SPEAKERS CONTENTS INSERTS Tables
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57–220
1999
U.S. DEPARTMENT OF JUSTICE'S EXECUTIVE OFFICE FOR U.S. ATTORNEYS, ENVIRONMENT & NATURAL RESOURCES DIVISION, AND EXECUTIVE OFFICE FOR U.S. TRUSTEES
HEARING
BEFORE THE
SUBCOMMITTEE ON
COMMERCIAL AND ADMINISTRATIVE LAW
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED FIFTH CONGRESS
SECOND SESSION
FEBRUARY 25, 1998
Serial No. 120
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Printed for the use of the Committee on the Judiciary
For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office, Washington, DC 20402
COMMITTEE ON THE JUDICIARY
HENRY J. HYDE, Illinois, Chairman
F. JAMES SENSENBRENNER, Jr., Wisconsin
BILL McCOLLUM, Florida
GEORGE W. GEKAS, Pennsylvania
HOWARD COBLE, North Carolina
LAMAR S. SMITH, Texas
STEVEN SCHIFF, New Mexico
ELTON GALLEGLY, California
CHARLES T. CANADY, Florida
BOB INGLIS, South Carolina
BOB GOODLATTE, Virginia
STEPHEN E. BUYER, Indiana
ED BRYANT, Tennessee
STEVE CHABOT, Ohio
BOB BARR, Georgia
WILLIAM L. JENKINS, Tennessee
ASA HUTCHINSON, Arkansas
EDWARD A. PEASE, Indiana
CHRIS CANNON, Utah
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JAMES E. ROGAN, California
JOHN CONYERS, Jr., Michigan
BARNEY FRANK, Massachusetts
CHARLES E. SCHUMER, New York
HOWARD L. BERMAN, California
RICK BOUCHER, Virginia
JERROLD NADLER, New York
ROBERT C. SCOTT, Virginia
MELVIN L. WATT, North Carolina
ZOE LOFGREN, California
SHEILA JACKSON LEE, Texas
MAXINE WATERS, California
MARTIN T. MEEHAN, Massachusetts
WILLIAM D. DELAHUNT, Massachusetts
ROBERT WEXLER, Florida
STEVEN R. ROTHMAN, New Jersey
THOMAS E. MOONEY, SR., Chief of Staff-General Counsel
JULIAN EPSTEIN, Minority Chief Counsel and Staff Director
Subcommittee on Commercial and Administrative Law
GEORGE W. GEKAS, Pennsylvania, Chairman
LAMAR SMITH, Texas
BOB INGLIS, South Carolina
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ED BRYANT, Tennessee
STEVE CHABOT, Ohio
LINDSEY O. GRAHAM, South Carolina
JERROLD NADLER, New York
SHEILA JACKSON LEE, Texas
MARTIN T. MEEHAN, Massachusetts
WILLIAM D. DELAHUNT, Massachusetts
RAYMOND V. SMIETANKA, Chief Counsel
SUSAN JENSEN-CONKLIN, Counsel
JAMES W. HARPER, Counsel
C O N T E N T S
HEARING DATE
February 25, 1998
OPENING STATEMENT
Gekas, Hon. George W., a Representative in Congress from the State of Pennsylvania, and chairman, Subcommittee on Commercial and Administrative Law
WITNESSES
Bucella, Donna A., Director, Executive Office for U.S. Attorneys, U.S. Department of Justice
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Patchan, Joseph, Director, Executive Office for the U.S. Trustees, U.S. Department of Justice
Schiffer, Lois J., Assistant Attorney General, Environment & Natural Resources Division, U.S. Department of Justice
Schreier, Karen E., U.S. Attorney for the District of South Dakota, Vice Chairman, Attorney General's Advisory Committee for U.S. Attorneys, U.S. Department of Justice
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Bucella, Donna A., Director, Executive Office for U.S. Attorneys, U.S. Department of Justice: Prepared statement
Gekas, Hon. George W., a representative in Congress from the State of Pennsylvania, and chairman, Subcommittee on Commercial and Administrative Law: Prepared statement
Patchan, Joseph, Director, Executive Office for the U.S. Trustees, U.S. Department of Justice: Prepared statement
Schiffer, Lois J., Assistant Attorney General, Environment & Natural Resources Division, U.S. Department of Justice: Prepared statement
Schreier, Karen E., U.S. Attorney for the District of South Dakota, Vice Chairman, Attorney General's Advisory Committee for U.S. Attorneys, U.S. Department of Justice: Prepared statement
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Waxman, Seth P., Solicitor General of the United States: Prepared statement
APPENDIX
Material submitted for the record
U.S. DEPARTMENT OF JUSTICE'S EXECUTIVE OFFICE FOR U.S. ATTORNEYS, ENVIRONMENT & NATURAL RESOURCES DIVISION, AND EXECUTIVE OFFICE FOR U.S. TRUSTEES
WEDNESDAY, FEBRUARY 25, 1998
House of Representatives,
Subcommittee on Commercial
and Administrative Law,
Committee on the Judiciary,
Washington, DC.
The Subcommittee convened at 10:00 a.m. in Room 2237 of the Rayburn House Office Building, the Honorable George W. Gekas, Chairman of the Subcommittee, presiding.
Present: Representatives George W. Gekas, [Chairman], Jerrold Nadler, William D. Delahunt, Martin T. Meehan and Sheila Jackson Lee.
Republican Staffers present: Raymond V. Smietanka, Chief Counsel; Susan Jensen-Conklin, Counsel; James W. Harper, Counsel; and Susana Gutierrez, Clerk. Democratic Staffers present: David Lachmann, Professional Staff Member.
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OPENING STATEMENT OF CHAIRMAN GEKAS
Mr. GEKAS. The hour of 10 o'clock having arrived the Subcommittee will come to order.
In the absence of a hearing quorum we will recess until the appearance of one other Member, but we have kept faith with our custom of opening our meetings on time, and now I'm going to recite a few sonnets from Shakespeare until a Member should appear. [Laughter.]
Just to give a kind of a preview of what might happen, we are going to engage in the hearing for which we are all prepared. At the same time we have to keep our ears and eyes open for a call to the floor because another matter in which the Subcommittee is involved will be taking shape there. If that should occur during this hearing, then we may be compelled to recess to go to the floor to manage the bill, which would mean a two or three-hour delay. My best judgment, however, is that we will start this hearing and hope to hear from each of the witnesses. If this big delay should occur, my better judgment tells me that we will dismiss the witnesses and ask to allow your statements to become a part of the record, but then to ask you to acquiesce to written questions that might be submitted to you between now and the time that the Full Committee will be discussing the Justice Department oversight and budgetary problems. So I think that is the best way to handle it. It might be abbreviated and it might not, but in any case whatever questions might have to yet be posed after you leave the Hill, we will at least be able to make a part of the record.
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So we will wait.
We stand in recess.
[Brief recess in place from 10:02 to 10:03 a.m.]
Mr. NADLER.
Ms. JACKSON LEE.
