The Volokh Conspiracy
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The First Circuit Is Not A Denny's
According to the Attorney General, the First Circuit's clerk refused to "offer any means of filing" an emergency brief after 5:00 p.m.
After 5:00 p.m. on Thursday, November 6, federal district court Judge John McConnell issued an order requiring the federal government to transfer fund from a school lunch program to pay for SNAP benefits. One might have expected the federal government to take an immediate appeal--this ruling from this particular judge was not unexpected. However, the Department of Justice did not file a brief right that evening. Rather, the brief was filed the morning of Friday, November 7. Why didn't the government file an immediate appeal? The Solicitor General's emergency application to the Supreme Court offered this explanation:
Nonetheless, after 5 p.m. on November 6 (yesterday), the district court directed USDA to pay the full November allotment by November 7 (today). . .
The government filed an emergency stay motion as soon as it was possible to file in the U.S. Court of Appeals for the First Circuit, which was this morning, and requested a ruling by 4 p.m. The First Circuit requested a response due by noon, but as of now, has not yet ruled on the government's motion.
According to Attorney General Pam Bondi, the government was unable to file an emergency appeal to the Fifth Circuit until the following morning because the First Circuit clerk's office would not accept the filing. In a thread, Bondi laid out the chronology.
.@TheJusticeDept just filed a request for an immediate stay of Judge McConnell's utterly lawless Temporary Restraining Order issued yesterday after business hours—yet remarkably forcing @USDA to "raid school-lunch money to instead fund SNAP benefits." That TRO purports to force the government to divert some $5 billion from the school lunch program to SNAP by the end of today.
Why could we file this brief only this morning, with that clock ticking? The First Circuit clerk's office made it impossible to file sooner. Despite being notified by the government of the high likelihood of fast-moving litigation, the First Circuit clerk's office refused to answer its phones until this morning, and refused to offer any means of filing this emergency request until it processed certain paperwork during regular business hours.
So, Judge McConnell exacerbated his own manufactured emergency by starting the government's clock just after the First Circuit closed for the day, forcing an even faster rush today to disadvantage the government further.
It is Congress's job is to end this shutdown and fund SNAP and other programs. We ask the First Circuit to get courts out of the business of deciding how to triage scarce funds during a shutdown. When lawless district courts step in to try to manage the federal fisc, it upends the political process and unacceptably risks compromising the programs for everyone.
Bondi makes two charges. First, she writes that Judge McConnell deliberately waited until after 5:00 p.m. to issue his twenty-seven page opinion. Second, she claims that the First Circuit Clerk's Office, knowing that an emergency filing was coming, refused to answer the phone or process the filing. It could be the case that the Judge issued the order as soon as he was done with it. It could also the case that the staff of the Clerk's office, perhaps short-handed due to the shutdown, simply went home before five and was unable to answer the phone. It is Hanlon's Razor or Occam's Razor? I'll let others decide which explanation is more likely.
But I think these facts demonstrate, quite clearly, that federal courts are not Denny's. They are never expected to operate around the clock, and as a practical matter, are not required to accept unusual filings after hours--even in emergency cases where the federal government demands an immediate filing.
At 6:08 p.m. on Friday, the First Circuit denied an administrative stay. At some point thereafter, the Solicitor General filed his emergency stay application. A ruling was requested by 9:30 p.m.
The Solicitor General also respectfully requests this Court grant an immediate administrative stay of the district court's orders by 9:30pm this evening while the Court considers this application.
I understand that Circuit Justice Jackson acting along, and granted an administrative stay at some point before 9:17 p.m. It does not appear that she referred the case to the full Court. But her order had a wrinkle:
This administrative stay will terminate forty-eight hours after the First Circuit's resolution of the pending motion, which the First Circuit is expected to issue with dispatch.
This timeline will force the government to file yet another frantic appeal to Circuit Justice Jackson again as soon as the First Circuit resolves the pending motion. (As of late Saturday evening, the motion remains pending). We will see if she acts upon it right away, or refers the case to the full Court.
This process differs from the treatment that the Fifth Circuit and a Texas District Court Judge received in A.A.R.P. v. Trump. Remember that the judge was faulted for not responding to an overnight, ex parte phone call from the ACLU. Meanwhile, it seems the First Circuit's clerk wouldn't even pick up its phone. In A.A.R.P., the Supreme Court granted an emergency stay of the district court, moments before the Fifth Circuit ruled. And the Supreme Court's order was not set to expire after the Fifth Circuit's order issued. Instead, it lasted for nearly a month.
