Now in its third week, the impact of the current partial federal government shutdown has been widely felt and reported. In addition to the impacts on federal employees subject to furlough (defined in Office of Personnel Management (OPM) regulations as “the placing of an employee in a temporary status without duties and pay because of lack of work or funds or other nondisciplinary reasons”), contractors, and their respective families, significant attention is also focused on federal employees, such as FAA air traffic controllers and TSA security screeners, who are not furloughed but continue to perform their duties in the absence of funding to pay their salaries.

(In OPM-speak, this category of employees receives pay through (now-lapsed) annual appropriations or continuing resolutions but these employees are “excepted” from furlough because their duties are considered essential for the safety of human life and protection of property).

In general, federal employees who are “exempt” from furloughs include workers who are not affected by a lapse in appropriations. This includes employees whose salaries are derived from sources other than annually appropriated funds. For example, according to the Department of Transportation’s December 2018 Shutdown Plan, FAA positions funded from the Airport and Airway Trust Fund or multi-year appropriations are exempt from furloughs. These positions include aviation research, engineering, and development work and airport inspections.

Of FAA’s total workforce of nearly 45,000 employees, the DOT Shutdown Plan specifies that over 24,000 employees are “excepted” from furloughs (e.g., air traffic controllers and individuals responsible for maintenance and operation of navigations aids, airmen medical certifications, and commercial space launch oversight). Of the nearly 45,000 FAA employees, the total number of “excepted” and “exempt” employees is slightly more than 27,000 and the number of furloughed employees is nearly 18,000.

(Of particular interest to attorneys is a decision just issued by the U.S. Court of Appeals for the District of Columbia Circuit, Kornitzky Group, LLC v. Elwell, No. 18-1160, Jan. 9, 2019. In this case, the FAA filed a motion for stay of oral argument due to the current lapse in appropriations. Relying, in part, on the Department of Justice’s shutdown plan, which “assumes that the Judicial Branch will continue to operate through the furlough” and on the Court’s rejection of numerous similar motions for a stay during the October 2013 shutdown, it denied the FAA’s motion).

Many of the aviation activities carried out in the DOT Office of the Secretary will continue to be performed by “exempt” employees. These activities include air carrier economic regulation funded from the two-year Transportation Planning, Research and Development account for which appropriated funds remain available under they are expended (but do not include funding for aviation consumer protection activities) as well as Essential Air Service payments to air carriers and Small Community Air Service Development Program grant awards and administration both derived from the Airport and Airway Trust Fund.

Although the NTSB has posted on its website its procedural guidance for a lapse in appropriations (Operations Bulletin AD-GEN-001, September 30, 2015), it has not issued details on the number of its employees who have been furloughed. Based on the NTSB Chairman testimony at an October 2013 hearing by the U.S. Senate Committee on Commerce, Science, and Transportation on “The Impacts of the Government Shutdown on our Economic Security,” Senate Hearing Report 113-615, the NTSB at that time issued furlough notices to 383 of its 405 employees, failed to launch to 14 transportation accidents that occurred between the date of the shutdown and the time of the hearing, and suspended its work on over 1,000 investigations then underway.

It is our understanding that the NTSB’s current shutdown experiences mirror those that occurred in October 2013. In addition, due to the shutdown, the agency has postponed its public announcement of its new Most Wanted List of transportation safety priorities for the next two years.

Government shutdowns resulting from funding lapses are painful and can have long-term adverse impacts. We look forward to a speedy resolution of the budget impasse.