Preparing for the Shutdown Here is an example of what is happening right now within federal agencies and bureaus. Earlier this week, U.S. District Judge John Bates, a George W. Bush appointee who now is director of the Administrative Office of the U.S. Courts, sent an open letter to all departments within the federal judiciary. The letter set forth in detail the protocol for what will (and will not) happen in our nation’s courts if as expected the money runs out next week. Bates wrote (emphasis in original):
If Congress fails to enact a CR by October 1, 2013, most federal entities will have to implement shut-down plans effective immediately. The Judiciary, however, will not shut down immediately. We will continue operations utilizing fees and no-year appropriations for an estimated 10 business days (through approximately October 15, 2013).
During these first 10 business days of a lapse in appropriations, the Judiciary will use available fee and no-year balances to pay judges, court employees and FDO employees, and to maintain court and federal defender operations. Courts and FDOs will continue to operate, but funding should be conserved as much as possible by delaying or deferring expenses not critical to the performance of your Constitutional responsibilities.
All Judiciary and FDO employees should continue reporting to work and they will be in full-pay status during this period. After the 10-day period, if there is still no appropriation, the Judiciary will operate under terms of the Anti-Deficiency Act, which allows “essential work” to continue during a lapse in appropriations. Among the definitions of “essential work” are powers exercised under the Constitution, which include activities to support the exercise of Article III judicial powers, specifically the resolution of cases.
Each court and FDO will determine the court staff, probation and pretrial services officers and FDO staff necessary to support the exercise of Article III judicial powers. Staff performing essential functions will report to work in a non-pay status. Other staff will be furloughed.
Staff who are furloughed cannot work voluntarily or be required to work. Staff performing essential functions and working in a non-pay status should expect to be paid once appropriations are enacted; Congress will have to take affirmative action to authorize pay for staff who are furloughed.