HONORABLE JOHN D. BATESDirector
ADMINISTRATIVE OFFICE OF THEUNITED STATES COURTS
WASHINGTON, D.C. 20544
September 24, 2013MEMORANDUMTo:All United States JudgesCircuit ExecutivesFederal Public/Community DefendersDistrict Court ExecutivesClerks, United States CourtsChief Probation OfficersChief Pretrial Services OfficersSenior Staff AttorneysChief Preargument/Conference AttorneysBankruptcy AdministratorsCircuit LibrariansFrom:Judge John D. Bates RE:S
TATUS OF
J
UDICIARY
F
UNDING AND
G
UIDANCE FOR
J
UDICIARY
O
PERATIONS
D
URING A
L
APSE IN
A
PPROPRIATIONS
(IMPORTANT INFORMATION)
I write to provide you with an update on the judiciary’s fiscal year 2014 funding, whichincludes the interim financial plans approved by the Executive Committee, as well as guidanceon Judiciary operations in the event Congress does not enact a continuing resolution (CR) byOctober 1, 2013. I recognize that this memorandum is lengthy, but there is much information toshare.
Status of Fiscal Year 2014 Funding
Congress has not completed work on any of the 12 appropriations bills that fund theoperations of the federal government. Consequently, Congress is currently considering a short-term CR through December 15, 2013, for all federal entities. The CR passed the House onSeptember 20 and is currently under consideration in the Senate. The CR would provide flatfunding at sequestration levels for most of the federal government. The House-passed CR includes a $26 million funding anomaly (exception) above a hard freeze for the judiciary'sDefender Services account, primarily to pay Criminal Justice Act (CJA) panel attorney vouchersthat have been suspended for the remainder of fiscal year 2013 due to sequestration cuts. The
A TRADITION OF SERVICE TO THE FEDERAL JUDICIARY
Status of Judiciary Funding and Guidance for Judiciary Operations 2During a Lapse in AppropriationsHouse-passed CR also includes a controversial provision that would defund the Affordable CareAct (often referred to as "Obamacare"). The Senate majority leadership has indicated the Senatewill not pass a CR with the defunding provision, and the President has vowed he would vetosuch legislation. At the time of this memorandum, the prospects of the CR are uncertain. If Congress and the President do not come to agreement on a CR prior to October 1, the entirefederal government will be in a shut-down status. Should this occur, the Judiciary will beoperating under the terms of a lapse in appropriations as described later in this memorandum. Iremain hopeful that Congress and the President will ultimately come to agreement prior toOctober 1 on a short-term CR to fund the federal government, including the Judiciary. But wecannot be confident that will happen.
Interim Fiscal Year 2014 Financial Plans
On September 16, 2013, the Executive Committee approved interim fiscal year 2014financial plans for the Salaries and Expenses, Defender Services, Court Security, and Fees of Jurors and Commissioners accounts. These plans are based on a funding assumption of a CR atcurrent, post-sequestration levels with no anomaly. Within the Salaries and Expenses account, after funding requirements in the “must-pay” portion of that account – such as judges and chambers compensation and benefits, rental payments to the General Services Administration (GSA), and benefits for court support staff – the interim plan provides funding for decentralized court allotments that is approximately three percent less than what was provided to the courts in fiscal year 2013. To provide you with fundsnecessary to continue operations, the AO will issue to each court unit interim allotments equal tosix months’ funding under this interim plan. The Budget Division will issue more detailedinformation about the interim plan in late September to accompany these interim allotments.Consistent with the Executive Committee’s decision at its August 2013 meeting, theinterim plan for Defender Services contains sufficient funding to maintain on-board staffinglevels in federal defender organizations, while leaving in place the reduced CJA panel attorneyrates for all of fiscal year 2014. Without additional funding from Congress, we estimate thatCJA panel attorney payments would have to be deferred for approximately four weeks at the endof fiscal year 2014. Similar to how the courts will be funded, the AO will issue six months’funding under this interim plan to Federal Defender Organizations (FDOs) before October 1,2013.For Court Security, the interim plan reduces hours per Court Security Officer (CSO), andeliminates some CSOs in overstaffed districts. Further guidance from the United States MarshalsService will be forthcoming on the reduction in CSO hours. Absent additional funding fromCongress, the final plan will have to make some reductions from requirements in order to balancea projected shortfall in this account of $23 million. Similarly, the interim plan for the Fees of Jurors and Commissioners account contains sufficient funding to pay petit and grand jurors onlythrough August 2014. Without additional funding from Congress, we would have to transfer funding from other judiciary accounts to ensure adequate funding in this account.
Status of Judiciary Funding and Guidance for Judiciary Operations 3During a Lapse in Appropriations
Guidance for Operating Under a Lapse in Appropriations
If Congress fails to enact a CR by October 1, 2013, most federal entities will have toimplement shut-down plans effective immediately. The Judiciary, however, will not shut downimmediately. We will continue operations utilizing fees and no-year appropriations for anestimated 10 business days (through approximately October 15, 2013). During these first 10 business days of a lapse in appropriations, the Judiciary will useavailable fee and no-year balances to pay judges, court employees and FDO employees, and tomaintain court and federal defender operations. Courts and FDOs will continue to operate, butfunding should be conserved as much as possible by delaying or deferring expenses not critical tothe performance of your Constitutional responsibilities.
All Judiciary and FDO employeesshould 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 inappropriations. Among the definitions of “essential work” are powers exercised under theConstitution, 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, probationand 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 berequired to work. Staff performing essential functions and working in a non-pay statusshould expect to be paid once appropriations are enacted; Congress will have to takeaffirmative action to authorize pay for staff who are furloughed.
We do not provide specific guidance as to exactly which functions should be consideredessential because it is the prerogative of each court and FDO to make that determination. Localcircumstances may differ in courts and FDOs across the country. Attached for your informationis the section in the
Guide to Judiciary Policy
, Volume 13, Chapter 2, that provides guidance onoperating under a lapse in appropriations (Attachment 1).Jury trials should continue as necessary. Payments to jurors will be made during theinitial 10-day period. If funds are not available beyond that point, courts may continue to call jurors and assure them they will be paid, although the payment may be delayed. Should a lapse in appropriations occur, fiscal year 2014 CJA panel attorney paymentswould be suspended beginning October 1, 2013; the deferred payments from fiscal year 2013would continue to be deferred as well. Once government operations resume, panel attorney payments would be made in full in the order in which they were entered in the system. Duringthis temporary suspension, judges should continue to appoint CJA panel attorneys for eligible
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