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Hobbs Straus successfully defended a former casino workers’ suit against a Tribe in a Tenth Circuit case finding absence of federal jurisdiction over non-Indian contract and tort disputes arising in Indian country. (2009)

General Memorandum 13-083

General Memorandum 13-083
House Approves FY 2014 Continuing Resolution; Senate to Vote Next Week

On September 20, 2013, the House of Representatives approved and sent to the Senate a fiscal year (FY) 2014 Continuing Resolution (CR), H. J. Res. 59, which would fund federal agencies through December 15, 2013. It does not contain the provision recommended by the Office of Management and Budget but opposed by Indian Country to impose contract support costs caps on individual Indian Self-Determination Act agreements.

H. J. Res. 59 would permanently de-fund the Affordable Care Act (ACA), something the Senate Democrats will not support and that would draw a Presidential veto in any event. The bill would also provide that when the debt limit is reached (expected mid-October) the federal government can continue to borrow money, but only to make principle and interest payments and obligations to the Social Security Trust Fund.

Funds Provided at FY 2013 Post-Sequester Levels. H. J. Res. 59 would provide funding at the FY 2013 post-sequester level of $986.3 billion, a figure that is a compromise between the House Budget Resolution cap of $967 billion and the Senate Budget Resolution cap of $1.058 trillion. Funds would generally be provided on a pro rata basis at the FY 2013 levels under the authority and conditions of the FY 2013 Appropriations Act.

Limitations on the Distribution of Funds. Funds would not be distributed for programs that may have high initial rates of operation or for which funds are fully distributed at the beginning of the fiscal year based on the possibility that Congress might eliminate or reduce funding for that particular program. With regard to distribution of funds during the period covered by the CR, the bill states: "this joint resolution shall be implemented so that only the most limited funding action of that permitted in the joint resolution shall be taken in order to provide for continuation of projects and activities." However, agencies will be allowed to apportion funds in a manner that would avoid furloughing employees.

Mandatory Funding Programs. Funding for entitlement and mandatory payments which were provided funding for FY 2013 and activities under the Food and Nutrition Act would be continued at a rate to maintain current program levels. The bill would continue the current pay freeze for federal employees and extend the authorization for the Temporary Assistance for Needy Families program through the period of the CR.

Anomalies. As mentioned above the bill does not include a provision to place contract support costs caps on individual Indian Self-Determination Act agreements. But it does contain anomalies (things that do not adhere to FY 2013 funding levels and/or conditions) including:

• $600 million increase for Forest Service firefighting
• $36 million increase for Interior Department firefighting ($15 million would be allocated for burned-area rehabilitation)
• An additional $471 million for Social Security Administration disability reviews
• $2.5 billion for the Veterans Benefit disability claims processing
• $1 billion for federal court Defender Services

Affordable Care Act. Conservative House Republicans are dedicated to de-funding the Affordable Care Act and succeeded in getting such a provision in the House-passed CR. H. J. Res. 59 incorporated the text of HR 2682, the Defund Obamacare Act of 2013, sponsored by Representative Graves (R-GA) which reads in part:

Notwithstanding any other provision of law, no Federal funds shall be made available to carry out any provisions of the Patient Protection and Affordable Care Act (Public Law 111-148) or title I and subtitle B of title II of the Health Care and Education Reconciliation Act of 2010 (Public Law 111-152), or of the amendments made by such Act.

We note that the Indian Health Care Improvement Act was permanently reauthorized in Title X of PL 111-148 by incorporating via reference the text of the Senate-passed Indian health bill, S 1790.

The Senate is likely to vote on the House-approved CR on September 24 when Democrats intend to strike the ACA language and send it back to the House for a vote. It remains to be seen what parliamentary maneuvers will be needed to succeed in this. It is by no means certain that the House would approve a bill without the ACA defunding provision even though we would be only one week from the beginning of a new fiscal year and a government shutdown.

We will continue to monitor Continuing Resolution developments. Please let us know if we may provide additional information.

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Inquiries may be directed to:
Karen Funk (kfunk@hobbsstraus.com)
Marie Osceola-Branch (mosceola-branch@hobbsstraus.com)
Moriah O'Brien (mobrien@hobbsstraus.com)

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