Mr. GEKAS. I would like to recognize the Ranking Minority Member, the gentleman from New York, Mr. Nadler. His presence along with mine constitutes a hearing quorum. We are prepared to proceed with the business at hand.
As everyone recognizes, this is an oversight hearing of three components of the Justice Department that falls within the jurisdiction of our Subcommittee, the U.S. Attorneys, the Environment and Natural Resources Division and the Executive Office of the U.S. Trustees. Each one of them has a separate and vital function in the Department of Justice, and all of them, every article of work that these three components do is important to our citizenry in a thousand different ways.
We will proceed with this, and it is fortuitous because, as I stated at the outset of my brief remarks, it probably will constitute a prelude to the Full Committee's oversight and budgetary hearings on the Justice Department as a whole so we on this Subcommittee will be that much farther ahead in knowing where your three divisions stand in the overall picture.
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I will now turn the microphone over to the gentleman from New York if he wishes to make an opening statement.
[The opening statement of Subcommittee Chairman Gekas follows:]
PREPARED STATEMENT OF HON. GEORGE W. GEKAS, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF PENNSYLVANIA, AND CHAIRMAN, SUBCOMMITTEE ON COMMERCIAL AND ADMINISTRATIVE LAW
We are pleased to conduct today's hearing to hear testimony from representatives of three components of the Department of Justice over which our Subcommittee has oversight jurisdiction. The hearing is particularly opportune since the full Judiciary Committee will soon be conducting hearings and markup on a general authorization of the Department of Justice and the testimony we receive today will be invaluable to our subsequent deliberations as part of that process.
The three components we will examine today are: the Executive Office of United States Attorneys, the Environment and Natural Resources Division and the Office of United States Trustees. While obviously each of these components has separate responsibilities, their efforts can and have related to and supported one another . . . and therefore, I think, it is appropriate for us to hear from them as one panel rather than as individual entities.
The United States Attorney is the chief law enforcement representative of the Attorney General and as such is responsible for not only criminal law enforcement but also engages in most of the civil litigation in which the United States is involved. The Environment and Natural Resources Division represents the United States in prosecution and defense of environmental cases, natural resources, public lands and Indian resources matters. The United States Trustee program is charged with the responsibility of supervising bankruptcy cases and bankruptcy trustees.
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Each of these components is crucial to the proper functioning of our federal government. The United States Attorney protects citizens from violent and white-collar crime, drug trafficking and every other sort of federal crime. The Environment and Natural Resources ensures against the degradation of the quality our life and the United States Trustee program is critical to the smooth operation and honesty of our bankruptcy system.
I think I speak for the Subcommittee when I say that we are predisposed to support every reasonable request for resources to bolster the functioning of these components.
I look forward to hearing today's testimony.
Mr. NADLER. Thank you very much, Mr. Chairman.
I'll make a very short opening statement on my part. Let me simply say I appreciate the attendance of all of those present and we look forward to your testimony.
We are seeing in the daily newspapers every single day it seems observations and criticisms as to how the Office of the Special Prosecutor works, but the U.S. Attorneys of course do 99.9 percent of the prosecuting in the country and we don't see too much evaluation of the U.S. Attorneys' offices work on the front page of the daily newspapers every day, and perhaps that's good.
So in that context I welcome all of you here so we can talk about the important work of all the U.S. Attorneys' offices across the country and as to how we can help that and expedite that and generally exercise our job with respect to it. So I welcome you here and I thank you.
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Mr. GEKAS. We thank the gentleman.
The witnesses gathered at the table are Donna A. Bucella, Director of the Executive Office for U.S. Attorneys; Karen Schreier, U.S. Attorney for the District of South Dakota, who is Vice Chairman of the Attorney General's Advisory Committee for U.S. Attorneys; Lois Schiffer, who is Assistant Attorney General, Environmental and Natural Resources Division; and Joseph Patchan, Director of the Executive Office for the U.S. Trustees. We welcome them, and I think we will start with the individuals as I introduced them. So Ms. Bucella would be first. Each one would be, unfortunately, restricted to a five-minute presentation and, as I stated earlier, your written statements will become a part of the record of these proceedings.
With that, we ask Ms. Bucella to begin.
STATEMENT OF DONNA A. BUCELLA, DIRECTOR, EXECUTIVE OFFICE FOR U.S. ATTORNEYS, U.S. DEPARTMENT OF JUSTICE
Ms. BUCELLA. Chairman Gekas, Congressman Nadler, Congressman Delahunt, I am pleased to be here today with Karen Schreier along with our colleagues, Lois Schiffer and Joseph Patchan. Ms. Schreier and I are here to represent the more than 9,000 men and women of the 94 United States Attorneys' offices and thank you for your ongoing support of our critical law enforcement mission.
The Executive Office for United States Attorneys provides support and administration for the United States Attorneys, their offices and their staffs. The Executive Office deals with the United States Attorneys' offices' operations, budget, management, personnel matters and evaluations. In addition, we are the voice of the United States Attorneys within the Department of Justice. As such, we represent the interests of the United States Attorneys voiced through the Attorney General's Advisory Committee on a whole host of legal and policy issues.
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The work of the United States Attorneys includes criminal law enforcement, affirmative civil litigation and representing the government in defense of civil litigation. The litany of significant cases handled just this past year by our offices represents a remarkable range of issues and subjects. Some of those cases are among the most significant in recent history.
First among them is the Oklahoma City bombing, and on behalf of the rescue workers, the investigators, the prosecutors and the victims I want to thank Congress for your support in the efforts in bringing those responsible for this horrific crime to justice. I was out in Oklahoma City right after the bombing for two months and got an opportunity to observe not only firsthand the devastation caused by the bombing, but the extraordinary cooperative efforts between law enforcement, the locals and the people of the United States of America. We could have only done this by your funding and your support.
Other significant cases that we've had this last year have included the Unabomber case; the World Trade Center bombing; the Luchese and Genovez organized crime cases; the prosecution of the Mexican organized crime figures responsible for bringing drugs into the United States and throughout the United States; the prosecution of the leader of the Bryant Boys, a violent drug trafficking gang that sold massive amounts of crack, heroin and cocaine in New York and were charged with racketeering charges, murder charges, drug trafficking and weapon charges; the prosecution of the computer hacker who made $3.7 million worth of unauthorized transfers to his own account by gaining access to the internal Citibank computer system; the destruction of a massive securities fraud conspiracy in which 16 defendants pled guilty to bilking investors of millions of dollars causing the collapse of a major Internet service provider; and the obtaining of $10.6 million in criminal fines against a pharmaceutical company for defrauding the United States Government.
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These cases and countless others reflect the work that we do every day enforcing our laws and defending our government. The caseload of our offices and the substantive areas, initiatives and programs that we are enforcing continue to grow each day. In fiscal year '97 alone, for example, the United States Attorneys prosecuted 39,000 cases involving 59,000 defendants and filed or responded to 91,000 civil matters. Indeed, we prosecute approximately 95 percent of the Department of Justice's criminal cases and handle more than 70 percent of all civil cases.
