Updated 3:02 p.m.
Citing the government shutdown, U.S. Justice Department lawyers are urging federal trial judges to stay litigation in civil cases.
Federal prosecutors across the country started filing requests for extensions yesterday in civil cases in anticipation of the shutdown. Litigation in Washington would be uniquely affected, since federal agencies are often sued in the federal district court here.
In one high-profile case, government lawyers asked for a stay in the U.S. Airways – American Airlines antitrust case in Washington federal district court. As the trial in the case inches closer, and the deadline for the merger approaches, lawyers for the airlines oppose the government request for postponement.
"At the end of the day on September 30, 2013, the appropriations act that had been funding the Department of Justice expired and appropriations to the Department lapsed," Antitrust Division lawyers Mark Ryan and Ryan Danks wrote in a motion for a stay of litigation. The Department does not know when funding will be restored by Congress."
Lacking funding, DOJ lawyers, the filing said, are generally prohibited from working, even on a voluntary basis, save for the limited circumstances of "emergencies involving the safety of human life or the protection of property."
"This is creating difficulties for the Department to perform the functions necessary to support its litigation efforts and, accordingly, the Department’s policy is to seek a stay in all pending civil litigation," DOJ lawyers in the airline antitrust case wrote.
U.S. District Judge Colleen Kollar-Kottelly did not immediately rule on the government's request to stay the airline antitrust case. If the government request is approved, deadlines, according to the Justice Department, would be extended "day-for-day with the duration of the lapse in appropriations.
"If the Court denies the request, the government will comply with the Court’s order, which would constitute express legal authorization for the activity to continue," DOJ said in its papers.
A lawyer for U.S. Airways Group Inc., O'Melveny & Myers partner Richard Parker, who leads the firm's antitrust and competition practice, was not immediately reached for comment. Jones Day commercial litigation partner John Majoras, who represents AMR Corporation, also was not immediately reached for comment this morning.
The lawyers in the case recently said that discovery was "proceeding expeditiously" and set to end by October 25. The trial is tentatively scheduled for November. U.S. Airways and American agreed last month to push back the deadline for the completion of the merger from December 17 to January 18, 2014.
The government shutdown could delay numerous high profile civil cases pending in Washington and around the country.
In a Freedom of Information Act case in Washington, the challengers, the Electronic Privacy Information Center, said it opposes any postponement in the litigation. But the group said that "in light of the extraordinary circumstances of the government shutdown, EPIC will not file an opposition" to the government motion for a stay.
The Washington federal district court's docket this morning showed the government had asked for extensions in several dozen cases. Judges agreed to cancel settlement conferences and other hearings scheduled for this week in anticipation of the shutdown.
Yesterday, lawyers from the U.S. Attorney's Office in Washington asked a federal magistrate judge to delay oral arguments scheduled for today in a discrimination lawsuit against the Library of Congress, citing the shutdown. Not only would the federal prosecutors not be available, the lawyers said, but Library of Congress employees would also not be working. The judge granted the request.
In another Freedom of Information Act case involving five governmental entities, the U.S. Attorney's Office filed a motion yesterday asking to stay the briefing schedule, explaining that it wouldn’t be able to file an answer to the complaint before the shutdown. The request was granted.
U.S. District Judge Colleen Kollar-Kotelly denied the government's request to put the airlines merger antitrust case on hold. The judge issued this ruling Tuesday afternoon.
“Indeed, because of the need for the prompt resolution of this matter, the Court has set an expedited discovery and trial schedule," Kollar-Kotelly wrote. "A stay at this point would undermine this schedule and delay the necessary speedy disposition of this matter. It is essential that the Department of Justice attorneys continue to litigate this case.”
Zoe Tillman contributed to this report.