Obama & Hagel Are Playing Political Games With the Lives of DoD Civilian Employees

I am a Department of Defense (DoD) civilian employee at Wright-Patterson AFB in Ohio. I have been furloughed since Tuesday, October 1 due to the government shutdown. This shutdown was precipitated by Congress’s failure to pass a DoD (or any other) appropriations bill for fiscal year 2014, which began Tuesday. This is a serious failure of Congress (which includes both the House and the Senate) to perform its solemn duties under the U.S. Constitution. This is unacceptable and the members of Congress should be held accountable.

The U.S. Constitution, Article 1, Section 8 grants Congress the power to pay the debts of the United States. Article 1, Section 9, includes the admonition that “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by law . . . .” What this means is that one of Congress’s few constitutionally required functions is to pass appropriations bills to pay the debts of the United States. Congress failed to perform this function prior to the start of this fiscal year, so many government agencies that rely on those appropriations were forced to cease functioning.

This government shutdown is not a complete shutdown of all agencies - it is more of a reduction in functions, as there are statutory exceptions that permit certain government functions to continue in the absence of appropriations, for example, those functions necessary to protect life or property. The Office of Personnel Management (OPM) issued Guidance for Shutdown Furloughs in September 2013. This guidance distinguishes between “excepted” employees who may continue to work during a lapse in appropriations and “non-excepted” employees who are subject to furlough. Excepted employees include employees who are performing emergency work involving the safety of human life or the protection of property or performing certain other types of excepted work. Agency legal counsels determine which employees are designated excepted or non-excepted.

A document entitled “Contingency Plan Guidance for Continuation of Essential Operations in the Absence of Available Appropriations” dated September 2013 contains the rules for determining which activities are excepted or non-excepted in DoD (the version I have states “Planning Purposes Only - Do Not Implement Until Direction from the Deputy Secretary of Defense,” but it was the most current guidance available on defense.gov on October 1). The guidance states:

“Civilian personnel, including military technicians, who are not necessary to carry out or support excepted activities are to be furloughed. Only the minimum number of civilian employees necessary to carry out excepted activities will be excepted from furlough. Positions that provide direct support to excepted positions may also be deemed excepted if they are critical to performing the excepted activity.”

The guidance goes on to list many excepted activities. Relevant to my job - I am a government contract law attorney - military operations and activities, including training and exercises, and activities of forces assigned or apportioned to combatant commands are generally excepted under the guise of protection of life and property and national security. Also excepted is contracting and contract administration in support of excepted activities, and legal support for excepted activities.

According to my furlough notice, my “services are not necessary for the orderly suspense of operations and [I] am not engaged in one of the other excepted functions,” so I was placed in furlough status. I do not concede that even under the September 2013 DoD guidance I should have been subject to furlough. My job is to provide legal support to excepted activities, specifically related to contracts to improve and sustain Air Force fighter aircraft for combat air forces. Under any reasonable interpretation, leadership that valued my contribution should have categorized my job as in direct support of excepted activities. But that didn’t happen. I will remember that.

On October 1, roughly 400,000 DoD civilian employees were furloughed (http://apps.federaltimes.com/mobile/article/310020012). I am not saying that all of those employees should have been categorized as excepted under the DoD guidance, though based on my experience, many of them should not have been furloughed. But the DoD guidance is not really the issue now. On September 30, Congress passed and the President signed into law H.R. 3210, the “Pay Our Military Act.”

H.R. 3210 is an appropriations act for fiscal year 2014, providing appropriations for pay and allowances for active duty military members and pay and allowances for “the civilian personnel of the Department of Defense . . . whom the Secretary concerned determines are providing support to members of the Armed Forces . . . .”  The Secretary of Defense, Chuck Hagel, is the person responsible for making this determination.

Please note at the outset that the language in the law (“providing support”) is broader than the language in the DoD shutdown guidance (“provide direct support”). In interpreting this law, one must first look at the plain language of the law to determine what constitutes “providing support” to the Armed Forces. The online Merriam-Webster Dictionary defines the relevant usage of “support” as “assist” or “help” (http://www.merriam-webster.com/dictionary/support). While this may be too broad of a statement just based on the plain language of the law, the function of all DoD civilian employees is really to support, assist, or help our active duty forces. The aircraft that the contracts I review support are all flown by active duty military personnel. There is no logical argument that I do not provide support to active duty military personnel in my job. I think you will find that is also the case with almost all other civilian personnel at Wright-Patterson AFB, within Air Force Materiel Command (see the AFMC Mission described at http://www.af.mil/AboutUs/FactSheets/Display/tabid/224/Article/104481/air-force-materiel-command.aspx), within the Air Force, and within the Department of Defense.