And the laws we are enforcing are expanding as well. The United States Attorneys are continuing to mount a vigorous effort against drug trafficking and violent crime; we are enforcing laws against hate crimes; prosecuting church arsons; addressing drug trafficking and immigration issues along our Southwest border; we are using all available criminal and civil tools to aggressively pursue health care fraud; we are combating violence in Indian Country; and we have achieved remarkable success in debt collection and affirmative civil enforcement which return to the government each year more than the cost of operating all of our United States Attorneys' offices nationwide.
Moreover, the United States Attorneys work with the Environment & Natural Resources Division, the United States Trustees and all other components of the Department of Justice, as well as with our local and state counterparts. Indeed, we rely on cooperation with the state and local law enforcement to allow the United States Attorneys to leverage the resources that you give us to exert the greatest impact on crime.
But while we have made substantial gains, there is so much more we can still do. Thus, in addition to our base appropriations request, we are asking for enhancements in four areas.
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For narcotics we are requesting 96 positions—
Mr. GEKAS. Ninety six?
Ms. BUCELLA [continuing]. 96 positions, 64 of which are attorneys, to combat the spreading threat of—
Mr. NADLER. Excuse me. That is an additional 96 positions?
Ms. BUCELLA. An additional 96 positions—to combat the spreading threat of methamphetamine use and to address the growing caseloads generated by the recent increase with DEA and FBI agents.
To address the emerging area of computer crime in which criminals are exploiting the technological advances of recent years to perpetrate thefts, commit acts of terrorism and promulgate child pornography we are requesting 24 attorneys and 12 support positions.
To stem the serious increases in violent crime in Indian Country we are requesting 35 positions of which 26 are attorneys.
And, finally, and importantly, we are requesting 52 attorneys, 9 paralegals and 8 support positions for civil defensive litigation.
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I would like to take a moment to discuss the special concerns I have in the civil defensive area. These positions are critically needed. Our civil defensive litigation protects the Federal treasury from hundreds of millions of dollars of unjustified claims each year, but the United States Attorneys' offices have not received new resources in this area for at least the last 15 years. As our client agencies downsize and our civil jurisdiction expands, more and more of the overall burden of supporting litigation falls on the United States Attorneys' offices and, unlike criminal prosecutions and affirmative civil enforcement where the United States Attorneys may be able to readjust and shift resources from one priority to another, we have no control over the numbers of civil suits filed against the United States Government.
From 1995 to 1997, for example, the United States Attorneys responded to 24 percent more cases while the number of our pending cases grew an additional 18 percent during the same period. These cases include everything from medical malpractice, to Title VII, to prisoner litigation. Moreover, unlike our criminal cases, the United States Government cannot decline prosecution in handling the liability claims.
In addition, the United States Attorneys' civil defensive responsibilities continue to grow. For example, the Federal supported Health Centers Assistance Act of 1992 added employees and contractors of community health centers, hospitals and clinics to coverage under the Federal Torts Claims Act adding to those that we must defend.
We want you to know that all of our requested increases, if given, will be used wisely and well. Our efforts against violent crime, narcotics, fraud and other criminal offenses must be ongoing, and I especially want to emphasize that a similar commitment and effort must be made to the area of civil work.
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Once again I would like to thank the Members of the Subcommittee for your continued support to the United States Attorneys' offices, and I will be happy to answer any questions that you may have.
[The prepared statement of Donna Bucella follows:]
PREPARED STATEMENT OF DONNA A. BUCELLA, DIRECTOR, EXECUTIVE OFFICE FOR U.S. ATTORNEYS, U.S. DEPARTMENT OF JUSTICE
Chairman Gekas, Congressman Nadler, and Members of the Subcommittee, I am pleased to be here today with Karen Schreier, the United States Attorney for the District of South Dakota and Vice Chair of the Attorney General's Advisory Committee (AGAC), along with my colleagues on this panel: Lois Schiffer, Assistant Attorney General for the Environment and Natural Resources Division; and Joseph (Jerry) Patchan, Director of the Executive Office for United States Trustees. Ms. Schreier and I are here to represent the more than 9,000 men and women of the 94 United States Attorneys' offices across the country, and I thank you on their behalf for your ongoing support of our critical law enforcement mission.
OVERVIEW
The Executive Office for United States Attorneys (EOUSA) provides support and administration for the United States Attorneys, their offices, and their staffs nationwide. EOUSA deals with issues involving the United States Attorneys' offices, their overall operations, budgets, management, personnel matters and evaluations. In addition, EOUSA is the voice of the United States Attorneys within the Department of Justice; as such, EOUSA supports and represents the interests of the United States Attorneys, voiced through the AGAC, on a host of legal and policy issues presented within the Department.
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The interests of the United States Attorneys are presented in the work that they do in their offices across the nation: criminal law enforcement; affirmative civil litigation; and representing the government in defensive civil litigation. The litany of significant cases handled just in the past year by the United States Attorneys' offices is truly impressive, and the cases that they have handled represent a remarkable range of issues and subjects. Some of those cases can fairly be described as among the most significant in recent history.
Significant cases included:
the Oklahoma City bombing trials;
the Unabomber case;
the World Trade Center bombing trial;
the Gigante organized crime case;
the prosecution of 32 members of a violent narcotics distribution network supervised and managed by members and associates of the Luchese Crime Family, who pled guilty to various cocaine and crack distribution charges;
the prosecution of the Mexican organized crime figures responsible for exporting to and distributing within the United States vast quantities of narcotics;
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the prosecution of Ronald Ocasio, leader of the Bryant Boys, a violent drug trafficking gang that sold massive amounts of crack cocaine and heroin in New York, for racketeering charges including murder, drug trafficking, and weapons possession;
the prosecution of a computer hacker who made $3.7 million worth of unauthorized transfers to his own accounts by gaining access to an internal Citibank computer system;
the destruction of a massive securities fraud conspiracy in which 16 defendants have pled guilty to bilking investors of millions of dollars and causing the collapse of a major Internet service provider; and
obtaining a $10.65 million criminal fine against a pharmaceutical company for defrauding the government.
These cases, and countless other cases too numerous to mention, reflect the work that the United States Attorneys' offices do every day, enforcing our laws and defending the government. The caseloads of those offices, and the substantive areas, initiatives, and programs that they are enforcing, grow each year. In FY97 alone, for example, the United States Attorneys prosecuted 39,291 cases involving 58,906 defendants and filed or responded to 91,241 civil matters. Indeed, they prosecute approximately 95 percent of the Department of Justice's criminal cases and more than 70 percent of its civil cases.
