Implementation of Nebraska’s shutdown plan

The following recommendation from the Unit Executives was approved last night by the active district judge for the District of Nebraska regarding implementation our shutdown plan:

The judiciary shutdown is expected to commence on Friday, October 18, 2013. Pursuant to the District Court of Nebraska’s FY 2014 Shutdown Plan, the Court Unit Executives (CUEs) recommend to the active Article III judges that the court 1) permit all employees to perform essential work on Friday, October 18, 2013, and 2) furlough, i.e., place in a temporary non pay status because of lack of funds, each employee1 in the District Court Clerk’s Office, Probation, Pretrial Services, and Shared Services for one day (8 hours) per pay period, for a total of 99.26 days (794.08 hours) per pay period, commencing October 21, 2013 and ending when Congress passes a continuing resolution or an appropriation that is signed into law by the president.
During the judiciary shutdown period, employees may only perform the following essential work:
(1) activities necessary to support the exercise of the Article III judicial power, i.e., the resolution of cases in which there is a constitutional or statutory grant of jurisdiction;
(2) emergency activities necessary for the safety of human life and the protection of property; and
(3) activities otherwise authorized by law, either expressly or by necessary implication, including:
(A) items guaranteed by the Constitution (e.g., Article III judges= salaries);
(B) activities funded with available no-year appropriations (e.g., information technology resources, jury system, and federal defender program);
(C) entitlement programs (e.g., Judicial Survivors Annuities System, which is partly funded by judges= salaries); and
(D) minimal activities needed for an orderly shutdown of other official functions.
Staff will not perform functions that are unrelated to essential work (e.g., ancillary administrative tasks, non-essential training, and other similar activities).
1 Part-time employees furlough hours will be pro-rated.

Our Chief Judge, Laurie Smith Camp, was kind of enough to consult me about the implementation recommendation. I told her I agreed with it.


Tell Congress to go to hell–all federal district court employees are essential

As the federal courts approach the point where all non-appropriated funds are expended, which remaining employees are essential becomes a heart-breaking question.  STOP!

Reject the premise of the question. Given the loss of employees already suffered by the judiciary on account of the sequester and otherwise, why shouldn’t every remaining employee of every federal district court (including FPD employees) be declared “essential?”

If the Chief Judge, and all the district judges, issued an order so stating, the Clerk of Court, the Federal Public Defender and all the other Unit Executives, would be protected from prosecution under the Anit-Deficiency Act. Furthermore, there is a strong argument for such a declaration. Best of all, such an order would set up an inter-branch dispute worth having.

Given such an order, Congress would have two choices. It could do nothing in which event Congress loses its ability to destroy the judiciary be failing to pass a budget. Or, Congress could go batshit, and the judiciary and Congress could have it out.

As I said, there is strong support for such a declaration. One Senator prominent in judiciary matters has even made an admission that such a decision should go unchallenged because it is entirely justified:

Senator Chris Coons (D-Del.), chairman of the Senate Subcommittee on Bankruptcy and the Courts, said the shutdown has made it challenging to learn more about how exactly the shutdown will harm the courts. In an interview with The National Law Journal on Friday, Coon said furloughs in his office have hampered communication with the judiciary officials.

Coons, who held an oversight hearing on court funding earlier this year, said the federal courts have been under significant stress through budget reductions already. He said he wouldn’t challenge district court officials who, this week, decide that every remaining employee is essential. Two courts have already made that determination.

Todd Ruger and Zoe Tillman, Lawmakers Sound Alarm Over Shutdown’s Blow to Judiciary, The BLT: The Blog of Legal Times, October 5, 2013. (Emphasis added.)

It is time to tell Congress to go to hell. It’s the right thing to do.


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