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    October 15, 2013

    Federal Courts in Wisconsin Issue Directives in Absence of Appropriations

    Oct. 15, 2013 – Amidst a government shutdown, federal courts are hoping rainy day funds will last through the end of this week, and the federal district and bankruptcy courts in Wisconsin have issued directives to explain what will happen after that.

    Peter Oppeneer, clerk of court for the U.S. District Court for the Western District of Wisconsin, says the government shutdown won’t impact the operation of court business, because “essential” employees are still required to report for work.

    Essential employees include all judges, as well as clerk of court and probation office staff. However, Oppeneer says that cases involving furloughed federal agency employees, such as U.S. attorneys, could impact cases moving forward.

    It has not happened yet. “We have not delayed any of our federal cases, civil or criminal, involving the U.S. Attorney’s Office,” he said.

    “There may be some implications for jury payments or payments to attorneys taking indigent defendant cases. But the court itself will still operate as usual,” Oppeneer said.

    Jon Sanfilippo, clerk of court for the Eastern District, was not available for comment, but the Eastern District courts will be operating under the same directives.

    Courts Operating on Fumes

    When the government shutdown unfolded Oct. 1, the Administrative Office of the U.S. Courts projected that fees and no-year appropriations would sustain operations for 10 days. Severely restricted spending has allowed extended operations a few more days.

    Also last week, the federal district and bankruptcy courts for the Eastern and Western Districts of Wisconsin issued directives to explain what happens when fee and no-year appropriations are exhausted. No-year appropriations are leftover, or rainy day funds.

    “No-year funds are not dependent on Congress giving an appropriation,” Oppeneer said. “These are funds that can be carried forward from previous years.”

    “We won’t be in any shutdown mode until Friday at the earliest,” Oppeneer said. “Then on Friday, we become like all the other executive branch agencies.”

    At that time, the courts will operate under the terms of the Anti-Deficiency Act, according to joint order issued by William Griesbach and Pamela Pepper, chief judges for the district and bankruptcy courts in the Eastern District. Chief judges in the Western District of Wisconsin, William Conley and Robert Martin, issued a similar order.

    Once Funds Exhausted

    Potentially starting next week, Wisconsin’s federal district and bankruptcy courts will operate under the Anti-Deficiency Act, 31 U.S.C. §§ 1341-42. This law prohibits “an expenditure or obligation exceeding an amount available in an appropriation or fund.”

    It also states that government employees “may not accept voluntary services for either government or employ personal services exceeding that authorized by law except for emergencies involving the safety of human life or the protection of property.”

    Such emergencies do not include “ongoing, regular functions” that would not imminently threaten the safety of human life or the protection of property if suspended.

    Thus, courts must make personnel decisions to furlough staff not considered “essential.” But Oppeneer says basically all court employees are essential under the Act.

    The directives order essential staff to report during the absence of appropriations, and scheduled proceedings and deadlines remain in effect. E-filing is still available too.

    “From an attorney standpoint, they won’t see any difference,” said Oppeneer, who noted that essential employees will work without pay until Congress makes salary appropriations.

    U.S. Attorneys

    The U.S. Department of Justice (DOJ), which also falls under the Anti-Deficiency Act, has its own contingency plan to cover operations during a lapse in appropriations.

    Only DOJ employees that fall within certain categories are exempted from furlough. Those include employees essential to preserving the safety of human life and the protection of property, a total of 74,291 employees, according to the plan.

    In some cases, DOJ attorneys are requesting stays because of the shutdown, with varying responses from judges. If motions are denied, “the litigation will become an excepted activity that can continue during the lapse,” according to the contingency plan.

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