And the laws they enforce are expanding as well. The United States Attorneys' offices are continuing to mount a vigorous effort against drug trafficking and violent crime; they are enforcing laws against hate crimes; they are addressing drug trafficking and immigration issues along the Southwest Border; they are investigating and prosecuting church arsons; they are using all available criminal and civil tools to aggressively pursue health care fraud; they are combating violence in Indian Country, a subject that Karen Schreier, whose district handles a substantial number of these cases, will speak about during her remarks; they have achieved remarkable successes in their debt collection and affirmative civil enforcement activities, which return to the government each year more than the cost of operating all of the United States Attorneys' offices combined. Moreover, the United States Attorneys work with the Environment & Natural Resources Division, the United States Trustees, and all of the other Department of Justice components, as well as with their local and state counterparts. Indeed, while the United States Attorneys target criminal organizations and crimes that are beyond the resources of our state and local counterparts, reliance on such partnerships and close cooperation with state and local law enforcement allow the United States Attorneys to leverage the resources you give them to exert the greatest impact on crime. And, in all phases of this work, EOUSA promotes the efforts of the United States Attorneys' offices by providing administrative support, policy, legal and legislative guidance, advanced technology throughout the country, and representation in Main Justice.
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But while we have made substantial gains, there is still much more to do. Thus, in addition to our base appropriations request, we are asking for enhancements in our resources in four areas: narcotics, computer crime, violence in Indian Country, and civil defensive litigation. I would like to comment on each one of these in some detail.
1999 BUDGET REQUEST
In developing our 1999 budget request, we worked closely with the Department of Justice law enforcement components, as well our client agencies from other Departments. This request presents a blueprint for the United States Attorneys' offices to provide the best possible services for the American people in Fiscal Year 1999.
We are requesting a total of 236 new positions and a $23.4 million increase for the following initiatives: drug prosecutions, targeting complex drug organizations that attack our neighborhoods and victimize young people; violent crime on Indian reservations where we have exclusive jurisdiction; computer crime, including fraudulent telemarketing operations, child pornography and computer intrusions; and increased civil defensive litigation. Allow me to address each of these in turn.
NARCOTICS
The United States Attorneys continue aggressively to carry out the President's National Drug Control Strategy, which includes the Department's National Methamphetamine Strategy. And as a result, drug cases consume a significant portion of our total resources. During FY 1997, 28 percent of all criminal attorney work years were devoted to drug prosecutions. In FY 1997, 10,378 cases were filed against 23,542 drug defendants, a 15 percent increase over the previous year. An additional 2,059 drug cases involving 991 defendants (classified under our violent crime program) were also filed. If these cases are added to the drug cases above, there is a total of 12,437 drug cases filed against 24,533 defendants in FY 1997. Not only are we doing more as a whole, our AUSAs are doing more individually as well. The average number of drug cases handled per attorney work year increased from 28 in FY 1993 to 34 in FY 1997, and the average number of drug defendants handled per attorney work year increased from 59 in FY 1993 to 69 in FY 1997. That represents a 21 percent increase in productivity in just three years.
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Our request for United States Attorney resources coincides with enhancements requested in 1999 for the Drug Enforcement Administration (DEA) and with resources received by the DEA and the FBI in 1998. Although we received some additional narcotics resources in 1998, we need still more to be able to bring these new cases to their ultimate conclusion: putting drug offenders behind bars. The 96 additional positions requested in our budget, including 64 attorneys, are needed for a comprehensive narcotics initiative.
VIOLENT CRIME IN INDIAN COUNTRY
There is a public safety crisis in Indian Country. The United States Attorneys were asked by the Department to work with tribal leaders and the Department of the Interior to analyze law enforcement problems in Indian Country and to provide the President with options for improving public safety and criminal justice in Indian Country. The United States Attorneys led a series of tribal consultations on Indian Country law enforcement across the country during September and early October of 1997. There was a general consensus, among the 205 Tribes that participated, that law enforcement in Indian Country, as it presently exists, often fails to meet basic public safety needs. They also agreed that serious and violent crime is rising significantly in Indian Country—in sharp contrast to national trends. For example, the violent crime rate in Indian Country is twice that of the rest of the United States. Homicides have risen 87 percent in Indian Country since 1992 while, nationwide, homicides have declined by roughly 16 percent during that time. The homicide rate for Indians is the highest of any ethnic group (2.6 times higher than the white population).
In those districts with Federal enclaves, tribal courts are limited to a maximum penalty of one year for all offenses. For serious crimes, federal prosecution is the only appropriate option for literally thousands of violent crimes. The United States Attorneys are the only game in town. If an exclusively federal case is declined, there is no state court to prosecute the offender.
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The President's 1999 Budget includes a $182 million Indian Country law enforcement initiative for the for the Justice and Interior Departments. As part of this overall initiative to address the public safety crisis on Indian lands, the United States Attorneys are requesting an initial investment of 35 positions, including 26 attorneys, to support 30 investigators that were reassigned and 30 who are being requested for the FBI. In addition, the President's Budget targets $54 million within the COPS program to increase the number of law enforcement officers in Indian Country, and the Bureau of Indian Affairs is seeking a $25 million enhancement for its law enforcement activities on Indian lands. These increases will generate additional work for the U.S. Attorneys.
COMPUTER CRIME
The United States' ability to protect its businesses and its citizens in a global economy depends to an increasing degree upon our ability to deter, detect, investigate, and prosecute violations involving computers and high technology. The United States' technological edge is threatened by domestic and international terrorists, high tech criminals and ingenious computer hackers who steal trade secrets, copyrighted software, and other intellectual property of our nation's businesses. The Software Publishers' Association estimates losses from computer piracy at more than $1 billion per year.
Child pornographers have emerged on the Internet and computer online services. Between 1994 and April 1997, the FBI identified 3,978 people engaging in or attempting to engage in child pornography or soliciting crimes online. As you are aware, Congress enacted the Child Pornography Prevention Act of 1996 that amended the federal child pornography and abuse statutes. The creation of additional offenses, increased penalties, and separate statutory schemes for computer-generated or altered child pornography is an important tool that can be used to prosecute and deter criminals who prey upon children.
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We are requesting funding for 24 new attorney and 12 new support positions to combat computer crime.
CIVIL DEFENSIVE LITIGATION
I'd like to take a few moments now to discuss the special concerns in the area of civil defensive litigation, where we have requested 52 Assistant U.S. Attorneys, nine paralegals, and eight support positions for FY99.
These positions are critically needed. Our defensive civil litigation protects the Federal treasury from hundreds of millions of dollars of unjustified claims each year. Not only have the United States Attorneys' offices not had new resources in this area for a number of years, but, as downsizing occurs in their client agencies, more and more of the overall burden of supporting litigation falls on the United States Attorneys' offices. And, unlike criminal prosecution and affirmative civil enforcement, where, at least in the short run, United States Attorneys may be able to shift resources from one area to another as priorities and demands occur, we have no control over the numbers of civil suits filed against the United States. From FY95 to FY97, for example, United States Attorneys responded to 24 percent more cases—from 44,449 cases to 55,301 cases—while the number of their pending cases grew 18%—from 64,528 to 76,064—during the same period. The work years devoted to civil defensive litigation have increased 23 percent from FY 1993 to FY 1997, without any increase in resources allocated for this responsibility. These cases include everything from major tort cases, such as medical malpractice, to prisoner petitions. Because under law we may not decline nor delegate our civil defensive responsibilities, this 23 percent increase in civil defensive work years has come at the expense of the remainder of our work load.
