DOJ lawyers won’t work amid shutdown

Erik Larson
Bloomberg News

Some U.S. judges are pushing back against Justice Department efforts to halt lawsuits involving the Trump administration during the partial government shutdown, now in its sixth day.

The agency is arguing in courts across the country that lawyers for the U.S. are barred from working – even as volunteers – when appropriations from Congress lapse, as they did on Dec. 21, after President Donald Trump refused to sign off on temporary funding agreed to by Congress because it didn’t provide money to build a wall on the Mexican border.

In one case, U.S. District Judge Randolph Moss in Washington denied the government’s request to delay briefing deadlines in a suit challenging Trump’s new restrictions on immigrants seeking political asylum.

"Government functions may continue" when they relate to "the safety of human life or the protection of property," Moss wrote Thursday. The judge cited a government report indicating that a large proportion of the federal government’s immigration employees, including 91 percent of Customs and Border Protection workers, should continue working during shutdowns.

In recent days, Justice Department lawyers across the country have been asking judges to delay cases.

"Although we greatly regret any disruption caused to the court and the other litigants, the government hereby moves for a stay of all deadlines" until funding resumes, the U.S. said in a typical request filed Dec. 26 in a suit in San Diego challenging the administration’s family separation policy.

‘Internal issues’

But a high-profile Maryland lawsuit involving the implementation of a consent decree for civilian oversight of the Baltimore Police Department won’t stop. Chief U.S. District Judge James Bredar in Baltimore called the shutdown a "dispute internal to one party" and directed Justice Department attorneys "to find the means by which to continue their participation in this litigation on a timely basis regardless of their client’s internal issues."

"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," Bredar wrote in a Dec. 26 order.

The government had better luck in Washington before U.S. District Judge Emmet Sullivan, who granted a request to put a case on hold in a two-sentence ruling on Dec. 26. The judge directed the Justice Department to notify the court "when appropriations are restored or if a continuing resolution is enacted."

The U.S. is pressing ahead in some cases. The Trump administration on Dec. 26 filed a notice in an appeals court in San Francisco that it will seek to reverse a judge’s order blocking it from implementing asylum restrictions on the Mexico border.

Public safety

Plaintiffs in some cases, which target Trump policies from immigration to health care, argue the cases should proceed as planned during the shutdown because they impact public safety and are therefore exempt from federal rules barring employees from working in shutdown scenarios.

A coalition of a dozen state attorneys general also opposed a government request to delay a Jan. 2 deadline for a crucial joint filing in an Obamacare-related lawsuit. The attorneys general challenged a Trump administration plan that would allow small businesses to join together to offer cheaper health-insurance plans – a move the states say undermines some of the protections required under Obamacare.

The states said there’s a "reasonable likelihood" that the “protection of property would be compromised” as a result of the financial harm the new rule will cause to their group and individual health insurance markets.

"Indeed, that disruption was both the anticipated and the intended purpose of defendants’ rule-making," the states said. The Department of Labor, the defendant, "should not be delayed in moving forward with their litigation of this critical case," they said.