To the extent there is any confusion about the meaning of the plain language of H.R. 3210, one can look to the legislative intent behind the legislation. This can be found in a couple of places. The first place is the Congressional Register, which includes a transcript of the House debate of H.R. 3210. Here is what Congressman Coffman from Colorado, the author of H.R. 3210, said on the House floor:

I have introduced this legislation in order to ensure that our military is not used as a political pawn in negotiations between the United States House and the Senate.

My legislation, H.R. 3210, the Pay Our Military Act, ensures that until such time as the President signs a continuing resolution, our military and the Department of Defense civilians and contractors who support our men and women in uniform will continue to be paid, regardless of a shutdown.

(159 Cong. Rec. H6007, available at http://www.gpo.gov/fdsys/pkg/CREC-2013-09-28/pdf/CREC-2013-09-28-pt1-PgH6002.pdf). That sounds pretty clear. The legislative intent was that the language in this bill be interpreted very broadly to protect DoD civilian employees from the effects of a government shutdown.

Another indication of the legislative intent are the numerous statements from congressman after the passage of the bill into law. I will get to those in a moment. Let me first make one point clear: H.R. 3210 was passed by both houses of Congress and signed by the President before DoD issued any furlough notices on October 1. In other words, it was the law of the land. The U.S. Constitution, Article II, Section 3, requires the President to “take Care that the Laws be faithfully executed . . . .” After H.R. 3210 became law, the President had a responsibility under the Constitution to direct Secretary of Defense Hagel to determine which DoD civilian employees provide support to members of the Armed Forces. This should have been done before the issuance of furlough notices, even if it meant Hagel made an initial determination that all DoD civilian employees met the requirements of H.R. 3210 (which would have been consistent with both the plain language and legislative intent of the law, and would not have caused any remotely colorable Anti-Deficiency Act concerns).

I’m not going to go into the whole process of furloughing civilian personnel, but suffice it to say that an agency is required to provide advance notice to employees before a furlough begins when the reason is not due to a lapse in appropriations. With respect to any DoD civilian employees providing support to the Armed Forces, there was not a lapse in appropriations - H.R. 3210 appropriated funds to pay those employees. Therefore, with respect to any employees later determined to be supporting the Armed Forces, the issuance of furlough notices on October 1 did not comply with the law.

Let’s look at some of the statements many congressmen made after H.R. 3210 became law:

“I believe the legislation provides you broad latitude and I encourage you to use it,” wrote House Armed Services Committee Chairman Rep. Howard “Buck” McKeon, R-Calif., in an Oct. 1 letter [available at: http://armedservices.house.gov/index.cfm/files/serve?File_id=22ebe154-1762-48d5-85c4-817bbe427c34] to Defense Secretary Chuck Hagel. “The text does not limit the provision of pay to civilians who were previously categorized by the administration as ‘excepted’ or ‘essential’ for the purposes of Department of Defense operations in the event of a government shutdown.”

(Source: http://www.govexec.com/pay-benefits/2013/10/republicans-slam-pentagon-over-furloughs-defense-civilians/71164/).

House Speaker John Boehner, R-Ohio, issued a statement [available at: http://www.speaker.gov/general/despite-signing-pay-our-military-act-white-house-using-dod-workers-play-political-games] linking to McKeon’s letter, criticizing the Pentagon for “narrowly” interpreting the law so far “against congressional intent.” The headline of Boehner’s statement is “Despite Signing Pay Our Military Act, White House Using DoD Workers to Play Political Games.”

(Source: http://www.govexec.com/pay-benefits/2013/10/republicans-slam-pentagon-over-furloughs-defense-civilians/71164/).

"I was surprised that Secretary Hagel had furloughed anyone" at Wright-Patt because of the language in the bill and the law, [Congressman Mike] Turner said, noting the language authorizes him to keep on anyone who is in support of the armed forces.
 "We're going to continue the fight over the next several days to get the Pentagon to recognize that people working for the armed forces, whether they be uniform or civilian, ought to be at work and ought to be paid."

(Source: http://cdn.localwireless.com/wap/news/text.jsp?sid=59&nid=3616181057&cid=2055&scid=-1&checksum=2813476701). 

Congressman Turner also sent letters to the President and Hagel, which are available from the links at this page: http://turner.house.gov/news/documentsingle.aspx?DocumentID=352108).

There are a number of other statements, a couple of which you can view at the following links:

http://t.co/EKBoOyL0Dz

http://t.co/8riPAaXtnR

So why hasn’t Hagel made the determination to get most or all DoD civilian employees back to work yet? Here are a couple of statements he’s made:

After President Obama signed the bill, Hagel said that lawyers from the Pentagon, Justice Department and Office of Management and Budget are studying the legislation "to see if there's any margin here or widening in the interpretation of the law regarding exempt versus non-exempt civilians." Although unable to say when a decision will be made, "it's a priority that we have and that we're working on right now," Hagel said.