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The United States Attorneys are requesting additional civil defensive resources in four areas: tort claims; employment discrimination cases under Title VII; prisoner litigation; and social security litigation. I will discuss each of these briefly, beginning with civil torts.
Torts
The largest component of civil defensive litigation is tort litigation, with almost $300 million in disbursements from the Judgment Fund in both FY 1995 and FY 1996. Of that, $146 million in FY 1995 and $134 million in FY 1996 represented payouts in medical malpractice cases.
The Federally Supported Health Centers Assistance Act of 1992 provides that employees and contractors of community health centers, hospitals, clinics and other health facilities, which are partially supported by the Department of Health and Human Services, are considered employees of the Public Health Service entitled to Federal Tort Claims Act protection as the exclusive remedy for torts resulting from the performance of their medical services. Similarly, Congress extended Federal Tort Claims Act coverage to Indian tribes, tribal organizations, Indian contractors and their employees, for certain common law torts including medical malpractice torts at Indian health centers. These cases require additional resources to defend.
In FY 1995, the Administrative Office of the United States Courts (AOUSC) reported an 8 percent increase in the number of medical malpractice cases in which the United States was a defendant and a 6 percent increase in FY 1996. We believe that this caseload will continue to increase over the next several years.
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Employment Discrimination
Let me now turn to employment discrimination suits filed against the United States. In November 1991, Congress enacted substantive amendments to Title VII of the Civil Rights Act of 1964 which, for the first time, allowed plaintiffs to recover compensatory damages up to $300,000, and no longer limited awards to past and prospective lost wages. The Act also provided the right to a jury trial.
Analysis of statistics from the AOUSC and our own Annual Statistical Report suggest that an additional 230 new employment discrimination cases can be expected each year.
Prisoner Litigation
The Bureau of Prisons projects that by the year 1999, the Federal prison population will be 120,974, an increase of 15 percent over the 1996 population of 105,443.
According to estimates by the AOUSC, there are approximately 97 prisoner suits filed per every 1,000 prisoners. With the large increase in the number of prisoners, there will likely be a corresponding increase of over 1,498 new cases filed by 1999. The United States Attorneys have no discretion in these cases; they must represent the United States when it is sued.
Social Security Litigation
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We also can expect a significant rise in Social Security claims under recent welfare reform legislation. Although we seek new methods, such as alternative dispute resolution, to more efficiently meet these new demands, these are cases that the United States Attorneys cannot delegate or refuse to take.
The Social Security Disability cases handled within the United States Attorneys' offices primarily consist of appeals arising from an administrative law judge decision to deny Social Security Disability benefits. These cases require de novo review of lengthy administrative records which typically contain transcripts of prior testimony, extensive medical records, and reports of experts in areas varying from medicine and rehabilitation to economics.
Approximately 10,000 new cases per year have been filed for the last six years. The Social Security Administration (SSA) projects that approximately 14,000 new cases will be filed in FY 1999.
The United States Attorneys anticipate that if the requested civil defensive resources are provided, the result will be an increase in cases handled and resolved in a shorter period of time in prisoner litigation and social security cases; an increase in the number of jury trials resolved in favor of the United States in employment discrimination cases; and an increase in the number of complex cases that are brought to resolution through settlement or trial in tort litigation cases.
CONCLUSION
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The Offices of the United States Attorneys will continue to fight to keep our neighborhoods safe from drugs, violent crime, and computer crime, and to protect the interests of the United States. The United States Attorneys have sustained their leadership roles in our communities by coordinating efforts with federal, state and local law enforcement in fighting crime in our neighborhoods and nationally. We hope to build on our successes in cooperation with this Committee and with its support for the President's 1999 Budget request for the Offices of the United States Attorneys.
We want you to know that our requested increases, if given, will be used wisely and well. Our efforts against violent crime, narcotics, fraud, and other criminal offenses must be ongoing. A similar commitment and effort must be made to our civil work.
Again, I would like to thank you and all members of this Subcommittee for your continued support of the United States Attorneys' offices and I would be happy to answer any questions you may have.
Mr. GEKAS. You should be a Member of Congress. You went over time. [Laughter.]
We acknowledge the attendance of the gentleman from Massachusetts, Mr. Meehan, and the gentleman from Massachusetts again, Mr. Delahunt.
We turn to Ms. Schreier.
And now the lady from Texas, Ms. Jackson Lee has joined us.
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STATEMENT OF KAREN E. SCHREIER, U.S. ATTORNEY FOR THE DISTRICT OF SOUTH DAKOTA, VICE CHAIRMAN, ATTORNEY GENERAL'S ADVISORY COMMITTEE FOR U.S. ATTORNEYS, U.S. DEPARTMENT OF JUSTICE
Ms. SCHREIER. Thank you and good morning, Chairman Gekas, Congressman Nadler and Members of the Subcommittee.
My name is Karen Schreier, and I've been the United States Attorney for the District of South Dakota since 1993. I am honored to be here today with Donna Bucella representing the Attorney General's Advisory Committee and the United States Attorneys around the country. I am also pleased to be here with Assistant Attorney General Lois Schiffer and to meet Mr. Patchan.
The AGAC was created in 1973 by then-Attorney General Elliot Richardson and it was formalized by Executive Order 640-76 dated February 20th, 1976. The 1998 committee has 19 United States Attorneys which represent various judicial districts, geographic locations and small, medium and large offices. Appointments are staggered to ensure the annual rotation of one-half of the committee's membership.
The committee's goal is to give the United States Attorneys a voice in Department of Justice policies and to advise the Attorney General on Department matters. We meet regularly to discuss issues of concern to the United States Attorneys and to discuss Department policies and priorities.
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I would like to take this opportunity to encourage the Subcommittee to support the President's FY 1999 budget request for United States Attorneys, and to emphasize the importance of one part of that request, the need for additional resources to fight violent crime in Indian Country. This is something that my office in South Dakota does every day.
I would like to tell you about one of the cases that our office prosecuted during the last four years. It involved two 18-year-old males and two and 20-year-old males who were drinking at a party all night on one of the reservations. At 7 o'clock the next morning the four left the party in a car along with a juvenile. As they were diving they saw a physically handicapped man who was wearing a leg brace walking along the side of the road. They pulled over and offered him a ride into town. After he got in the car the defendants drove the victim to a nearby residence and beat him. They then pulled his body back into the car and drove to a nearby junk yard. After arriving at this location they pulled him out of the car again and began striking him with a bat on the back of his head and on his back. Even after the bat was broken some of the defendants picked up parts of the bat and continued striking him. His body was then loaded back into the trunk and the defendants drove the car into town, parked the vehicle and they all ran off. Some time later a neighbor heard the victim in the trunk hitting the sides of the trunk, opened up the trunk and found him in there. Unfortunately, he ended up dying from those wounds.
