More than two weeks have passed since the government shutdown began on December 22, 2018, and there is still no immediate end in sight. President Trump has resolved to continue the shutdown for as “long as it takes,” declining to sign spending legislation without the requested $5 billion for the border wall.  Federal governmental entities, including the judiciary, are now facing an uncertain future should the shutdown continue beyond this week.

According to the Administrative Office of the U.S. Courts, the court system has enough money to run through January 11, 2019, by using court fee balances and other funds not dependent on a new appropriation.  But if the shutdown continues past January 11, 2019 and exhausts the federal Judiciary’s resources, courts will have to develop plans for reduced operations, including forcing nonessential workers to stay home while skeleton crews (without pay) handle matters deemed essential under law.

Under such a scenario, criminal cases and other critical cases will likely be prioritized while civil cases may be delayed. Judges will have significant latitude to determine which cases move forward and which are deferred.

Some courts have already begun to issue their directions in anticipation of a prolonged shutdown.  Ruben Castillo, chief judge of the U.S. District Court for the Northern District of Illinois in Chicago, for example, said he is ready to operate a “triage system” if the shutdown extends beyond January 11. “I will have to have a meeting with our court personnel and tell them I won’t be able to pay them. Then we’ll have to shut down civil trials,’’ Judge Castillo said.

Other courts, such as the United States District Court for the Western District of Kentucky and United States District Court in the Southern District of West Virginia, have issued sua sponte general orders holding in abeyance any civil matters involving the government as a party to “avoid any default or prejudice to the United States or other civil litigants occasioned by the lapse in funding.”  But specific judges within those District Courts, including Joseph R. Goodwin in Western Virginia, issued orders exempting their cases from the first judge’s order. Judge Goodwin wrote: “It is my view that the government should not be given special influence or accommodation in cases where such special considerations are unavailable to other litigants.”

Still other courts are taking a “wait-and-see” approach.  The chief judge of the United States District Court for the Eastern District of California, for instance, is expected to issue an order detailing the scope of operations under lapsed appropriations if the shutdown continues past January 11.

In sum, the shutdown appears likely to create a complex, court-by-court or even judge-by-judge response. The shutdown could consequently cause confusion and a patchwork of differing and conflicting orders among the courts. The main general impact may be felt on civil matters, and those functions that require involvement by court staff, such as trials, hearings and some clerk’s office functions. However, absent intervening court orders, functions not requiring human attention, such as execution by parties of deadlines by non-filed discovery papers or filing papers through PACER, may not be impacted at all.

While we wait five more days to see if the government can resolve its differences, parties should take steps now to research any applicable orders and directions that may impact their pending litigation on a court-by-court or even judge-by-judge basis. Parties will then be best prepared to address the circumstances they may face should the shutdown continue after the federal judiciary runs out of money.