(Source: http://apps.federaltimes.com/mobile/article/310020012).

"Our lawyers believe that maybe we can expand the exempt status," Hagel said. "We don't know if that's the case, but we are exploring that, so that we could cut back from the furloughs some of the civilians that had to leave."

(Source: http://apps.federaltimes.com/mobile/article/310010020; notice that he uses the phrase “exempt status” - that is not the law, but is the much narrower term used in the DoD guidance).

Hagel has said the department’s general counsel is reviewing the law to see what flexibilities exist with respect to keeping more civilians on the job during the shutdown.

(Source: http://www.govexec.com/pay-benefits/2013/10/republicans-slam-pentagon-over-furloughs-defense-civilians/71164/).

What is taking the “exempt” lawyers so long to figure this out? It doesn’t take a genius lawyer to figure out that most DoD civilians should be back on the job, and in fact, should never have been furloughed on October 1 in the first place. Could it have something to do with the fact that most of the people still at work and making these decisions are political appointees?

Just look at what is happening with respect to National Park Service sites:

Numerous other sites around DC have been unnecessarily closed by the NPS and other federal agencies in what critics are labeling a cynical political stunt which only serves to punish the American people.
 In some cases, efforts to shut down these sites actually require more manpower and resources than if they had been left open, highlighting the fact that this is an act of partisan theater by the Obama administration to pin the blame for the government shutdown on Republicans and opponents of Obamacare.

(Source: http://www.infowars.com/barrycades-government-tries-to-shut-down-privately-owned-mount-vernon/). Obama is even trying to close privately owned sites such as Mt. Vernon (see previous link).

Obama wants to make sure people feel the hurt of the shutdown, so he’s directing very public actions to highlight the impacts of Congress’s failure to pass appropriations bills. Do I have any support for this allegation? Yes. Here is one statement from the Wall Street Journal (http://online.wsj.com/article/SB10001424052702303492504579113781436540284.html):

White House officials believe they have the upper hand, citing evidence that some Republicans are buckling under public pressure.

Is that the smoking gun? No. But the article continues:

Said a senior administration official: "We are winning...It doesn't really matter to us" how long the shutdown lasts "because what matters is the end result."

They are winning? [Update: the White House has disavowed this quote, so in fairness I will mention that - but I don't know that I'd trust Jay Carney's word - sounds more like the White House is upset that the press picked up the quote.] So as long as people are blaming House Republicans, it is just fine and dandy with the Obama administration that people feel as much pain and inconvenience as possible.

With this view, it explains why President Obama won't agree to any piecemeal legislation that would keep Veterans Affairs and NIH open during the shutdown. And it explains why President Obama would rather cancel his Asia trip than negotiate with Republicans.
 It's because the White House (or, at least this unnamed official) believe it is "winning" by shutting down the government and blaming Republicans. And when one's winning, he's not likely to change course.

(Source: http://m.weeklystandard.com/blogs/senior-admin-official-we-are-winningit-doesnt-really-matter-us-when-shutdown-ends_759185.html).

[Update 2: Apparently Obama is now trying to close the ocean, as well. Why? "Apparently, according to an anonymous Park Service ranger, “We’ve been told to make life as difficult for people as we can. It’s disgusting.”" What class.]

So how does this tie in to DoD civilian furloughs? Obama is “winning,” so he does not want to see the pain felt by the DoD civilian workforce lessened, as that would lessen the level of outrage and blame that he believes will be directed at House Republicans. I could be wrong, but the evidence in support of my allegation is pretty strong. It’s all a political game.

Now don’t get me wrong, I am very upset with both Republicans and Democrats in Congress. There is no way they should go on vacation just weeks before the end of the fiscal year when they have yet again failed to pass fiscal year 2014 appropriations bills. They have all shown a total lack of competence.

But both parties came together to pass H.R. 3210, and the President signed it into law. The President is now failing to perform his constitutional duty to faithfully execute the law and to take care that Secretary of Defense Hagel faithfully executes the law. It’s time for Obama and Hagel to stop worrying about “winning” their stupid political game and to start faithfully executing the law. The lawyers supposedly looking at H.R. 3210 need to do what DoD lawyers (both civilian and military) are asked to do every day: provide timely, accurate legal advice to their clients so that their clients can accomplish their missions. One of those missions at this difficult time is for Hagel to make the determination required by H.R. 3210 that most, if not all, DoD civilian employees provide support to the Armed Forces and to end this illegal furlough. Then Congress and the President need to get together and negotiate an end to this stupid government shutdown and get our Nation back to work.