Unfortunately, this crime is not an isolated incident. According to the 1996 Indian Health Service report the homicide rate of Indian males is three times higher than that for white males and there have been corresponding rises in types of violent crime in Indian Country, including gang violence, domestic violence and child abuse as reflected in the FBI records.
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Most areas of Indian Country, including South Dakota, are under Federal jurisdiction under 18 U.S.C. Sections 1152 and 1153. Federal jurisdiction over offenses by or against Indians in these areas is generally exclusive of state jurisdiction, which means the state does not have jurisdiction to prosecute these offenses, the United States has the primary law enforcement responsibility for addressing serious crimes in those areas.
The Federal Government does have concurrent jurisdiction with tribal courts for felony prosecutions of crimes committed by Native Americans on Indian reservations, but their jurisdiction is limited to a maximum one-year penalty. Similar to other communities in South Dakota, the Indian reservations have experienced a rise in juvenile crime during recent years. The United States Attorneys' office prosecutes juveniles who commit the most serious crimes, juveniles who commit repeatedly violent crimes and juveniles who need rehabilitative services that are not available through the tribal court system. These crimes include homicides, assaults resulting in serious bodily injury, assaults with dangerous weapons, child sexual abuse, larceny, robbery, burglary and car thefts. The number of cases filed by my office against juveniles has increased dramatically just during the last few years.
The crimes committed by juveniles are notably more violent today now than they were 10 years ago, and many juveniles appear to have no remorse for their actions and lack a comprehension of the consequences of their actions.
One of the causes of the increase of serious or repeated juvenile crime in Indian Country is the emergence of gangs on the reservations. All nine of the reservations in South Dakota have noted gang activity. This gang activity is often initiated by juveniles with gang contacts who return back home to the reservation when his or her parents move from another community, such as Denver, Portland, Phoenix, Minneapolis or Rapid City. Kids start dressing in baggy clothes, wearing colors and flashing signs to each other, but these stages then progress into more violent crimes, such as vandalism, assaults, arsons, rapes, drive-by shootings and attempted murders. One gang became involved in devil worship and mutilation of dogs and cats, ultimately resulting in teen suicides increasing on that reservation.
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A second cause of the increase of serious crime is the use of firearms by juveniles. Historically most crimes committed by juveniles on Indian reservations did not involve the use of firearms, but this is now changing. We have experienced increased break-ins by juveniles of licensed firearm dealers and thefts of firearms from those businesses. Juveniles now carry firearms and are committing crimes when armed. The risk to a victim of crime of being seriously injured or killed is much greater when the perpetrator is armed with a firearm.
A third cause of serious juvenile crime is the use of alcohol and drugs by minors. Research has shown that teenagers who use alcohol or cigarettes are more likely to use marijuana, and that those who use these gateway substances are more likely to try hard drugs. We are working together with our reservations in South Dakota to educate both adults and juveniles about gateway drugs.
Juveniles need to charged and adjudicated swiftly so the juvenile realizes that there is a consequence for their criminal activity, and this can only occur if law enforcement resources are adequate to investigate the crime and if prosecutorial resources are sufficient to prosecute the juveniles as well as other criminals.
As Donna indicated, the United States Attorneys' FY-1999 budget requests 26 additional Assistant United States Attorneys and 9 support staff positions to combat violence in Indian Country. This will support the FBI's request for 30 new agents for this purpose as well as significant proposed increases in COPS grants and the Bureau of Indian Affairs law enforcement programs. These additional resources are vital for fighting crime in Indian Country.
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Thank you for this opportunity to appear before you today, and I would be happy to answer any questions.
[The prepared statement of Karen Schreier follows:]
PREPARED STATEMENT OF KAREN E. SCHREIER, U.S. ATTORNEY FOR THE DISTRICT OF SOUTH DAKOTA, VICE CHAIRMAN, ATTORNEY GENERAL'S ADVISORY COMMITTEE FOR U.S. ATTORNEYS, U.S. DEPARTMENT OF JUSTICE
Chairman Gekas, Congressman Nadler, and Members of the Subcommittee, my name is Karen Schreier. I have been the United States Attorney for the District of South Dakota since July 30, 1993, and I am honored to be here today with Donna Bucella representing the Attorney General's Advisory Committee (AGAC) and United States Attorneys around the country. I am also pleased to be here with Assistant Attorney General Lois Schiffer, and to meet Mr. Patchan.
The AGAC was created in 1973 by then-Attorney General Elliot Richardson and formalized by Executive Order 640–76, dated February 20, 1976. The 1998 committee has 19 United States Attorneys who represent various judicial districts, geographic locations and small, medium and large offices. Appointments are staggered to ensure the annual rotation of one-half of the Committee's membership.
The Committee's goal is to give United States Attorneys a voice in Department of Justice policies and to advise the Attorney General on Department matters. We meet regularly to discuss issues of concern to United States Attorneys and Department policies and priorities.
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I would like to take this opportunity to encourage the Subcommittee to support the President's FY 1999 budget request for United States Attorneys, and to emphasize the importance of one part of the request: the need for additional resources to fight violent crime in Indian Country, something my office in South Dakota does every day.
In one of the many cases that our office has prosecuted during the last four years, two eighteen year old males and two twenty year old males were drinking at a party all night long. At 7:00 the next morning, the four left the party in a car, along with a juvenile passenger. As they were driving, they observed a physically handicapped man, who was wearing a leg brace, walk along the side of the road. They pulled over and offered him a ride. After he got into the car, the defendants drove the victim to a nearby residence and beat him. The defendants put the victim back into the car and drove him to a location near a junkyard. After arriving at this location, the group pulled the victim out of the car and the five individuals hit and kicked the victim again. The victim was struck in the back and the head with a bat numerous times. Even after the bat was broken, some of the defendants continued to use pieces of the bat to strike the victim. The victim was loaded in the trunk of the vehicle and the defendants drove the car into town and parked it. The defendants ran off. Although the victim was later found in the trunk alive by a neighbor, who heard the victim pounding on the inside of the trunk, he ultimately died from the injuries.
Unfortunately, this crime was not an isolated incident. According to a 1996 Indian Health Service report, the homicide rate for Indian males is three times higher than for white males and there have been corresponding rises in other types of violent crime in Indian Country including gang violence, domestic violence and child abuse, as reflected in FBI records.
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Most areas of Indian country, including South Dakota, are under federal jurisdiction under 18 U.S.C. 1152, 1153. Federal jurisdiction over offenses by or against Indians in those areas is generally exclusive of state jurisdiction, and the United States has the primary law enforcement responsibility for addressing serious crime in those areas.
The federal government has concurrent jurisdiction with tribal courts for felony prosecutions of crimes committed by Native Americans on the nine Indian reservations in South Dakota. Similar to other communities in South Dakota, the Indian reservations have experienced a rise in juvenile crime during recent years. The U.S. Attorney's Office prosecutes juveniles who commit the most serious crimes, juveniles who repeatedly commit felony crimes and juveniles who need rehabilitative services that are not available through tribal or state court. These crimes include homicides, assaults resulting in serious bodily injury, assaults with a dangerous weapon, child sexual abuse, larceny, robbery, burglary and car thefts. The number of cases filed by my office against juveniles has increased significantly over the last few years.
