U.S. District Judge John Bates of the District of Columbia. Photo: Diego M. Radzinschi/ALM

Federal judges across the country are letting some cases come to a halt while government lawyers are sidelined by the shutdown, but the U.S. Labor Department had no such luck in its bid to stay a multistate suit regarding a rule taking effect Jan. 1 that would allegedly weaken consumer protections under the Affordable Care Act.

U.S. District Judge John Bates of the District of Columbia said in a short ruling Friday that while he is “sympathetic” to the lapse in appropriations to some governmental agencies, the Labor Department remains fully funded.

In the federal courts, its business as usual for criminal proceedings during the shutdown, but according to the latest contingency plan, civil litigation “will be curtailed or postponed to the extent that this can be done without compromising to a significant degree the safety of human life or the protection of property.”

In the case before Bates, Department of Justice lawyers appeared for the Labor Department in a move to stay filing a joint appendix in the litigation by Jan. 2. The DOJ lawyers cited the lapse in appropriations that began at the end of the day Dec. 21 as the reason for their request. But Bates said the only outstanding item at this point is meeting and conferring about the contents of the appendix, which will be submitted by the plaintiffs.

The plaintiffs are a group of 12 state attorneys general that includes New York Attorney General Barbara Underwood and California's Xavier Becerra, who allege a new rule promulgated by the Labor Department will allow associations to offer health plans that need not comply with protections contained within the Affordable Care Act.

The attorneys general argue the new rule amounts to “nothing more than an unlawful end run around the consumer protections enshrined in the Affordable Care Act.”

In opposing the motion to stay the suit, the state AGs argued the implementation of the new rule will disrupt health insurance markets and cause financial harm. That means any work by the government attorneys during the shutdown would fall within the Antideficiency Act, which allows the government to function for the sake of protecting property.

The government's motions to stay civil litigation in other courts have been met with mixed results.

U.S. District Judge William Kuntz II of the Eastern District of New York denied the government's motion to stay litigation in a lawsuit challenging Homeland Security's 2017 rescission of temporary protected status for Haitian immigrants.

But one of Kuntz's colleagues in the Eastern District, Magistrate Judge Ramon Reyes Jr., saw things the government's way in one of his civil cases.

Reyes stayed litigation in a lawsuit filed by an inmate at the Metropolitan Detention Center in Brooklyn who alleges that corrections staffers failed to heed warnings that a fearsome MS-13 gang member housed there was carrying weapons and, ultimately, the gang member assaulted the plaintiff with a pair of socks stuffed with padlocks.

Meanwhile, across the East River at the U.S. District Court for the Southern District of New York, Judge Colleen McMahon issued an order staying all litigation in matters where attorneys from the civil division at the U.S. Attorney's Office in Manhattan appear as counsel, except civil forfeiture cases.

McMahon issued the order in response to a letter from Jeffrey Oestericher, chief of the Civil Division, who said that Main Justice has instructed that furloughed AUSAs and staff are prohibited from working during the shutdown, even as volunteers.

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.

U.S. District Judge Haywood Gilliam Jr. in California on Thursday also 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.

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