argument in a case contesting the agency's decision to deny whistleblower awards to a pair of Canadians. The appeals court said the SEC lawyer assigned to the case would argue from a “remote” location, if necessary.

Last week, the U.S. Court of Appeals for the Fifth Circuit granted the Justice Department's request to pause a closely watched challenge to the Affordable Care Act. In that case, a Texas judge declared the signature Obama-era health care law unconstitutional.

In the days after the shutdown began last month, the Justice Department went to court seeking to postpone arguments and deadlines in thousands of cases. Government attorneys said they are not allowed to work, even voluntarily, save for in limited circumstances that involve the safety of human life and protection of property.

Some judges agreed to pause cases until funding is restored to government agencies, but many others spurned the requests.

Last week, Senior Judge Richard Leon of the U.S. District Court for the District of Columbia ordered the Justice Department to continue responding to comments on its settlement allowing CVS to complete its planned $69 billion acquisition of Aetna.

Leon bristled at the Justice Department's argument that it could not work on responding to comments until funding is restored, ruling that the “government's internal, political squabble over funding is NO reason to postpone the congressionally mandated evaluation of the government's proposal to remedy the antitrust concerns allegedly raised by the merger's consummation!”

 

Read more:

DC Circuit Judges Feud, and New Suits Pile Up, as Shutdown Persists

Federal Employees Lose Early Bid to Stop Unpaid Work During Trump's Shutdown

Fifth Circuit Freezes Big Obamacare Case Amid Trump's Shutdown

Some Federal Judges Spurn DOJ's Push to Pause Cases During Shutdown