The crimes committed by juveniles are notably more violent now than ten years ago. Many juveniles appear to have no remorse for their actions and lack a comprehension of the consequence of their actions.
One of the causes of the increase in serious or repeated juvenile crime in Indian country is the emergence of gangs on the reservations. All nine of the reservations in South Dakota have noted gang activity. This gang activity is often times initiated by a juvenile with gang contacts who returns home to the reservation with his or her parents from another community (such as Portland, Denver, Phoenix, Minneapolis or Rapid City). Kids will start dressing in baggy clothes, wearing colors and flashing signs to each other. These preliminary stages have then progressed to violent crimes: vandalism, assaults, arsons, rapes, drive-by shootings and attempted murders. One gang became involved in devil worship and mutilation of dogs and cats, ultimately resulting in teen suicides. The more sophisticated gangs engage in activities to raise money to sustain their organization, including the sale of drugs, burglaries, the theft and sale of weapons and the theft and sale of automobiles.
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A second cause of the increase in serious crime is the use of firearms by juveniles. Historically, most crimes committed by juveniles in Indian country did not involve the use of firearms. This is now changing. We have experienced increased break-ins by juveniles of licensed firearm dealer's businesses and theft of firearms. Juveniles now carry firearms and are committing crimes while armed. The risk to a victim of crime of being seriously injured or killed is much greater when the perpetrator is armed with a firearm.
A third cause of serious juvenile crime is the use of alcohol and drugs by minors. Drugs and alcohol lower a juvenile's ability to resist engaging in criminal activity. Juveniles under the influence of alcohol and drugs have their judgment impaired and are more likely to engage in violent conduct. Research has shown that teenagers who use alcohol or cigarettes are more likely to use marijuana and those who use these ''gateway'' substances are more likely to try hard drugs. We need to work together to educate adults and juveniles about gateway drugs.
Juveniles need to be charged and adjudicated swiftly, so the juvenile realizes there is a consequence for their criminal activity. This can only occur if law enforcement resources are adequate to investigate the crime and if prosecutorial resources are sufficient to prosecute the juveniles, as well as other criminals.
As Ms. Bucella indicated, the United States Attorneys' FY 1999 budget requests 26 additional Assistant United States Attorneys and 9 support positions to combat violence in Indian country. This will support the FBI's request for 30 new agents for this purpose as well as significant proposed increases in COPS grants and in Bureau of Indian Affairs law enforcement programs. These additional resources are vital for fighting crime in Indian Country.
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Thank you for this opportunity to appear before you today, and I would be happy to answer any questions.
Mr. GEKAS. Thank you.
For the benefit of the Subcommittee Members, we have been notified that our Compliance Act is up on the floor and scheduled for the rule in 20 minutes. We do not have to be there for the rule debate it appears. It's going to be an open rule in any event. So our plan tentatively, unless you have contrary suggestions, is, No. 1, to ask that it be postponed to be the second matter on the floor. If that should not occur, we will finish with this hearing, repair to the floor and then reconvene when we can for the purposes of the markup that is also scheduled for our Subcommittee. That's the tentative plan. So we will proceed with the testimony from the witnesses.
Ms. Schiffer.
STATEMENT OF LOIS J. SCHIFFER, ASSISTANT ATTORNEY GENERAL, ENVIRONMENT & NATURAL RESOURCES DIVISION, U.S. DEPARTMENT OF JUSTICE
Ms. SCHIFFER. Chairman Gekas, Congressman Nadler and Members of the Subcommittee, I welcome this opportunity to discuss the Environment & Natural Resources Division. Our litigation is essential to the implementation of Congressional programs, protection of the environment and protection of the public fisc.
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I am particularly pleased to share the desk with people from the United States Attorneys' offices because we have enjoyed a very fine relationship with the United States Attorneys throughout the country.
At the outset two points bear noting.
First, while our client in the cases that we have is the United States, the Division is effectively the lawyer in court for Federal agencies. In each case, we have had a request from a Federal agency to bring an action on its behalf or to defend it in a suit brought or likely to be brought against it. We work closely with these client agencies.
Second, the Division is comprised of talented hard-working, dedicated professionals, lawyers, paralegals and support staff who are public servants in the best tradition. I know from personal experience that they are people committed to their jobs and to their country. I am honored and proud to work with them.
What are the cases we handle? Our cases arise under over a hundred Federal statutes. Much of the Division's work falls into five categories: pollution; cases related to public lands and natural resources; wildlife; condemnation and inverse condemnation cases; and cases related to Native Americans.
The pollution cases include defense of Federal agency regulations, and actions against companies and individuals who have failed to comply with environmental laws; representation of Federal agencies sued for failure to meet the pollution protection standards that apply equally to Federal facilities and the private sector; defending Federal agencies in Superfund money contribution claims; and enforcement cases, both civil and criminal. Our work to protect against pollution also includes a substantial Superfund docket that is separately funded through the EPA budget.
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For public lands and natural resources, we represent land and resource management agencies, including the Department of the Interior and the Forest Service. Much of this work is defending Federal agency actions against court challenges from industry, individual citizens and environmental groups.
Our wildlife docket, predominantly on behalf of the Department of the Interior, the National Oceanic and Atmospheric Administration and the Forest Service, includes affirmative civil and criminal cases to protect wildlife and prevent worldwide smuggling that is valued at $5 billion a year, and cases defending agency actions against challenges related to the Endangered Species Act, fisheries management and other laws.
We have an active condemnation docket handled extensively with the U.S. Attorneys' offices to assure that when the Federal Government acquires property it pays fair market value. We also defend against inverse condemnation claims in the Court of Federal Claims.
Finally, the Native American cases include actions to carry out the United States' trust responsibility to tribes by protecting land, waters and treaty rights involving hunting and fishing, and defending challenges by tribes and individual Indians to agency actions that affect them.
As you can tell from this description, many of the cases on our docket of over 11,000 cases are non-discretionary. In cases funded from the General Legal Activities Justice Department appropriation, almost 65 percent of our attorney time is spent on non-discretionary cases. This defensive work is vital to agency implementation of Congressional priorities and to the protection of the public fisc from invalid or overbroad monetary claims, some of which involve hundreds of millions of dollars.
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The Division is committed to assuring that American taxpayers are getting their money's worth. Despite budget constraints and limited resources, we have achieved significant cost-effective results for the public. We have secured civil penalties and criminal fines for the U.S. Treasury that exceed the Division's GLA budget, and we have obtained benefits for human health and the environment that provide an impressive return on the taxpayer's dollar.
To enhance our effectiveness we have forged partnerships with the U.S. Attorneys' offices and have developed effective working relationships with a number of State Attorneys General and other state and local officials. Although our primary responsibility is to litigate, we seek to settle where possible. We have actively promoted one of Attorney General Reno's top priorities, alternative dispute resolution.
