Purpose You have requested my legal opinion regarding whether Congress, in an appropriations Act ending the current lapse in appropriations, would have to appropriate funds specifically for the retroactive pay of furloughed Federal employees’ salaries, or whether the 2019 amendments to the Antideficiency Act (ADA) make such action legally unnecessary. Summary The 2019 amendments to the ADA are not self-executing. Therefore, for retroactive pay to be provided to furloughed employees, the appropriations Act ending the lapse in appropriation must specifically provide an appropriation for such purpose. Discussion The Government Employee Fair Treatment Act of 2019 (Public Law 116-1) and the Further Additional Continuing Appropriations Act, 2019 (Public Law 116-5) (collectively referred to herein as “GEFTA”) were enacted during the 2019 lapse in appropriations. Public Law 116-5 was also the law that ended that lapse in appropriations. These two laws amended the Antideficiency Act to read: Each employee of the United States Government or of a District of Columbia public employer furloughed as a result of a covered lapse in appropriations shall be paid for the period of the lapse in appropriations, and each excepted employee who is required to perform work during a covered lapse in appropriations shall be paid for such work, at the

employee's standard rate of pay, at the earliest date possible after the lapse in appropriations ends, regardless of scheduled pay dates, and subject to the enactment of appropriations Acts ending the lapse. 31 U.S.C. § 1341(c)(2) (emphasis added). When GEFTA was enacted, it stated that furloughed employees “shall be paid for the period of the lapse in appropriations . . . at the earliest date possible after the lapse in appropriations ends.” 31 U.S.C. § 1341(c)(2) (as added by GEFTA sec. 2). Subsequently, Public Law 116-5 further amended § 1341(c)(2) to specify that the advance promise of post-lapse payments is “subject to the enactment of appropriations Acts ending the lapse.” Excepted employees are required to work during a lapse, and therefore the government incurs binding legal obligations for their salaries which must be paid once an Act providing appropriations for those salaries is enacted. In contrast, the government does not incur obligations for furloughed employees’ salaries, because they are not performing services for the government while furloughed. “The term ‘obligation’ has a well-understood meaning in fiscal law[.]” The Anti-Deficiency Act Implications of Consent by Government Employees to Online Terms of Service Agreements Containing Open-Ended Indemnification Clauses, 36 Op. O.L.C. _, at *7 (Mar. 27, 2012). It means a “‘definite commitment that creates a legal liability of the government for the payment of goods and services ordered or received, or a legal duty on the part of the United States that could mature into a legal liability by virtue of actions on the part of the other party beyond the control of the United States.’” Id. (quoting Gov’t Accountability Office, GAO-05-734SP, A Glossary of Terms Used in the Federal Budget Process 70 (2005)); see also 2 Gov’t Accountability Office, Principles of Federal Appropriations Law 7-3 to 7-4 (3d ed. 2006). GEFTA’s amendments to the ADA did nothing to create an obligation on the part of the governme…

This conclusion is not only the best interpretation of the text of GEFTA, it is also the most practical and coherent one. To conclude that GEFTA provides an automatic appropriation for the salaries of furloughed workers upon enactment of an appropriations Act ending the lapse would effectively collapse the distinction between excepted and furloughed employees. If payment pursuant to GEFTA were guaranteed, agencies could end all furloughs, because to do so would not result in the government incurring additional obligations. Yet the statute clearly maintains (and is premised upon) the distinction between furloughed and excepted employees, and we must give meaning to such distinction. Finally, the conclusion here is supported by the facts surrounding the enactment of GEFTA. When GEFTA was enacted, neither OMB nor the Congressional Budget Office scored it as mandatory spending, demonstrating that both the contemporaneous Congress and Executive Branch did not understand GEFTA to be creating an obligation. Moreover, as noted above, Public Law 116-5 not only amended § 1341(c)(2) to add the phrase, “subject to the enactment of appropriations Acts ending the lapse” but also was the very appropriations Act that ended the 2019 lapse, as contemplated by GEFTA. Yet in that Act Congress expressly included an appropriation for furloughed employees’ back-pay that stated, “Amounts made available in this Act for personnel pay, allowances, and benefits in each department and agency shall be available for obligations incurred pursuant to subsection (c) of section 1341 of title 31, United States Code.” Public Law 116-5, § 101(2) (amending the Continuing Appropriations Act, 2019 (division C of Public Law 115–245)). This shows that Congress believed that GEFTA was not self-executing, and that an appropriations Act that ended the lapse in appropriations but that was silent as to whether it provided funds for furloughed employees’ back pay would not be sufficient to provide such payments.…

⚡ The Trump admin's budget office is arguing that furloughed workers are not entitled to backpay after the shutdown ends.

We got the memo laying out their case. Here it is.

Read more (gift link): wapo.st/47dbJEe

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This man has never met a fecal coliform that he didn’t like.

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The “savings” from cancelled leases data are bogus too. DOGE includes non existent savings from terminating leases at the end of the lease and in other cases DOGE claims credit for savings from space consolidations that were already underway.

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EPA employees say there is noticeably more security at EPA lately which is unsettling

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