MANHATTAN (CN) – With one week to go before funding for the nation’s court system dries up, a federal judge said it was disgraceful that the Department of Justice attorney appearing before him Wednesday was working without pay.
“It is an embarrassment,” U.S. District Judge Paul Crotty said during a hearing in his Manhattan courtroom.
“It is an embarrassment, a national embarrassment,” the Justice Department’s civil attorney Robert Underhill agreed.
The courtroom exchange occurred as the U.S. judiciary itself prepares to run out of funds. Even before the judiciary’s tap runs dry, on day 33 of the shutdown federal investigations have been hobbled, and roughly 420,000 people have been made to work without pay.
Federal courts across the country have remained open, but for how much longer remains uncertain as a separate funding reserve for the U.S. judiciary is set to lapse next Thursday.
“We’re going to have to find vendors who are going to let us drag out the bill until there are appropriations,” Edward Friedland, the district executive for the Southern District of New York, said in an interview, raising questions about the ability to pay for heating, ventilation and air conditioning into March.
While the nation’s 94 district courts and 13 courts of appeal will remain open for now under the Antideficiency Act, each will have to determine separately, come Feb. 1, how long they can keep utilities paid and buildings maintained.
Criminal cases will receive priority to comport with the Sixth Amendment right to a speedy trial, but jurors may see delays in getting their $50 statutorily required daily payments, increasing the risk of no-shows.
Friedland said that more than 700 court personnel will join the ranks of those working without paychecks, including court interpreters and administrative staff responsible for docketing cases.
Sizing up their mortgages and car loans, “people are worried about how they’re going to make their next payment,” Friedland said.
“Morale is a big problem when staff is not being paid,” Friedland added.
Since the shutdown began on Dec. 22, all nonessential federal agencies – a category that includes prosecutors at U.S. Attorney’s Offices, FBI staffers and U.S. marshals, have gone unpaid.
“If the courts are open, we’re going to protect the court,” Drew Wade, a spokesman for the Marshals Service, said in a phone interview.
On Tuesday, the FBI Agents Association issued bracing warnings about how the shutdown has weakened national security, stifled criminal investigations and made life harder for their rank-and-file.
“We are honored to serve and protect the public,” the union wrote in a 72-page report. “However, the ongoing government shutdown undermines the ability to perform these duties and fund necessary operations and investigations.”
Quoting agents from across the country, the report details how the shutdown has affected probes of gangs, terrorism, securities fraud, sex trafficking and crimes against children.
“The shutdown has prohibited me from conducting any travel to conduct interviews necessary for an active case that is in immediate need of such interviews,” one Manhattan-based FBI agent said, as quoted by the union.
Another FBI employee working in the Northeast region reported that the nation’s cybersecurity defenses feel pain of the shutdown along with his family.
“The federal government shutdown means I continue to work every day to protect America, while investigations are delayed, and my family goes without pay,” that staffer said.
With the bureau reportedly setting up a food bank for its workers, the union spoke of one agent from the Western Region whose wife has been suffering with terminal cancer for more than a decade.
“To have my family placed in a financial situation we are currently facing due to partisan politics is disgusting to me as a government employee and a citizen,” the agent said.
Federal defenders too have been tightening their belts, deferring new hires, non-case related travels and certain contacts. Court-appointed attorneys have not received a paycheck since Dec. 24.
The Administrative Office of U.S. Courts, which provides support for the court system, emphasized that, the longer the shutdown continues, the more likely it is for defense attorneys to decline court-appointed cases.
In the Northern District of California, at least 200 court employees will be required to keep working without pay if the shutdown continues after Feb. 1.
Earlier this month, that district’s chief judge designated judges’ clerks and chambers staff as essential “unless a judge determines in writing that one or more members of his or her chamber staff is not essential.”
Also deemed essential are employees in the Probation Office and Pretrial Services Office, as well as pro se and death-penalty law clerks, meaning they must work without pay once funding dries up.
Chief U.S. District Judge Phyllis Hamilton said in her Jan. 11 order that the court will continue to hear and decide cases “without disruption,” accept new case filings, collect and deposit fees, supervise “dangerous offenders,” and produce bail and release reports.
To support the Clerk’s Office in California’s Northern District, Clerk of Court Susan Soong must decide how many employees are essential operations during the shutdown. Court spokeswoman Lynn Fuller said no decisions have been made yet on how many Clerk’s Office employees will be furloughed come Feburary.
David Bradley, clerk of the Southern District of Texas, said all his staff will be expected to come to work, even in a funding drought.
“They would all eventually be paid,” Bradley said, answering questions at his office in the Houston courthouse.
For now the checks are still rolling: district workers will receive their full paychecks on Jan. 25 and most of their pay on Feb. 8 if the funding impasse persists, Bradley added.
Short and spry, Bradley laughed when asked if he is doing anything to boost the staff morale. “We try to communicate with them frequently, he said. “They have a lot of questions, especially about their health care.”
As for the clerk himself, often seen in shorts and a baseball cap walking briskly around the courthouse to get his exercise, Bradley said he is not doing anything out of the ordinary to relieve stress from the funding issues.
“I do watch the news,” he said. “I hope they can get it done today.”
Bradley became clerk in 2010 by a vote of Southern District of Texas judges. He had worked as chief deputy clerk for 27 years before his promotion.
Besides Houston, Bradley is the boss of personnel in federal courthouses in Laredo, McAllen, Brownsville, Victoria, Galveston and Corpus Christi. There are 25 active district court judges in the district and 15 magistrate judges.
During Wednesday’s hearing in Manhattan over a 2017 collision of the USS John S. McCain, Justice Department attorney Underhill said colleagues of his that aren’t as financially fortunate “are being deeply, seriously and long-term hurt.”
“I have a colleague on this case who has seven children,” he continued.
The soliloquy took place during a status conference over the 505-foot warship named after the late Republican senator, whose collision with the Liberian-flagged Alnic MC resulted in 10 deaths and five injuries.
“I saw the Coast Guard vessel being put out to sea,” said Judge Crotty, who served in the U.S. Navy Reserve from 1962 to 1968. “And it’s difficult to separate yourself from your loved ones if you’ve got nothing in the till.”
As bad as civilians affected by the shutdown have it, Underhill agreed, many in the armed services have it worse.
“If I wanted to, I suppose, I could call in sick,” Underhill continued. “I can’t strike, but I could call in sick. My duties — and I think many of the attorneys feel this way — is that we don’t swear allegiance to an administration. We do it to the Constitution. But we’re also members of state bars…I owe a duty to my client, whether I’m paid or not. But the Coast Guard, they can’t call in sick.”
To do so, Underhill noted, would run the risk of a court-martial.
“Some of those families are being seriously hurt,” he added. “I know the court staff, we are all in the same boat here.”
Before ending the hearing, Judge Crotty replied that the U.S. Marshals, court-security officers and court reporters are aboard the same figurative vessel.