IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
FILED
23-SO-4
SEP '/. 9 2023
IN RE: )
PLAN FOR LAPSE IN APPPROPRIA TIONS )
UNITED STATES DISTRICT COURT FOR ) STANDING ORDER
THE EASTERN DISTRICT OF NORTH )
CAROLINA )
Pursuant to Volume 13, Chapter 2, § 230.50 of the Guide to Judiciary Policy, this Court
adopts the following plan for operating during a lapse in appropriations.
I. Lapse in Appropriations Phases
A lapse in appropriations occurs when (a) neither an annual appropriation act nor a
continuing resolution ("CR") is enacted before the beginning of a fiscal year or (b) a CR expires
during the fiscal year with no follow-on appropriation.
A lapse in appropriations encompasses two possible phases, for purposes of judiciary
operations. Phase 1 is the period when balances from fee collections and no-year appropriations
are used to fund judiciary operations. Phase 2 occurs when balances from fees and no-year
appropriations are exhausted before Congress acts to fund judiciary operations, and the judiciary
has no available funds to continue operations.
II. Phase 1 Plan
During Phase 1, this Court will defer costs that are not mission-critical until the lapse is
resolved, in accordance with the Guide, Vol. 13, Chapter, § 230.50.10. This includes following
the recommended guidelines set forth in the Guide and as specified below:
A. Human Resources
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All employees of the Court will continue to report to work, or continued with scheduled
leave plans, until instructed otherwise. All employees of the Court will remain in full-pay status.
The Court' s Human Resources staff will continue to process personnel actions submitted
under the established biweekly processing schedule.
While some actions may be delayed or deferred (e.g. , new hires and promotions) as not
necessary to the performance of mission-critical responsibilities, any previously-made offers of
employment will be honored. For vacancies in the recruitment stage, the Court will delay making
employment offers until appropriations are in place, unless a position is determined to be mission-
critical by the Chief Judge or Clerk of Court.
B. Criminal Justice Act ("CJA) Panel Attorneys and Service Providers
CJA court-appointed counsel and service providers will continue to provide defense
services as needed, and panel attorneys and service providers will continue to be paid according
to established procedures. CJA vouchers will not be reduced or delayed based on the status of the
judiciary' s appropriations.
C. Travel
Non-essential travel will be postponed. Essential travel includes: (a) case-related travel;
(b) travel related to authorized judicial meetings; and other mission-critical activities, including
travel between divisional offices.
Travel for previously scheduled training may continue if the class registration is non-
refundable, as well as travel for Defender Services training programs that have not been canceled.
Travelers will book fully-refundable tickets whenever possible. Funds that have been obligated for
travel that is canceled or postponed, including individual and blanket travel authorizations, will be
deobligated.
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D. Procurement
Performance of procurement actions that were awarded and fully funded before Phase 1
will continue under the provisions of the procurement action. Performance under incrementally-
funded contracts awarded before the lapse in appropriations also will continue until a new
obligation of fund is requir;ed.
New procurement actions only will be awarded for mission-critical requirements.
E. Facilities and Security
The Clerk of Court will notify the General Services Administration ("GSA") that the Court
will continue to operate during Phase 1. The Clerk or the Clerk's designee will contact local
building managers for information about the impact on building services and building projects.
The Clerk of Court will work closely with the United States Marshal Service and Federal
Protective Service ("FPS") staff on security issues. Deputy U.S. Marshals, Court Security
Officers, and the FPS will continue to provide the Court will the requisite level of security based
on the level of activity at a particular facility.
F. Financial Matters
The Clerk's Office will review unliquidated obligations (e.g., contracts, reimbursable work
authorizations ("RWAs"), travel authorizations) and deobligate balances where appropriate.
Clerk's Office staff will accept and deposit funds collected for filing fees daily. The Clerk's Office
will continue to submit a monthly status-of-funds report.
G. Court Operations
All court hearings, jury trials and grand jury hearings will continue as necessary. The
Clerk's Office will continue to certify payments to grand and petit jurors (i.e., attendance fees,
travel and subsistence allowances) and continue to pay all jurors.
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III. Phase 2 Plan
A. Policy
The United States District Court for the Eastern District of North Carolina is
constitutionally and statutorily required to continue to exercise judicial power regardless of the
status of appropriations. The Court, however, is bound by the strictures of the Anti-Deficiency
Act, 31 U.S.C. §§ 1341-1342, in the event of a lapse in appropriations.
