U.S. MERIT SYSTEMS PROTECTION BOARD

SHUTDOWN PLAN

CONTINGENCY PLAN FOR PERIODS 

OF

LAPSED APPROPRIATIONS

Updated 9/28/2023. 
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Table 1. Lapse Plan Summary Overview Less Than 5 Days

Estimated time (to nearest half day) required to complete shutdown activities: Timetable 

and Actions 

in Part II B.

Total number of agency employees expected to be on board before 

implementation of the plan:

190 FTEs

Total number of agency employees expected to be furloughed under the plan 

(unduplicated count):

177 FTEs

Total number of employees to be retained under the plan for each of the following 

categories:

Compensation is financed by a resource other than annual appropriations: 0 FTEs

Necessary to perform activities expressly authorized by law: 2 FTEs

Necessary to perform activities necessarily implied by law: 11 FTEs

Necessary to the discharge of the President’s constitutional duties and powers: 0 FTEs

Necessary to protect life and property: 0 FTEs

Summary of significant agency activities that will cease during a lapse:

During a lapse in appropriations MSPB will cease all its significant agency activities: protecting 

the Federal merit system through case adjudication, performing merit systems studies, and 

reviewing significant actions of the Office of Personnel Management.

Summary of significant agency activities that will continue during a lapse:

MSPB activities would be limited to those activities necessary to preserve MSPB property, 

including property in the form of data. Additionally, MSPB’s three Board Members, appointed 

by the President and confirmed by the Senate, are not covered by the leave system, cannot be 

placed in a non-pay/non-duty status, and are not subject to a furlough.

MSPB has 11 employees who we have designated as “excepted” from being furloughed, as they 

are performing work that supports or supervises the work of agency contractors that are 

continuing their work (work related to the launch of our e-appeal adjudication system that is 

slated to go-live on October 2, 2023, and is essential to continuing the mission of our agency 

and providing adjudication services to the public). The work of these agency employees is 

necessarily implied under the contract. MSPB has an additional 5 FTEs who have been 
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designated as “excepted” and may be called upon during a shutdown to perform discrete human 

resources, budget and legal related tasks.
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Table 2. Lapse Plan Summary Overview Greater Than 5 Days

Estimated time (to nearest half day) required to complete shutdown activities: Timetable 

and Actions 

in Part II B.

Total number of agency employees expected to be on board before 

implementation of the plan:

190 FTEs

Total number of agency employees expected to be furloughed under the plan 

(unduplicated count):

177 FTEs

Total number of employees to be retained under the plan for each of the following 

categories:

Compensation is financed by a resource other than annual appropriations: 0 FTEs

Necessary to perform activities expressly authorized by law: 2 FTEs

Necessary to perform activities necessarily implied by law: 11 FTEs

Necessary to the discharge of the President’s constitutional duties and powers: 0 FTEs

Necessary to protect life and property: 0 FTEs

Brief summary of significant agency activities that will continue during a lapse:

See Table 1, above.
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INTRODUCTION

COVERAGE

Pursuant to the Office of Management and Budget (OMB) Circular No. A-11 (2021), this plan 

and its exhibits apply to the orderly shutdown of all Merit Systems Protection Board (MSPB) 

functions and activities in the event of a lapse in appropriations for normal agency operations. 

The plan does not address other unexpected contingencies. The action items set forth in this 

plan may be modified or not implemented based on direction and/or guidance from the 

Administration, including direction and guidance administered by OMB and the Office of 

Personnel Management (OPM).

DEFINITIONS

- “Chief executive and administrative officer” (CEAO): Chairman, Acting Chairman, or 

other individual heading the agency pursuant to MSPB’s Continuity of Operations Plan 

(COOP).

- “Excepted activities”: Activities authorized by law to continue during a lapse in 

appropriations and exhaustion of funds.

- “Exhaustion of funds”: The point at which all available MSPB funds have been obligated.

- “Lapse in appropriations”: The date on which the MSPB has no new funding authority 

due to lack of action by Congress, generally at the beginning of a fiscal year.

- “Shutdown activities”: Those activities necessary to complete an orderly shutdown of the 

agency and to limit operations to excepted activities.

