U.S. Capitol building

On Dec. 27, 2018, pursuant to a request from the Department of Justice, Chief Judge Jose Linares of the United States District Court for the District of New Jersey issued a standing order suspending almost all non-criminal matters in which the United States is a party, due to the current federal government shutdown, which includes the Department of Justice. The order contained an exception for all pending Social Security cases and for one particular civil case, Federal Trade Commission v. Gerber, (a deceptive trade practices case that, according to the docket, is still in the discovery period with dispositive motions due in March and a final pretrial conference in July).

The order also provides that “Any litigant affected by this Order may seek relief from the Order by motion,” and that the standing order can be modified in a particular case by separate ruling.

We do not know why the Gerber case in particular was exempted at the outset, but of course we assume there is a good reason. Our only point is that we anticipate that our federal judges will freely exercise particularized discretion in all non-criminal cases to insure that the interests of parties in civil cases are protected while the impasse in Washington continues.

District judges have already refused similar DOJ requests in other districts for stays in a suit challenging the administration's asylum ban, a suit challenging the administration's proposed impending regulations restricting to access contraceptives under the Affordable Care Act, and a suit challenging the administration's addition of a citizenship question on the 2020 census. As Judge Randolph Moss of the District Court for the District of Columbia noted in his order denying the stay in the asylum ban case, “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.” That connection is certainly foreseeable in a number of civil case contexts, and we expect that our Judiciary will provide an exemplar for responsibly serving the public's needs, even if, at the moment, a casual observer might have difficulty discerning such an exemplar from the other two branches of government.