U.S. District Court for the Middle District of Pennsylvania in Scranton

Using court fees and reserve funding, federal courts in Pennsylvania have been doing their best to keep things “business as usual” as the government shutdown seems poised to enter its fifth week. But, attorneys are already feeling the pinch, and with court funding expected to run out by Friday, court administrators are bracing for what may come next.

“Nothing's changed as far as the administration of justice in broad terms,” U.S. District Court for the Middle District Clerk Peter Welsh said. “On the administrative side, management teams and others are working on plans of how we will proceed once the funding does dry up.”

Courts across the country have been operating by using court fees and reserve funding, called “no-year” funds, which are not earmarked for use in any particular year and so can be banked by the courts. That funding had been set to run out Friday, but, according to a statement by the Administrative Office of U.S. Courts issued Wednesday, the money is now expected to last until Jan. 25. The extension, according to the statement was due to “aggressive efforts” to reduce expenses, including delaying new hires, travel or paying out certain contracts.

If the money runs out, the court will begin operating under the Anti-Deficiency Act, which means courts will have to determine what staff is needed to stay on and work unpaid “to support its mission critical work,” the AOC said.

Courts Cope

Both the U.S. District Court for the Middle District of Pennsylvania and the Western District have adopted orders staying all civil matters where the U.S., or a federal agency, is a party being represented by the district's U.S. District Attorneys Office.

A statement on the Eastern District's website said the district will continue to operate during normal business hours, despite the shutdown. The site also linked to the AOC's statement.

Joshua Lewis, clerk for the Western District, said that, operating under the stay order, which chief judges in both courts entered Dec. 27, deadlines in those civil matters are being pushed back. But other than that, he said, the court is “business as usual.”

“From the court's perspective there's no change in how we're processing” cases, he said.

As far as how the court will adjust if the shutdown continues past the date that the funding runs out, Lewis said the court is continuing to look for guidance from the AOC.

“Like everybody we're waiting for more guidance,” he said.

In the Middle District, Welsh said the court has made some adjustments to cope. Since payments for jurors are on hold, occasionally more jurors are called in, since the payment delays could cause potential jurors additional hardships. The court has also de-obligated some recurring payments on a few service contracts, which, he said, has brought somewhere between $125,000 to $150,000 back into the federal court system.

“It's nice now because everybody's still getting paid. We'll have to deal with that, with those personnel issues, if it comes to that, but as far as our duties under Article III, it's business as usual,” he said.

Some bankruptcy courts have also been impacted by the shutdown.

According to Terry Miller, clerk for the U.S. Bankruptcy Court for the Middle District of Pennsylvania, since government agencies—particularly the Internal Revenue Service—are often parties in bankruptcy cases, some proceedings are also on hold in the Middle District. In particular, adversarial and contested proceedings in those cases are on hold, and certain types of payment plans also cannot be finalized, which means trustees cannot begin paying out to parties. Since some bankruptcy attorneys are compensated through those payments, that means those attorneys are likely seeing delayed payments as well.

Although not all bankruptcy courts have taken this approach, in the Middle District parties are going to have 28 days after funding is restored to begin litigating these issues again, which is likely to create a flood of filings in the months after funding is restored.

Miller said the court has so far stayed about a dozen cases.

“Each week there are more that have to be delayed, and if it goes on a long time, we'll have hundreds of cases,” he said. “That's a substantial backlog.”

But for the most part, Miller said, operations have not been largely impacted.

Lawyers Feel the Pinch

Lawyers in the U.S. Attorney's Offices and federal public defendants have not been so lucky.

The U.S. Attorney's Office for the Western District declined to comment for this story, and the U.S. Attorney's Office for the Middle District did not return a call seeking comment. But according to several media reports, much of their workforce is furloughed, and the attorneys are continuing to pursue their criminal cases due to speedy trial rights.

However, there is another class of attorneys who have also been impacted by the shutdown: court-appointed lawyers serving on Criminal Justice Act panels. Payments for these lawyers have been suspended as well.

For most attorneys serving on CJA panels, the court-appointed work does not make up the majority of their practice, and, even when the government is operating at full capacity, payments are slow, given that attorneys have to wait until a case is over before they can submit a bill. But some said they have seen some impacts.

Carbondale attorney Bernard Brown said he usually has a roster of about six to seven court-appointed cases at a time. With payments expected to be delayed, he said he has started handling cases he normally would refer out to less experienced attorneys.

“Rather than farming out a DUI, or a small possession amount and focusing on the drug trafficking, or human trafficking cases, I'm going to keep that case to keep the lights on because you've got to pay the bills,” Brown said.

Brown, echoing sentiments from several other CJA attorneys, said he enjoys the complexity of the federal work and so has no plans to stop taking court-appointed work.

But, several attorneys said they were concerned that workers in other professions that do court-appointed work, such as investigators or experts, might stop taking court appointments.

Scranton attorney Carl Poveromo said he spoke with one investigator so far who was frustrated by the delayed pay.

“There's not always a lot of investigators out there,” he said. “From his standpoint it's, 'Well maybe I'll start focusing on private work, rather than accept appointments on these types of cases if I'm not going to be paid.' That's what I see as a problem.”

The clerk for the Eastern District referred a reporter to the AOC's statement. Offices for the federal public defenders in both the Middle and Western districts also did not return a call seeking comment.