Furloughs stall civil cases in Sacramento’s U.S. attorney’s office

U.S. Attorney Benjamin Wagner does not rattle easily. He has faced some tough customers in court and never blinked.

But the government shutdown for lack of a budget has the top law enforcement officer in Eastern California shaken right down to his toes.

It’s not just his words, but the tone of his voice and the expression on his face, that betray the frustration, helplessness and deep concern he feels.

“It’s had a heavy impact on our ability to accomplish our mission,” the career prosecutor said ruefully. “It’s ridiculous. It comes on top of a three-year pay freeze, across-the-board sequester cuts and a hiring freeze.

“I get more and more concerned about losing good people. Not long ago, lawyers were a glut on the market, and we were able to hire top talent. But that’s no longer true. There are more opportunities out there now, especially for people who have the kind of experience you get in this office.”

Wagner estimated that 38 percent – 63 of approximately 168 – of his staff have been furloughed as “non-essential” – a term he takes great umbrage to.

“They are all essential, or I wouldn’t have them here,” he declared.

But, in the matter of the shutdown, he takes his cues from Department of Justice headquarters in Washington, D.C.

Put another way, the U.S. attorney’s office occupies 2 1/2 floors in the Sacramento courthouse and half a floor in the Fresno courthouse. Right now, it’s possible everybody would fit on one floor.

Federal law enforcement agencies, such as the FBI and the Drug Enforcement Administration, are continuing “business as usual.”

Congress has assured those who continue to work as “essentials,” as well as those waiting it out on furlough, that they will receive back pay when funding is restored.

So far, Wagner has been able to keep virtually all the attorneys on the criminal side of the office, he said, but the civil side is wiped out.

That doesn’t mean criminal cases will not be affected. Wagner cited one major fraud case involving airplane parts that is nearing trial, but two key witnesses – a compliance inspector and an investigator, both Federal Aviation Administration employees – are furloughed.

Attorneys who prosecute civil cases filed by the U.S. attorney’s office and defend others filed against the government are furloughed, and the cases are at a standstill, he said.

Support staff who – for example, issue grand jury subpoenas, produce discovery to opposing counsel, and enter material into the department’s electronic filing system – have departed, and those jobs will go undone until the government is funded.

Requests for continuances have been filed in all civil cases. Settlements in process or in the tentative stage are stalled.

“The longer it goes, the more it’s going to slow things down,” Wagner said.

That thought brings into sharp focus the reality that the time is fast approaching when the U. S. courts in the 94 judicial districts and 12 circuits will have to make hard choices about who, if anyone, is to be furloughed.

Like other trial courts, the one in Sacramento has been operating on various fees it routinely collects, but that money will be gone next week.

In an order published Monday, Morrison C. England Jr., chief judge of the Sacramento-based Eastern District of California, declared all judges and support staff – including probation, pretrial, maintenance and security services and the U.S. Marshals Service – to be essential, and “are ordered to report for work according to their regularly scheduled hours and shall continue all normal operations.”

In an email message preceding that order, England noted, “Because we are already operating with 75 percent of our normal staff, it is a very difficult decision on how much more reduction in staff we can absorb.”

His order runs counter to dire predictions in the national press of “disastrous” cuts in court staff across the country if the shutdown goes past Tuesday.

A message on the U.S. Supreme Court’s website says that it “will continue to conduct its normal operations through (today)” and will provide an update should “the lapse of appropriations” continue past today.