	Introduction

Because Congress did not provide funding for FY2014, the new fiscal year beginning October 1, 2013, the Department of Defense (DOD), like other agencies, is now subject to a lapse in appropriations. In that event, agencies are generally required to shut down, although the Office of Management and Budget (OMB) has identified a number of exceptions to that rule, including a blanket exception for activities that "provide for the national security." Under this scenario, DOD benefit programs for military retirement and concurrent receipt could be delayed if the debt ceiling is not raised, which is not the case during the current government shutdown, where payments to military retirees are protected, as are salaries of troops, and DOD civilians after enactment of H.R. On October 10, 2013, the President signed H.J.Res. 91 , which provides for the payment of death gratuities and other funeral expenses for military personnel. Known as the "Honoring the Families of Fallen Soldiers Act," this act was passed in response to considerable controversy in Congress and the press about the Secretary of Defense's determination that these expenses were not covered under the Pay Our Military Act (POMA), passed on September 30, 2012. During a House Armed Services hearing on October 10, 2013, on implementation of POMA, several Members raised concerns about the Department's interpretation. CBO estimates that H.J.Res. DOD Revises Its Guidance on Furloughing Certain Civilians

On October 5, 2013, Secretary of Defense Chuck Hagel announced that after consultation with the Department of Justice, it was decided that the new law, H.R. 3210 , would permit DOD to recall most, but not all, DOD civilians from furlough rather than the fewer number "excepted" from furlough under DOD's original September 25, 2013, Contingency Plan. The Administration interpreted H.R. 3210 as also permitting the recall of those DOD civilians " whose responsibilities contribute to the morale, well-being, capabilities and readiness of service members [italics added]" . This revision of DOD's Contingency Plan would increase the number of DOD civilians returning to work from roughly 50% to about 95%, according to DOD Comptroller Robert Hale. As the services and DOD components implement this decision, civilians will return to work starting this week and will become eligible to be paid on time under H.R. 3210 . DOD is continuing to review whether the number of contractor personnel, also covered under H.R. 3210 , will be increased. The Issue of Retroactive Pay for Civilians

Those defense civilian or contractor personnel who were or remain furloughed would only receive pay for that period if Congress passes legislation to pay furloughed personnel. On October 5, 2013, the House unanimously passed H.R. 3223 , which would provide retroactive pay for all federal employees, as occurred during the 1995 to 1996 shutdown. The President has announced his support. The Senate has not taken up the bill at this time. 3210 .) This bill is part of a package of five "mini" CRs that would provide funding, generally at the FY2013-enacted level including the effects of sequestration, for the District of Columbia, the National Institutes of Health, various museums, Veterans Administration funding, and pay for guard and reservists. DOD's Contingency Plan for a Shutdown

In a September 30, 2013, press conference, DOD Comptroller Robert Hale suggested that while all military personnel would continue to report for duty, only those reservists, DOD civilians, and contractor personnel providing support for the Afghanistan war and other unspecified military operations would continue to work. This delay appears to reflect some debate about how to interpret the language in the new law, which provides appropriations to cover the pay and allowances of those DOD employees who are currently "excepted" from furlough, hence paying those personnel on time, and gives the Secretary of Defense authority to bring previously furloughed civilians and contractor personnel back to work, provided he determines that they are providing support to members of the armed forces performing active service. Some personnel would be "excepted" from furloughs, including all uniformed military personnel on active duty, while others would be subject to furlough. "Excepted" military, reservists, and civilian personnel who would continue to work during a lapse in appropriations would be paid on time because of the passage of H.R. Among the questions addressed are 
the effects of a shutdown on pay for uniformed military personnel and DOD civilians; how reservists and military technicians may be affected; types of activities to protect persons and property that are "excepted;" potential effects on contracting; whether DOD Dependent Schools or childcare centers would continue to operate during a shutdown; how long operations of the Defense Finance and Accounting Service could continue; and whether the "Feed and Forage Act," 41 U.S.C. The 2013 guidance also concludes that child care "essential to readiness" may continue as well as emergency family support. Issuance of some contracts would continue during a shutdown, but other contracting activity, perhaps done by the same people, would not. 3210 , funds for all active-duty military, activated reservists, and those DOD civilian and contractor personnel whose support is necessary for military operations, for other DOD "excepted" activities, and to support active service personnel will be paid on time despite the lapse in other appropriations. DOD is continuing to review the status of many contractor personnel under H.R. While contracts for activities necessary to support military operations could be signed, reimbursements could not be provided and it is not clear that all vendors would be willing to provide goods or services under these circumstances, particularly if a shutdown appears likely to continue for an extended period. 1341 and 1342. The following discussion (1) briefly reviews the legal basis for the Department of Defense to continue operations during a funding lapse and the attendant legal constraints on the scope of activities and the financial mechanisms that are permitted; (2) provides a brief overview of the possible impact of a lapse in funding on military and civilian personnel, on current military operations including operations in Afghanistan, and on day-to-day business operations of the Department of Defense; and (3) provides selected excerpts from DOD guidance on activities that may continue during a funding lapse and those that may not. The Antideficiency Act