OVERVIEW

The MSPB is an independent quasi-judicial agency of the Federal government charged with 

protecting the Federal merit system through case adjudication, performing merit systems studies, 

and reviewing significant actions of the Office of Personnel Management. In the event of a lapse 

in appropriations, MSPB will cease its significant functions, and limit activities solely to the 

function of protecting MSPB’s own property, including property in the form of data. Unless 

otherwise authorized by MSPB’s CEAO in consultation with OMB, after the completion of 

orderly shutdown activities, MSPB employees will otherwise limit activity to checking email 

once per day during the shutdown.
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PART I

SIGNIFICANT FUNCTIONS TO BE CEASED

A. The Attorney General’s decision of January 16, 1981, and subsequent OMB memoranda 

provide that only excepted functions are to be continued during any appropriations hiatus. 

Excepted functions are defined as those necessary to prevent a compromise to the safety 

of human life or the protection of property. In addition to engaging in these excepted 

functions during an appropriation hiatus, agencies may engage in activities necessary to 

“clos[e] down operations funded by accounts that have not received appropriations.” 

OMB Memorandum M-91-02 (October 5, 1992).

B. Protecting MSPB’s own property, including property in the form of data, is the only 

agency function which appears to meet this definition of excepted activity.

C. Except for the property-protection function, the agency does not generally perform 

excepted functions as defined in Section A. Significant agency activities that will cease 

during a lapse in appropriations include the adjudication of appeals; performing merit 

systems studies; reviewing significant actions of the Office of Personnel Management 

(OPM); litigation; responding to congressional, Freedom of Information Act, Privacy 

Act, or other requests from individuals or entities outside the agency; and any other 

functions unrelated to protecting property. Part II below describes the actions which will 

be required to affect such a shut down.

D. Unless otherwise authorized by MSPB’s CEAO in consultation with OMB, after the 

completion of orderly shutdown activities, MSPB employees will limit activity to 

checking email. MSPB employees will be expected to check their work email once per 

day during the shutdown.
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PART II

STEPS TO COMPLETE SHUTDOWN ACTIVITIES

A. INTRODUCTION

Actions are required prior to, during, and immediately following the exhaustion of 

all available MSPB funds. These actions and the time frames in which they are to be 

performed are set forth below. The date indicated in the checklist represents:

1. Workdays prior to no funds (NF – number of workdays)

2. Date of no funds (NF), and

3. Workdays following no funds (NF + number of workdays).

B. TIMETABLE AND ACTIONS

DATES ACTIONS

NF-6 The ED issues notice to all employees informing them of possible lapse in 

funding, unless instructed by OMB or OPM to withhold communications 

until directed.

NF-5 Pursuant to any direction or guidance issued directly by the 

Administration or through OMB or OPM, and after consulting with the 

CEAO, the ED informs offices of which staff will be authorized to 

perform excepted activities and which excepted activity each employee 

will perform when all funds are exhausted using the criteria established in 

Part I.

The CEAO submits the list of excepted functions to OMB for transmittal 

to Congress, if necessary.

NF-4 Office Directors and Regional Directors (RDs)/Chief Administrative 

Judges (CAJs) confirm emergency contact information for their staff, e.g., 

on wallet cards.

NF-3 The Director of FAM, in consultation with Office Directors and 

RDs/CAJs, identifies those contracts that should be kept in place or 

entered into.

Office Directors and RDs/CAJs require employees in a travel status to 

return to duty station unless travel is for purposes of shutdown activities.
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NF-1 Upon clearance from OMB, the ED issues notice to all employees 

informing them of the exhaustion of all available funds and the possibility 

employees will have to be furloughed. The notice informs employees of 

the steps that may be necessary for the orderly suspension of agency 

activities, that employees will only have up to four hours on the first 

business day after the lapse in funding to complete the steps, that some of 

the steps may be completed in anticipation of a possible shutdown, and 

that with the prior permission of a supervisor the steps may be performed 

remotely after the commencement of a shutdown.

The ED authorizes FAM/HR to prepare furlough notices for distribution 

to employees not being retained to perform excepted functions.

NF The ED notifies Office Directors and RDs/CAJs of those employees who 

will not be furloughed so they can perform excepted activities.

For all other employees, FAM/HR distributes furlough notices to 

employees using their official agency email address requesting affirmative 

acknowledgement of receipt from the employee. Employee receipt may be 

acknowledged by reply email. Employees may receive and acknowledge 

the furlough notice from home.

FAM/HR’s email reminds employees that they may perform only those 

functions associated with the orderly suspension of agency activities, e.g.:

1. Notify outside parties of agency status, including all courts in which 

the MSPB has pending litigation.

2. Cancel meetings, etc.

3. Secure all files.

4. Document status of individual cases and projects.

5. Date stamp and secure all mail received but do not process further.

6. Answer telephones, but only to inform callers of our status and not to 

respond to new business matters unless it is of an emergency nature.

