Federal courts to stay open through Oct. 17

BY ALISTAIR M. NEVIUS, J.D.

The federal judiciary announced on Thursday that federal courts will remain open through Thursday, Oct. 17, unless the government shutdown is resolved and court funding is restored before then.

When the federal government first shut down on Oct. 1, the federal judiciary estimated that between fees and federal appropriations that were not tied to a particular fiscal year, the courts could afford to stay open for 10 business days (i.e., until Oct. 14). However, the federal judiciary has curtailed its spending, allowing a few extra days of operation.

While the courts have remained open, it has not been “business as usual,” according to the federal judiciary, because many U.S. attorneys and other Justice Department employees have been furloughed. As a result, U.S. attorneys have been instructed by the Justice Department to curtail or postpone civil litigation, and they have made numerous motions for stays of litigation.

In cases where a U.S. attorney’s request to postpone litigation is denied by the court, the litigation becomes an “excepted activity” that the attorney can continue to work on during the shutdown.

Criminal litigation has not been affected.

Individual federal courts have reacted in different ways. In the Southern District of New York, all pending civil litigation has been stayed by judicial order until Justice Department funding is restored. The U.S. Court of Federal Claims, on the other hand, is continuing “to hear and decide cases without interruption” and does not expect to issue continuances.

The Tax Court announced on Oct. 1 that it was shutting down that day, and it has subsequently canceled all trials that were scheduled to begin Oct. 7 and 8 in various cities around the country.

Alistair Nevius ( anevius@aicpa.org ) is the JofA’s editor-in-chief, tax.

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