The Antideficiency Act, now codified at 31 U.S.C. Administration of benefit payments provided through funds that remain available in the absence of new appropriations: The Attorney General found that departments are "authorized to incur obligations in advance of appropriations for the administration of benefit payments under entitlement programs when the funds for the payments themselves are not subject to a one-year appropriation." This wording might be read to imply that the authority of agencies to continue operations related to national security is independent of the authority to continue activities related to the safety of life or the protection of property. Those employees of the Department who do not fall within the scope of the Act (unless they have been determined to be "excepted" and unless engaged in activities that support service members) include:
i) CIO functions;
ii) DCMO functions, at the OSD and Component level;
iii) Legislative Affairs and Public Affairs functions not previously excepted or required
in support of internal communications to members ofthe Armed Forces in active service;
iv) Auditor and related functions, not previously excepted, and DF AS functions that otherwise would not be determined to be "excepted" upon exhaustion of its working capital fund budgetary resources, and not required to process payrolls;
v) Work done in support of non-DoD activities and Agencies (except the U.S. Coast Guard); and
vi) Civil works functions of the Department of Army.
Because Congress did not provide any FY2014 funding for the Department of Defense (DOD) by October 1, 2013, the beginning of the new fiscal year, DOD, like other agencies, is now subject to a lapse in appropriations during which agencies are generally required to shut down. The Office of Management and Budget (OMB), however, has identified a number of exceptions to the requirement that agencies cease operations, including a blanket exception for activities that "provide for the national security."
With the approach of the Treasury Department's estimate of an October 17, 2013, deadline for raising the debt ceiling, concerns have grown about the potential effect on government programs and workers. If the Treasury Department were to continue the current practice of paying bills as they come due, DOD programs ranging from payments to military retirees to contractor bills could be delayed or reduced, a situation that differs from the current government shutdown. It is difficult to predict effects because of the uncertainty about Treasury actions, but payment delays could affect all programs and personnel. Negotiations are currently underway to deal with the upcoming deadline.
Concerns about DOD's implementation of the government shutdown continue. On September 25, 2013, DOD issued guidance and a contingency plan that limited the types of "excepted" activities that would continue to be carried out during a shutdown to military operations, unspecified other operations and national security activities, and those necessary to protect the safety of persons and property. As a result, during the lapse in appropriations, some DOD personnel would be "excepted" from furloughs, including all uniformed military personnel, while others would be furloughed and, thus, not be permitted to work. Those civilian personnel who support "excepted" activities—roughly half of DOD's 750,000 civilians—would continue to report for work while the remainder would be furloughed and not paid. Normally, such "excepted" military and civilian personnel would continue to work but would not be paid until after appropriations are subsequently provided.
With enactment of H.R. 3210, the Pay Our Military Act (POMA), on September 30, 2013, however, many defense personnel will be paid on time, including all active-duty personnel, most civilians, and some contractor personnel. On October 5, 2013, Secretary of Defense Chuck Hagel announced that the language in H.R. 3210 would allow DOD to recall most but not all of its civilian employees to work. In addition to those DOD civilians already designated as "excepted," the Administration interpreted H.R. 3210 as permitting the Secretary to recall (and start to pay) those DOD civilians "whose responsibilities contribute to the morale, well-being, capabilities and readiness of service members." This revision of DOD's Contingency Plan would increase the number of DOD civilians returning to work from roughly 50% to about 95%, according to DOD Comptroller Robert Hale. As the services and DOD components implement this decision, civilians will return to work starting this week, and be paid on time under H.R. 3210.
