Jacob Bogage
@jacobbogage.bsky.social
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White House + econ policy @washingtonpost.com. Bad golfer. [email protected]. Signal: jacobbogage.87.
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![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…](https://cdn.bsky.app/img/feed_thumbnail/plain/did:plc:4ibal4ufwcfcg32o4x3vfdow/bafkreictkdsgo3sqde4z7ounogzyv5d7o7y6iqof62gwhwnap2lpw34lbq@jpeg)
