Wednesday, October 4, 2023
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Government Gone Sideways: Shutdown Puts Lawyers ‘Out of Office’

Nearly a week into the partial government shutdown, a software project at the Equal Employment Opportunity Commission that had been on track for release early next month is now gathering dust.

WASHINGTON (CN) - Nearly a week into the partial government shutdown, a software project at the Equal Employment Opportunity Commission that had been on track for release early next month is now gathering dust.

Rachel See, the EEOC’s assistant general counsel for technology, described the scenario she’s currently facing as “extremely demoralizing.” 

“I and my staff were working toward deploying tools to help our litigators do their job better and more efficiently,” See said in a phone interview. “It's frustrating that we can't get the job done."

Across the federal government, where some 800,000 employees have either been furloughed or forced to work without pay since Saturday, project derailments like the one at the EEOC abound. 

The federal courts system has enough money to run through Jan. 11, thanks to court fees and other funds, but the salaries of government lawyers is another matter. 

For lawyers at the Justice Department, some of their first actions the day after Christmas were to file requests for stays in the cases on which they’ve been working. Among the cases on the way to the back burner are suits that challenged the government’s policy of separating families of asylum-seekers at the border and its changes to student debt relief.

The requests are similar, a boilerplate request explaining “Department of Justice attorneys and employees … are prohibited from working, even on a voluntary basis, except in very limited circumstances.”

Rules barring federal lawyers from any kind of work during the shutdown likewise made it difficult to obtain comment for this article.

One Justice Department lawyer explained in an automatically delivered “out-of-office” email that, because government funding has lapsed, “I have been furloughed and am currently out of the office.”

See has been working in different, litigation-related federal agencies since 2011 so she’s familiar with the process of cases grinding to a halt when Congress fails to pass a budget.

There is a certain amount of uncertainty to what fate awaits the stay requests trickling in. See said it was a bit easier at the National Labor Relations Board where she used to work. Since both judges and lawyers are funded through appropriations there, stays were accepted with that understanding. 

At the EEOC, where the agency is arguing more than 200 cases, See is less sure how judges will respond. She said some of her colleagues had to manage charge processing for cases coming up against statute of limitations, and there’s a skeleton staff to keep things, running albeit with acutely limited resources.

As for the cases where See herself requested stays, she said said she is unsure of the result because the law forbids her from checking her email. 

It’s notable that the DOJ has more funding, or at least more for now, than the EEOC. And the agency’s contingency plan makes room to keep people on staff in cases that involve “the president’s constitutional duties and powers” and “emergencies involving the safety of human life or the protection of property.” 

Its motions must still survive judicial review, however, and the DOJ has had mixed success so far. 

The Fourth Circuit granted a stay in a case accusing President Donald Trump of violating the the emoluments clause of the U.S. Constitution, but a similar request in Northern California, where challengers object to the addition of an immigration question to the 2020 U.S. census, was denied without comment.

In another California case concerning changes to student-debt rules, the state slammed the agency for trying to stall the case.

“The crux of this litigation ... is the unreasonable delay and unlawful withholding of critical debt relief to tens of thousands of defrauded Corinthian borrowers in California,” Bernard Eskandari, supervising deputy attorney general for the state, wrote. Eskandari said further delay wasn’t necessary or appropriate considering the nature of the case.

In Manhattan on Thursday, the chief judge of federal courts there granted a request by U.S. attorneys to suspend work on all civil cases involving lawyers for the government.

The written order by Chief U.S. District Judge Colleen McMahon says the suspension will remain in effect until one business day after Trump signs a budget appropriation law restoring Justice Department funding.

A similar suspension was ordered in the Northern District of Ohio, but Chief U.S. District Judge Dora Irizarry in Brooklyn said Wednesday that the court "will continue to hear and decide cases without disruption."

Irizarry’s order prompted U.S. District Judge William Kuntz II on Wednesday to summarily deny a request by the government to delay work on a lawsuit that challenges the Trump administration for taking away the temporary protected status of 50,000 Haitians after a devastating earthquake that killed tens of thousands of people. 

Trump is named as a defendant in several of the New York lawsuits where action is now suspended per Judge McMahon. 

In one, U.S. District Judge Lorna Schofield had granted anonymity last week to a group of people suing Trump because they fear retaliation by the president or his followers.

Schofield accused Trump in that case of using his "position and platform" in unprecedented fashion to affect court cases. The four anonymous plaintiffs in the case seek to represent a class of people who lost money in a Trump-endorsed marketing company.

See called it difficult to predict how the shutdown, and these stay requests, will impact the cases going forward. 

The length of the shutdown will be the measuring stick for how long some of these issues can get kicked down the road. But in the meantime, she’s just hoping to get back to work.

“Despite what some people think about government workers not working over the holidays, we were planning on working to hit early January deadlines,” she said. “If you shut down for one day that means, leading up to the shut down, you’re preparing for all of that, which means you’re wasting a lot of staff time. Not just mental energy, you’re stopping the work of the agency.”

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