One Independence Square | 250 E Street, SW | Washington, D.C. 20427 | 202-606-8100 | www.fmcs.gov

FEDERAL MEDIATION AND CONCILIATION SERVICE

OFFICE OF THE DIRECTOR

MEMORANDUM

TO: Office of Management and Budget

FROM: Gregory T. Goldstein, Chief Operating Officer, performing the duties of the Director

DATE: November 13, 2023

RE: Lapse Plan for Agency Operations in the Absence of Appropriations

This memorandum establishes a contingency plan that will become operational in the event of a lapse in 

appropriations to fund current activities of the Federal Mediation and Conciliation Service (FMCS). The 

plan provides for an orderly suspension of most agency operations and continuation of limited essential 

functions.

Summary of Agency Functions

FMCS is an independent executive branch agency whose primary mission is to assist parties in labor 

disputes in industries affecting commerce, to settle such disputes through conciliation and mediation, and 

thus to avoid or minimize the disruptive effects of strikes and/or lockouts. FMCS also provides alternative 

dispute resolution services and establishes collaborative labor-management programs. FMCS provides its 

services variously to the private and public sectors, including federal agencies and state and local 

governments.

FMCS’s international work in collaboration with the U.S. Department of State and the U.S. Department 

of Labor includes assisting other nations and foreign organizations with issues relating to effective labor 

relations systems. The agency also maintains and provides aggrieved parties with rosters of arbitrators.

FMCS conducts its core program operations at its Washington, DC, headquarters and in six regions across 

the country.

Except as described in this plan, all agency offices will close, and core operations will cease upon a lapse 

in appropriations. The following offices support FMCS’s core program areas and services:

• Office of the Director

• Headquarters

• Field Operations

• Policy and Strategy
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One Independence Square | 250 E Street, SW | Washington, D.C. 20427 | 202-606-8100 | www.fmcs.gov

Lapse Plan Summary Overview

Estimated time (to nearest half day) required to complete shutdown activities: 0.5

Total number employees expected to be on board before implementation of the plan: 200

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

Necessary to perform activities expressly authorized by law: 8

Necessary to perform activities necessarily implied by law: 5

Necessary to the discharge of the President's constitutional duties and powers: 1

Necessary to protect life and property: 0

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

FMCS will continue to provide its services when: 1) the agency head determines that FMCS

services are necessary to protect life or property; and 2) such threat to life or property is 

imminent and an immediate response is necessary to avoid or minimize the disruptive effects of 

a work stoppage, strike, lockout, or similar event. The agency head will determine the need for 

its services on a case-by-case basis, pursuant to applicable legal standards and this plan, from 

among a limited number of cases.

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

Upon a lapse in appropriations, FMCS will suspend all core operations and services and all 

activities of supporting internal offices, with the exception noted above.

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

FMCS will continue to provide its services when: 1) the agency head determines that FMCS services are 

necessary to protect life or property; and 2) such threat to life or property is imminent and an immediate 

response is necessary to avoid or minimize the disruptive effects of a work stoppage, strike, lockout, or 

similar event. The agency head will determine the need for its services on a case-by-case basis, pursuant 

to applicable legal standards and this plan, from among a limited number of cases.

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

Upon a lapse in appropriations FMCS will suspend all core operations and services and all activities of 

supporting internal offices, with the exception noted above.

Legal Standards Applicable to Determinations Under the Contingency Plan

The United States Constitution provides, "No money shall be drawn from the Treasury, but in 

Consequence of Appropriations made by Law[.]" U.S. Const. art 1, § 9, cl. 7. The Antideficiency Act (the 

Act) prohibits officers and employees of the Federal government from incurring obligations in advance of 

appropriations except where such obligations are authorized by law. 31 U.S.C. § 1341 (a)(1)(B). The Act 

further prohibits officers and employees of the Federal government from employing personal services 

exceeding those authorized by law except for emergencies involving the safety of human life or the 
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One Independence Square | 250 E Street, SW | Washington, D.C. 20427 | 202-606-8100 | www.fmcs.gov

protection of property. Such emergencies do not include ongoing regular functions of government, the 

suspension of which would not imminently threaten the safety of human life or the protection of property. 

31 U.S.C. § 1342.

The Attorney General has determined that the exception for emergencies under the Antideficiency Act is 

narrow and must be applied only where there is: 1) a reasonable and articulable connection between the 

function to be performed and the safety of human life or the protection of property; and 2) some 

reasonable likelihood that the safety of human life or the protection of property would be compromised in 

some significant degree by delay in the performance of the function in question. Accordingly, "the 

emergencies exception applies only to cases of threat to human life or property where the threat can be 

reasonably said to the [sic] near at hand and demanding of immediate response." Memorandum for Alice 

Rivlin, Director, Office of Management and Budget, August 16, 1995.