In accordance with the Act, in Phase 2 the Court is required to limit its operations and only
incur obligations and expenditures to perform "excepted activities," which the Guide defines to
include:
(1) activities necessary to the exercise of the judiciary' s constitutional functions, i.e., the
resolution of cases in which there is a constitutional or statutory grant of jurisdiction;
(2) activities addressing emergency circumstances, such that the suspense of the function
would threaten the safety of human life or the protection of property; and
(3) activities otherwise authorized by law, either expressly or by necessary implication,
including:
(A) Constitutional guarantees (e.g., the right to counsel under the Sixth Amendment to
the United States Constitution);
(B) operating entitlement programs; and
(C) executing activities needed for an orderly shutdown of other official functions.
In accordance with these limitations, the Court specifies (1) the excepted activities that will
continue in Phase 2; (2) staff positions necessary to perform the excepted activities; and (3) the
types of contractual services necessary for the Court to perform the excepted activities.
B. Excepted Activities
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Under this Plan, in Phase 2 the Court will continue to:
( 1) hear and decide cases without interruption;
(2) timely file and process all filings, motions, orders, emergency applications, warrants,
and other litigation documents;
(3) collect and deposit fees, costs and criminal debt payments into the Treasury;
(4) disburse restitution or registry funds pursuant to Court order;
(5) accept and process new civil, criminal, and miscellaneous cases;
(6) administer and support the jury and grand jury system, including inputting information
necessary for payment of jurors through the Jury Management System; 1
(7) appoint Criminal Justice Act Panel attorneys to represent eligible persons, as authorized
by 18 U.S.C. § 3006A, authorize expert and other services as appropriate, accept and
review CJA vouchers, and maintain the Court's eVoucher system;2
(8) admit attorneys to the Bar of this court and regulate the Bar;
(9) provide substantive legal analysis and guidance to the Court and Clerk's Office;
(10) maintain the Court's information technology systems, including the Court's
systems network, CM/ECF system, courtroom technology, email, internal and external
websites; and IT security;
(11) provide IT support to judges and court staff;
(12) process incoming and outgoing mail;
(13) coordinate coverage of court hearings by court reporters and interpreters;
( 14) coordinate records management;
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Payment of jurors, however, will be suspended until funding is available. Clerk's Office staff may use
government travel cards to charge travel-related expenditures for jurors as authorized by the Clerk of Court or
presiding judge.
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Payment of CJA vouchers will be suspended until funding is available.
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(15) travel for case-related reasons/
(16) coordinate with local United States Marshal Service, FPS, and GSA staff to
adequately protect the safety of human life and property;
(17) prepare the monthly AO 274, AO 274S, and AO 183 reports; and
(18) provide services necessary for the Court and Clerk's Office to perform excepted
work.
C. Staff Necessary to Perform Excepted Activities
Those employees performing tasks necessary to the constitutional and statutory mission of
the Court are deemed to be excepted employees. Employees who are not deemed to be excepted
employees will be placed in furlough status for the duration of the lapse in appropriations;
employees in furlough status may not report to work. With the exception of employees on
extended leave without pay, employees either will be furloughed and not working, or performing
excepted activities consistent with this Plan.
Any furloughed employee will not be charged leave, except where an employee is on
extended leave without pay before the shutdown furlough. If an employee is on extended leave
without pay before the shutdown furlough, the employee will generally remain in that status during
the shutdown. If the employee is scheduled to return from leave without pay during the furlough
period, the employee will be placed in a furlough status at the end of the leave without pay period,
unless the employee is deemed excepted under this Plan.
The Court and the Clerk' s Office may situationally furlough employees who are designated
to perform excepted activities but who are unable to report to work. If employees cannot be
situationally furloughed, under the Government Employee Fair Treatment Act of 2019, see 31
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Travel must be approved by either the Chief Judge or the Clerk of Court.
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U.S.C. § 3141(c)(3), employees performing excepted activities have the option ofrequesting leave.
Pursuant to 31 U.S.C. § 1341(c)(2), all employees, whether excepted or in furlough status, shall
be paid for the period of the lapse in appropriations at their standard rate of pay when funding is
available.
Each district judge will determine the extent to which his or her chambers staff are
necessary to the exercise of Article III functions. Each district judge must notify the Clerk of Court
if any chambers staff member is to be placed in furlough status. Otherwise, all chambers staff of
district judges will be deemed excepted.
For all other staff members, the Chief Judge and Clerk of Court will review a list of onboard
staff to determine if employee is not excepted, and the Clerk will create a written record of the
review.
E. Contractual services necessary for performance of excepted activities
The following contractual services will need to continue for the Court and the Clerk's
Office to perform the excepted activities specified in the Plan:·
( 1) contracts for court reporters;
(2) contracts for court interpreters; and
(3) contracts for IT services to maintain operations.
The Court will advise the United States Marshal Service and the General Services Administration
of the level of services required to maintain this plan.
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SO ORDERED. This the 2. 'f day of September, 2023 .
RICHARD E. MYERS II
Chief United States District Judge
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