Lost in the current political fight over the federal budget is the reality that a government shutdown may have consequences for civil litigation pending in the federal courts. If federal government attorneys are included in the approximately 800,000 staffers deemed non-essential, they will be banned from using email, accessing their Blackberrys, and doing any work on cases under the Anti-Deficiency Act. A spokesman for the Justice Department has stated that in U.S. Attorney offices, while “all criminal litigation will continue without interruption,” in the event of a shutdown, the department will be forced “to stop or significantly curtail” other activities including most civil litigation.

Despite the limitations on Department of Justice attorneys, the federal courts have stated their intention to continue with business as usual.  The Administrative Office of the U.S. Courts says that the Judiciary will use non-appropriated funds to keep the courts running for up to two weeks. According to David Sellers, spokesman for the Office, trials in federal courts will continue and litigants will be able to file lawsuits despite the likely furloughs. Thus, it appears that federal district courts and courts of appeals will continue to function at full staff and without interruption.

The Court of Federal Claims – where every case includes the U.S. government as a litigant – also plans to continue operations during the shutdown. Moreover, it appears the Court may not be very sympathetic to the Justice Department’s staffing limitations. Chief Judge Hewitt issued a statement that the court “does not expect to issue continuances based on the lapse or anticipated lapse of appropriated funds and will adhere to schedules currently in effect.” 

No formal announcements have been made by the Armed Services Board of Contract Appeals (“ASBCA”) or the Civilian Board of Contract Appeals (“CBCA”), but current expectations are that the ABSCA will close if there is a furlough, while the CBCA will continue to operate as normal. An ABSCA shutdown may lead to delays in proceedings before that Board although, under the rules, contractors should still be able to file notices of appeal via mail to satisfy the ninety day deadline set by the Contract Disputes Act.

The Government Accountability Office also plans to shut down for the duration of any work stoppage.