7. Place an out of office message on voicemail and email.

These activities may be performed remotely with the prior permission of a 

supervisor,

The Office of Regional Operations (ORO), the Office of the Clerk of the
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Board (OCB), the Office of Appeals Counsel (OAC) and OGC terminate 

appeal, outreach, and mediation proceedings. The Office of Policy and 

Evaluation (OPE) terminates studies and surveys.

OGC reminds all employees of the ethics restrictions regarding outside 

work and of the need to solicit any ethics guidance prior to the beginning 

of a lapse in appropriations when ethics guidance will not be available.

Office Directors and RDs/CAJs remind employees to check email once 

per day during the shutdown.

Office Directors and RDs/CAJs excuse personnel receiving furlough 

notices after they complete shutdown activities.

Director of FAM informs all offices that no obligations can be incurred 

without his/her or FAM/BO’s prior approval.

CEAO submits list of expected function to OMB for transmittal to 

Congress, if necessary.

NF+1 The ED consults with OMB and OPM regarding shutdown activities.

NF+2 to +28 Continue excepted activities as defined and authorized by the CEAO.

NF+29 The ED, after consulting the CEAO, authorizes FAM/HR, if necessary, to 

issue second furlough notices according to MSPB policies and appropriate 

regulations.

The ED, after consulting the CEAO, authorizes the Director of FAM to 

issue termination notices to MSPB contractors and termination notices for 

contracts with vendors/contractors.

Continue excepted activities as defined and authorized by the CEAO.

NF+30 Continue excepted activities as defined and authorized by the CEAO.
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PART III

STATEMENT OF TOTAL NUMBER OF AGENCY EMPLOYEES AFFECTED

Approximately 200 agency employees are expected to be on board before implementation of this 

plan. MSPB personnel will be divided into two categories: (1) employees in non-work (or 

furlough) status and (2) those in a work status performing excepted functions. Employees in the 

non-work category will be furloughed at the time that the agency is required by law to continue 

only excepted activities. Employees in the work category will be retained, but only authorized to 

carry on those excepted activities as defined and authorized by the CEAO.

MSPB currently has no employees in the following categories:

1. Their compensation is financed by a resource other than annual appropriations;

2. They are necessary to perform activities expressly authorized by law;

3. They are necessary to perform activities necessarily implied by law;

4. They are necessary to the discharge of the President’s constitutional duties and powers; 

or,

5. They are necessary to protect life and property (except for data, and only if that 

becomes necessary during a lapse in appropriations).
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PART IV

RESPONSIBILITIES AND AUTHORITIES OF EACH COMPONENT WITHIN MSPB

Chief Executive and Administrative Officer (CEAO):

a. Ensures execution of the Shutdown Plan.

Before lapse

b. Determines the excepted functions of the agency.

c. Submits the list of excepted functions to OMB for transmittal to Congress, if necessary.

d. Approves the list of excepted employees and those to be furloughed.

During lapse

e. Consults with OMB, ED and General Counsel regarding any additional activities that 

may be considered excepted.

Executive Director (ED):

Before lapse

a. Assists the CEAO in determining the agency’s excepted functions.

b. Assists the CEAO with ensuring the implementation of the Shutdown Plan.

c. Provides to the CEAO for approval the list of employees to perform any excepted 

activities.

d. Informs offices which employees will be authorized to perform excepted functions.

e. Issues notice of general information on agency funding to all employees.

f. Sends notice to all employees indicating that all available funds have been exhausted.

g. Authorizes FAM/HR to prepare and to provide furlough notices to be issued to 

furloughed employees.

During lapse

h. Consults with OMB and OPM regarding shutdown activities.

i. Authorizes FAM/HR to prepare and to provide furlough notices, where applicable, to any 

employees initially retained for excepted functions when their services are no longer 

needed.

j. In consultation with the CEAO, and as necessary, designates employees to perform 

excepted functions that were not originally identified.

k. Authorizes the Director of FAM to prepare and issue notices of extended furloughs if 

shutdown exceeds 30 days.
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The Office of the General Counsel (OGC):

Before lapse

a. Assists the CEAO in determining the agency’s excepted functions.

b. Provides the CEAO and MSPB staff with legal advice pertaining to shutdown activities 

or matters stemming from such activities prior to and during a shutdown.

c. Drafts legal responses relating to issues arising from an exhaustion of funds.

d. Defends or provides legal assistance to the Department of Justice to defend the MSPB in 

judicial proceedings arising from a lapse in appropriations or an exhaustion of funds.

e. Consults, as necessary, with the employees’ Professional Association regarding shutdown 

actions that may impact bargaining unit employees.

f. Identifies all pending litigation and notifies courts that the MSPB will be unable to 

participate in those cases during the duration of the shutdown.

g. Issues ethics guidance to employees prior to the furlough.