The Attorney General has also opined that agencies are by necessary implication authorized to incur those 

minimal obligations necessary for the orderly termination of functions that may not continue during a 

period of lapsed appropriations. See "Applicability of the Antideficiency Act Upon a Lapse in an 

Agency's Appropriations," 4A Op. O.L.C. 16 (1980); "Authority for the Continuance of Government 

Functions During a Temporary Lapse in Appropriations," 5 Op. (1981). The Attorney General has further 

noted that, with respect to any short lapse in appropriations, it is appropriate for an agency to assume in 

its analysis of emergencies that the private economy will continue operating during the lapse. 

Memorandum for Alice Rivlin, ibid.

Agency Functions that Will Continue During a Lapse in Funding as Excepted Activities

FMCS will continue to provide its services when: 1) the agency head determines that FMCS services are 

necessary to protect life or property; and 2) such threat to life or property is imminent and an immediate 

response is necessary to avoid or minimize the disruptive effects of a work stoppage, strike, lockout, or 

similar event. The agency head will determine the need for its services on a case-by-case basis, pursuant 

to applicable legal standards and this plan, from among a limited number of cases.

The number of cases the agency head will consider is presently limited to fewer than two percent of cases 

that, absent a lapse in funding, are otherwise eligible for mediation. From among these cases, the agency 

head will provide mediation services only where it is determined that failure to offer mediation services 

poses an imminent threat to life or property.

The agency head estimates that, to provide these excepted services, the agency will need to retain 

employees in the job categories and full-time equivalents as follows as determined by a specific 

requirement (aside from the agency head, who will continue working) up to: two (2) employees in the 

Office of the Director; three (3) headquarters personnel; and eight (8) field operations personnel.

Orderly Shutdown Activities

In the event of a funding hiatus, the agency will proceed with the orderly shutdown of non-excepted 

activities beginning on the first day of the hiatus. The agency head will authorize only actions that will 

contribute to an orderly shutdown, with primary consideration given to protecting life and safeguarding 

government property and records.

The agency head estimates that the orderly shutdown of non-excepted operations will require not more 

than one-half workday. The agency head's intention is to accomplish shutdown in a way that will facilitate 

prompt reactivation when funds are made available:

1. The agency head will notify the Office of Management and Budget (OMB) immediately when 

shutdown activities are being initiated, by notice to the OMB Labor Branch Chief.
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One Independence Square | 250 E Street, SW | Washington, D.C. 20427 | 202-606-8100 | www.fmcs.gov

2. The agency head will limit obligations incurred to those needed to maintain the minimum level of 

essential activities necessary to protect life and property; to process necessary personnel actions; and to 

process the personnel payroll for all periods prior to fund interruption.

3. The agency head will notify agency senior managers of the hiatus and will direct them to begin 

shutdown activities.

4. The agency head will determine what specific services and personnel are essential and therefore 

excepted from suspension and, where applicable, the duration of each exception. The agency head will 

notify affected senior managers of the final determination.

5. The agency head will instruct the Director of Human Resources to take necessary personnel actions to 

notify employees of the suspension of agency operations and to release employees in accordance with law 

and OPM regulations, including the preparation of notices of furlough and processing of personnel and 

pay records in connection with furlough.

6. The Director of Human Resources will notify all employees that they should report for work as 

scheduled on the first workday of the hiatus. Managers or supervisors will inform employees of the status 

of funding and instruct them to limit their work activities to those functions necessary for the orderly 

cessation of operations. The Director of Human Resources will notify all employees that no work can be 

performed on a voluntary basis. The Director of Human Resources will also provide employees with 

electronic links to OPM guidance.

7. The Director of Human Resources will notify all employees of the impact of the furlough on all 

employee benefits, including unemployment compensation, health insurance, leave accrual, retirement, 

and life insurance, and will advise all employees to follow public news broadcasts and the OPM and/or 

OMB websites for notice of the end of the hiatus.

8. The manager of each office or division will notify absent employees of the furlough as soon as 

possible. Managers should contact employees in travel status and advise them to return to their duty 

station immediately.

Termination of Hiatus in Funding

OMB will notify the FMCS agency head when the hiatus of appropriations has ended, and when the 

agency head in turn can advise all senior managers. Each manager will contact employees that they

supervise by phone or e-mail to inform them that the hiatus has ended and to advise them that employees 

are required to return to work on their next regular duty day.