By Maggie Davis 

As the federal government enters its fifth week of a partial government shutdown, affected agencies are searching for any measure to maintain continuity of core services despite the current lapse in funding. Federal courts are uniquely strained at the moment, with roughly 33,000 employees needed for regular operations and a Constitutional mandate that judges be paid. Thus far, the courts have maintained operations by relying on fees and other available funds, as it has in prior shutdowns. Estimates from the courts’ administration, however, indicate that the judiciary will deplete reserve funding by February 1, 2019. Unless Congress appropriates money before that time, the judiciary will be faced with an unprecedented task of continuing operations with furloughed staff and unpaid essential workers.

With February approaching quickly, federal courts are taking steps toward identifying essential personnel and core functions. Some courts are turning to existing emergency plans for guidance, such as the United States Court for the Southern District of New York, which intends to exercise it the plan developed in response to global fears of a Bird Flu pandemic in 2005.

A 2005 outbreak of H5N1, a highly pathogenic form of avian influenza, spread rapidly throughout Southeast Asia with bird-to-human transmission widely feared. Public health officials at the time warned of an imminent and catastrophic global pandemic that could kill up to 150 million people. In response, President George W. Bush directed his Homeland Security Council to develop a National Strategy for Pandemic Influenza. As part of this strategy, federal courts were advised to review and update their Continuity of Operations Plans (COOP) to incorporate planning assumptions related to pandemic flu. Specifically, the plans assume employee absenteeism will peak at forty-percent (40%) and identify mechanisms to continue essential operations with such a sudden reduction in workforce.

Often, COOP planning emphasizes the need for continued operations to incidents that directly affect an organizations main facility rather than sudden, drastic workforce reduction. The 2005 requirement for federal courts to incorporate a sudden reduction in workforce, though, expanded the COOP planning process to account for such a scenario. Although intended for pandemic response, the core function of the bird flu plan is to maintain government operations with a sudden workforce reduction. The partial government shutdown and dwindling capital reserves of the judiciary lead to the same fundamental need—a need to maintain operations after a sudden reduction of workforce.

For years, emergency management professionals have emphasized all-hazard planning to address this very issue. Instead of focusing on a single hazard, all-hazard planning addresses core functions and outcomes. Framing emergency planning in terms of management consequences rather than responding to specific hazards creates a nimble plan, applicable to unforeseen scenarios. Recently, the Maryland Emergency Management Agency (MEMA) finalized the Maryland Consequence Management Operations Plan (CMOP) to outline agency obligations for responding to any threat or hazard in “a unified fashion, to limit the consequences of the issue.” While the CMOP is designed for operational response, the principles of consequence management are applicable to COOP efforts for agencies.

This prolonged partial government shutdown has greatly diminished the ability of afflicted government agencies from completing their mission. As it continues, more and more agencies must resolve novel consequences to a prolonged lack of funding. Although a resolution to the shutdown would be ideal, previous planning by federal agencies to address some of the consequences of a shutdown—even if done in a different context—will provide some guidance for addressing this self-inflicted crisis within the federal government.