Orderly Shutdown

h. Secures records and documents the status of cases.

i. Submits final purchase card statement.

j. Secures/closes office.

The Office of Financial and Administrative Management (FAM):

Before lapse

a. Coordinates with OMB and OPM on shutdown preparations and relays any direction or 

guidance to the CEAO, ED, and OGC at the earliest possible time.

b. Reviews lists of employees to be excepted and those to be furloughed to assure that each 

employee’s name appears on either the excepted list or the furlough list.

Orderly shutdown

c. Ensures personnel payrolls for periods prior to funding interruption are processed.

d. Upon authorization of the ED, reviews and ensures issuance of furlough notices to all 

affected employees and any employee initially retained for excepted functions whose 

status subsequently changes.

e. Advises employees to monitor email once a day and notifies employees of their 

obligation to report for work at the beginning of their next regular tour of duty aftersuch 

notification.

f. Directs the processing of personnel records in connection with the issuance of furlough 

notices.

g. Identifies to the ED, the FAM/BO, and the Contracting Officer those contracts that 

should be kept in place or entered into to provide support services (e.g., data backup, 

telecommunications, email, and cellular device services).
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h. Issues “stop work” orders to MSPB contractors for contracts other than those deemed 

excepted when all funds are expended.

i. Secures records and documents.

j. Submits final purchase card statement.

k. Secures/closes office.

During lapse

l. Takes necessary action to adjust allotments as appropriate during periods of lapsed 

appropriations.

m. Ensures that no contractual or other financial obligations are entered into after a lapse in 

appropriations other than those deemed necessary to the shutdown.

n. Ensures that funds are not disbursed.

o. Issues termination notices to MSPB contractors for contracts other than those deemed 

excepted when shutdown exceeds 30 days.

p. Issues or directs, upon authorization of the ED, extended furlough notices to appropriate 

personnel when shutdown exceeds 30 days.

After lapse

q. Takes, in its discretion, additional actions using available resources (e.g., email, MSPB 

emergency information telephone number, MSPB website) to notify employees of 

funding approval, their obligation to return to duty at the beginning of their next regular 

tour of duty, and the availability of workplace flexibilities, if necessary, for employees 

that are unable to immediately return to work.

r. Notifies contractors of the availability of funds and cancels “stop work” ordersfor 

contractors as soon as practicable.

The Office of the Clerk of the Board (OCB):

Orderly shutdown

a. Coordinates and issues a press release on the status of the agency.

b. Coordinates with IRM to update agency website with relevant shutdown information.

c. Notifies administrative law judges to “stop work” on pending cases and suspend related 

activities.

d. Secures records and documents the status of cases.

e. Submits final purchase card statement.

f. Secures/closes office.
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The Office of Regional Operations (ORO) & Regional Directors, and the Office of Appeals

Counsel (OAC):

Orderly shutdown

a. Secures/closes offices.

b. Notifies administrative judges to “stop work” on pending cases and suspend related 

activities.

c. Secures records and documents the status of cases.

d. Submits final purchase card statement.

e. Cancels hearings and court reporters, mediations, and any outreach activities.

f. As necessary, contact parties regarding shutdown.

The Office of Information Resources Management (IRM):

Before lapse

a. Provides instructions for changing voicemail and email out-of-office messages.

b. Determine whether to close e-Appeal Online during the shutdown.

Orderly shutdown

c. Ensures computer operations/shutdown.

d. Suspends password expirations to facilitate orderly resumption of operations.

e. Posts the press release, adds banners to the public website, e-Appeal Online and the 

Extranet.

f. Secures records and documents.

g. Submits final purchase card statement.

h. Secures/closes office.

During lapse

i. Monitors tape backups to ensure they are replaced at appropriate intervals to avoid 

potential data loss.

After lapse

j. Ensures reactivation of idle systems in time for resumption of activities without any data 

loss or interruption.

The Office of Equal Employment Opportunity and the Office of Policy and Evaluation:

Orderly Shutdown

a. Secures records and documents.

b. Submits final purchase card statement.

c. Secures/closes office.