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DOJ asks US attorneys to postpone or curtail civil litigation during shutdown

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DOJ asks US attorneys to postpone or curtail civil litigation during shutdown

Oct 7, 2013, 04:13 pm CDT

The federal courts may be open for business during the government shutdown, but business there is anything but routine.

Criminal litigation continues without interruption, Third Branch News reports. But the Justice Department has asked (PDF) U.S. Attorneys across the country to curtail or postpone civil litigation that is not absolutely necessary.

As a result, federal prosecutors are filing motions for stays of litigation on a case-by-case basis. And judges' responses to such requests have varied greatly.

Chief Judge Loretta A. Preska has issued an order (PDF) staying all civil cases in the Southern District of New York except for civil forfeiture cases in which federal prosecutors have appeared as counsel. The stay will be lifted the first day after the president signs a budget appropriation into law.

Preska was apparently responding to a letter from Preet Bharara, the U.S. Attorney there, who said that "only a small number of assistants and staff" have been excepted from the government furlough. Nearly all civil division assistants and staff will be unable to work on cases or meet existing court deadlines until Congress restores government funding, Bharara wrote.

However, U.S. Court of Federal Claims Chief Judge Emily C. Hewitt has announced that that court will continue to hear and decide cases without interruption, saying she "does not expect to issue continuances based on the lapse or anticipated lapse of appropriated funds."

District of Columbia District Court Judge Colleen Kollar-Kotelly has also denied a motion for a stay of litigation by prosecutors in a big airline merger case, saying that a stay at this point would undermine the expedited discovery and trial schedule she has set and "delay the necessary speedy disposition" of the matter.

But another judge in the same district has agreed to stay a patent software case by Microsoft Corp. against the Department of Homeland Security and the U.S. Bureau of Customs.

Federal Trade Commission attorneys have also been granted a stay of litigation in an antitrust case involving the second- and third-largest glass container manufacturers in the country. So has another case alleging an anti-competitive policy change by the Commodity Futures Trading Commission.

In cases where requests for a stay have been denied, the Justice Department says it is granting exceptions.

"If a court denies a litigator's request to postpone a case and orders it to continue, the litigation will become an excepted activity that can continue during the lapse," it wrote.

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