“I don’t know if the Department of Justice attorneys are working,” Burakiewicz quipped during an interview with The Washington Post.
Many aren’t, with many federal attorneys and judges likely to remain out until the end of the impasse, leaving their cases waiting.
The Justice Department employs more than 100,000 workers who work in a range of branches and agencies — from the FBI and the Drug Enforcement Administration to U.S. attorney’s offices to the Bureau of Prisons, immigration and solicitor general’s offices nationwide.
As with most nonmilitary federal agencies, the appropriations act that had funded the Justice Department expired, triggering the partial government shutdown on Dec. 22. More than 800,000 government workers have either been furloughed or are working without pay. Justice Department employees involved in criminal investigations and prosecution are among those working without a paycheck.
The shutdown delays almost all federal civil cases, including discrimination cases, whistleblower cases, disciplinary cases and retaliation actions taken against federal employees. It further backlogs thousands of immigration court cases.
According to court documents, Justice “attorneys are prohibited from working, even on a voluntary basis, except in very limited circumstances.
“Justice is being put on hold,” Elaine Fitch, a D.C.-based employment attorney, told The Post.
Currently phone calls to the EEOC, which handles discrimination cases, go to a voice mail greeting: “You’ve reached the Equal Employment Opportunity Commission. Because of the lapse of appropriations, the EEOC is currently closed. We will not be returning messages from this mailbox until the government reopens.”
EEOC administrative judges have been furloughed and placed on temporary leave, too, according to Fitch. As a result, all cases before then are put on hold.
New filings are pushed back by the number of days the government is closed. When it reopens, Fitch said that judges will need to reschedule everything, shoehorning cases in. Attorney workloads will skyrocket and “it’s the people who lose out."
Government attorneys have also filed requests for extra time on pending cases.
In Texas, one motion asked a federal judge to postpone a case challenging Obamacare because the lawyers were “unable to prepare their opposition at this time due to the lapse in appropriations.”
A Maryland filing sought to delay a hearing in the NAACP’s suit against the U.S. Census Bureau. The lawsuit alleges that the lack of preparation for the 2020 census will result in an undercount in communities of color.
“Every day that passes is potentially hindering relief in the case,” NAACP general counsel Bradford Berry told The Post.
On Monday, U.S. District Court Judge Paul W. Grimm agreed. He denied the government’s motion, noting the time-sensitive nature of the case and that the “President publicly stated [the shutdown] may extend for ‘months even years.’”
The Department of Justice did not return a request for comment about the impact of the partial government shutdown.
On Dec 26, most immigration judges were also furloughed, according to president of the National Association of Immigration Judges, Ashley Tabaddor.
Only one fourth of the courts’ 400 judges were deemed “essential,” all of whom have dockets with detained individuals. This accounts for only 5 to 10 percent of all immigration cases.
Tabaddor described the partial shutdown as a “tremendous disruption to cases in an already overburdened court.”
Over the past two years, the immigration court backlog has grown by hundreds of thousands. Recently numbers reached 800,000, of cases primarily involving people who have been released from custody or who have never been in custody.
On average, immigration courts see several thousand cases per day. During the shutdown, they have been canceled. No future date has yet been set; many cases will need to be bumped to the end of the line.
The furlough, Tabaddor said, undermines the integrity of the court and highlights “yet another way the immigration system has been pulled into a policy debate it should be immune from.”
More than two decades ago, during the Clinton administration, the nation endured an unprecedented government shutdown. The Clinton-Gingrich impasse of 1995 to 1996, which remains the longest to-date, caused hundreds of thousands of federal employees to be furloughed.
There was no legal basis for what was an “essential” government function then, according to Neil J. Kinkopf, who was with the Justice Department’s Office of Legal Counsel at the time.
“Either you had a credible claim that there was a statutory authority to proceed in spite of lack of appropriations or not,” he said.
There has since been some legislation on the meaning of “essential,” though even with limited precedent there seems to be little more clarity today.
Attorney Burakiewicz’s suit asked that the named plaintiffs be paid owed wages. On Tuesday, the National Treasury Employees Union filed a similar lawsuit.
Of the 2.1 million federal workers nationwide, The Post reported, approximately 800,000 are expected to be affected by the shutdown.
There are 420,000 federal employees deemed “essential,” who are expected to come to work; “essential” government employees are those “performing emergency work involving the safety of human life or the protection of property.”
At least 380,000 other federal workers are “furloughed."