DOD is continuing to review whether the number of contractor personnel, also covered under H.R. 3210, will be increased. Those defense civilian or contractor personnel who were or remain furloughed would only receive pay for that period if Congress passes legislation to pay furloughed personnel. On October 5, 2013, the House unanimously passed H.R. 3223, which would provide retroactive pay for all federal employees, as occurred during the 1995 to 1996 shutdown. The President has announced his support of the bill. The Senate has not yet taken it up.
On October 10, 2013, in reaction to considerable controversy in Congress, the President signed H.J.Res. 91, Honoring the Families of Fallen Soldiers Act, to provide for payment of death gratuities and other funeral expenses. Both houses had passed the bill unanimously. Previously, the Secretary of Defense had determined that such expenses were not covered under POMA. CBO estimates that the new law would cost about $150 million over the course of a year.
On October 2 and October 3, 2013, the House passed five "mini" Continuing Resolutions (CRs) providing funding for the District of Columbia, NIH, various museums, Veterans Administration disability programs, and pay for non-activated reservists, generally at FY2013 levels including the sequester now in effect. That package includes H.R. 3230, which would expand the number of reservists who would be paid on time from activated reservists (such as those deployed for the Afghan war) who are already covered by H.R. 3210, to non-activated duty reservists who are performing weekend drills. Based on press reports of reactions from the Senate leadership, however, the Senate is not likely to take up the bill.
The authority to continue some activities during a lapse in appropriations is governed by the Antideficiency Act, codified at 31 U.S.C. 1341 and 1342, as interpreted by Department of Justice (DOJ) legal opinions and reflected in Office of Management and Budget (OMB) guidance to executive agencies. Subject to review by OMB, each agency is responsible for making specific determinations on which activities may continue during a shutdown and which may not.
Legally, according to DOJ and OMB guidance, activities that may continue during a lapse in appropriations include (1) activities "necessary to bring about the orderly termination of an agency's functions"; (2) administration of benefit payments provided through funds that remain available in the absence of new appropriations, including, in the case of DOD, military retirement benefits; (3) activities and purchases financed with prior year funds and ongoing activities for which funding has already been obligated; (4) activities undertaken on the basis of constitutional authorities of the President; and (5) activities related to "emergencies involving the safety of human life or the protection of property." The Defense Department attributes its authority to carry on national security-related operations mainly to Section 1342 of the Antideficiency Act, which permits the continuation of activities to protect human life and property.
In addition to military operations, other activities that would continue under a shutdown by virtue of the Anti-Deficiency Act include operation of DOD Dependent Schools, child care centers, and DOD medical activities, including TRICARE services for dependents, but not non-essential services, such as elective surgery in military medical facilities. Passage of POMA considerably broadened the types of support activities, primarily performed by civilians, that would continue during the shutdown. A CBO estimate suggests that POMA appropriated $200 billion, or about one-third or of DOD's $614 billion FY2014 request.
The roughly 5% of DOD's civilians who would continue to be furloughed continue to face a pay gap, potentially imposing hardships on many families, unless legislation providing retroactive pay is enacted. Contracting activities that supported military activities and payments to vendors derived from prior multiyear appropriations could also continue. The status of many contractor personnel remains unclear. While some new contract obligations to support "excepted" activities could be signed, monies could not be disbursed while other new contracts would be delayed. This could create some confusion and, potentially, disruptions to supplies of some material and services, particularly if full funding for DOD is not restored soon.