Government Shutdown Update

October 10, 2013 - As the government shutdown continues into Day Ten, there are signs that the impasse in Washington may be coming to an end, as White House talks with Congressional Republicans suggest the making of a short-term deal that provides temporary funding for government operations, temporarily lifts the debt ceiling, and provides a framework for discussions over FY 2014 spending and the sequester, the tax code and entitlement spending. The deal, which could be approved by Congress as early as Friday, would provide for a Continuing Resolution that ensures government funding for four to six weeks, while fostering discussions on a larger deal.

In the meantime, the Federal Judiciary announced today that it will remain open for business through next week, due to the availability of fee income and other funds to permit court operations to continue. In the event that a Continuing Resolution that provides court funding is not passed by that point, each court unit will decide which court employees are "essential" for the continued performance of that court's Constitutional powers and responsibilities to administer justice. Court staff not considered "essential" in this sense will be furloughed and will be prohibited from working voluntarily or being required to work, due to the Anti-Deficiency Act. Court staff performing essential functions will work in a non-pay status, but will be paid once appropriations are enacted, including through a Continuing Resolution.

Congress has not enacted legislation to authorize pay for federal employees who are furloughed during the current shutdown. On October 4, the House of Representatives approved legislation (HR 3223), by a 407-0 vote, to pay furloughed employees, once the shutdown ends. The Senate has not yet passed such legislation, and Republican Senators are holding up consideration of the legislation, insisting on extraneous amendments.

The next round of paychecks for federal and court employees who have remained on the job are scheduled for next week. These employees, along with about 1.5 million other federal employees exempted from furloughs, will not receive their regular paychecks until the shutdown ends, or Congress otherwise acts. A deal reached before then would open the way for them to return to work and for federal paychecks to be issued. It is uncertain whether the potential deal that is in the works will include retroactive pay for furloughed employees, or whether that will need to be separately approved by Congress.

Bruce Moyer
Counsel for Government Relations to the Federal Bar Association