The Subcommittee has also asked that we mention our budget. The Division's money comes from two sources, the GLA budget in the Justice Department and EPA's Superfund budget. Our money from the GLA budget was flat in fiscal years 1996 and '97 which, with cost-of-living and other mandatory increases, is an effective budget decrease of 12 percent. While the fiscal year 1998 budget includes funding for mandatory increases in that year, we continue effectively at 12 percent below our fiscal year 1995 level. Our Superfund allocation similarly has been flat in fiscal years 1997 and '98. As a step toward addressing the constraints of this budget we have instituted a number of reforms, including centralizing document handling and increased use of computer technology. We have also instituted serious budget restraints, including substantial reductions in litigation support in our litigating sections and have reduced personnel.
With a caseload that has not decreased and ever-more-complicated cases, our fine Division staff is very much feeling the pinch and working hard to assure effective protection for the public and the public fisc with limited resources. Our 1999 budget seeks to cover the mandatory increases in that year and seeks an increase predominantly for the extensive defensive litigation that we are anticipating.
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Thank you for this opportunity to appear before you today. I am happy to answer any questions that you may have.
[The prepared statement of Lois Schiffer follows:]
PREPARED STATEMENT OF LOIS J. SCHIFFER, ASSISTANT ATTORNEY GENERAL, ENVIRONMENT & NATURAL RESOURCES DIVISION, U.S. DEPARTMENT OF JUSTICE
Chairman Gekas, Congressman Nadler, and Members of the Subcommittee, I am pleased to be here today, along with my colleagues on this panel: Karen Schreier, the United States Attorney for the District of South Dakota; Donna Bucella, Director of the Executive Office for the United States Attorneys; and Joseph (Jerry) Patchan, Director of the Executive Office for the United States Trustees. I welcome this opportunity to discuss the Environment and Natural Resources Division, one of the principal litigating Divisions within the Department of Justice.
This testimony summarizes the Division's work and provides the Subcommittee with a sense of the scope of our responsibilities. Our litigation is essential to the implementation of Congressional programs and the protection of the public fisc from invalid or overbroad monetary claims against the United States. The Division's career attorneys have built a record that demonstrates their commitment to legal excellence. I am proud to serve with these able lawyers and dedicated public servants.
I would like first to provide an overview of the Division and its docket. Then, I will summarize the resources requested for the Division as part of the Administration's fiscal year 1999 budget.
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I. A DIVISION OVERVIEW
The Division was created in 1909. From the start, the Division represented federal agencies in matters related to federal lands, water issues, and Indian disputes. Over time, our responsibilities have grown to include defensive and affirmative litigation concerning the use of the Nation's natural resources and public lands; wildlife protection; Indian rights and claims; cleanup of hazardous waste sites; condemnation of private property for public purposes; defense of environmental challenges to government activities; and civil and criminal environmental law enforcement.
Our civil cases and many of our criminal cases are referred to us by other federal agencies, either when they request that the Division file an action or when they have been sued. The Division's principal clients include the Departments of Agriculture, Commerce, Defense, Energy, the Interior, and Transportation, and the U.S. Environmental Protection Agency. In addition to these clients, we have represented virtually every other federal agency.
Many of our cases involve defensive litigation. In cases funded from the General Legal Activities (GLA) appropriation, almost 60 percent of our attorney time is spent representing the United States or a client agency sued as a defendant. These defensive cases are non-discretionary. This large defensive docket has important implications for the Division's resources because we cannot always anticipate our future workload. Effective lawyering in these cases is critical to agency implementation of Congressionally mandated programs and protection of the public fisc.
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Our defensive work is as diverse as the statutes passed by the Congress. During fiscal year 1997, for example, we successfully defended against two lawsuits seeking to enjoin the Cassini Space Mission to Saturn; we defended operations at the Department of Energy's Waste Isolation Pilot Plant, a radioactive waste disposal facility in New Mexico; we defeated a challenge to a federal flood control project in Texas; we defended a challenge to the Coast Guard's operations as they relate to federal protections for whales; we defended suits against the Los Alamos National Laboratory; we successfully opposed efforts to enjoin the safe disposal of chemical weapons at the Army's Chemical Agent Disposal Facility in Tooele County, Utah; and we successfully defended against a constitutional challenge to statutory provisions that require those responsible for toxic contamination, rather than taxpayers, to pay for cleanups.
In addition to our defensive work, another significant portion of our docket consists of non-discretionary eminent domain litigation. This important work, undertaken with Congressional direction or authority, involves the acquisition of land for important national projects including Everglades National Park and the St. Louis Courthouse. When our defensive and eminent domain litigation is considered together, in cases funded from the GLA appropriation almost 65 percent of our attorney time is spent on non-discretionary cases.
The Division also engages in affirmative litigation, including civil and criminal environmental enforcement cases. The sections of the Division that handle this affirmative work are described in more detail below.
The Division is committed to ensuring that American taxpayers are getting their money's worth. Despite budget constraints and limited resources, we have achieved significant, cost-effective results for the public. We have secured civil penalties and criminal fines for the U.S. Treasury that exceed the Division's GLA budget, and we have obtained benefits for human health and the environment that provide an impressive return on the taxpayer's dollar. We also have protected the taxpayer from invalid or overbroad monetary claims against the United States, claims that sometimes involve hundreds of millions of dollars.
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To enhance our effectiveness, we have forged partnerships with U.S. Attorneys' Offices. The Division's lawyers are often specialists in their fields, and we work in close connection with lawyers in the U.S. Attorneys' Offices so that the Department may benefit from shared expertise and experience. In that regard, I am pleased to be joined here today with Karen Schreier, the United States Attorney for the District of South Dakota. Her office and attorneys from our Division jointly prosecuted John Morrell and Co., which pled guilty to six counts of criminally violating the Clean Water Act by dumping ammonia into the Sioux River from its slaughterhouse plant and falsifying reports to hide the illegal dumping.
We likewise have developed effective working relationships with a number of state Attorneys General and other state and local officials. Through Law Enforcement Coordinating Committees and other task forces developed in U.S. Attorneys' Offices across the country, we have increased cooperation among local, state, and federal environmental enforcement offices. I also have established the position of ''Counselor for State and Local Affairs'' within the Division to coordinate and enhance our interaction with state and local officials. We approach our work with the spirit of teamwork, cooperation, and federalism that is the hallmark of effective environmental protection.
Although our primary responsibility is to litigate, we seek to avoid litigation where possible. As part of our effort to resolve cases quickly and efficiently, we have promoted one of the Attorney General's top priorities: Alternative Dispute Resolution (ADR). Attorney General Reno issued an order on ADR in April 1995 to promote its use in appropriate cases. Pursuant to that order, the Division issued a directive on September 11, 1995, to encourage the full use of ADR where appropriate. The Division directive provides broad criteria to identify appropriate cases for ADR and directs all Division attorneys to use ADR techniques whenever ADR may be an effective way to reach a consensual result that is beneficial to the United States. ADR may achieve not only cost savings for the taxpayer, but also faster cleanup of pollution and implementation of environmental protections. I established the position of ADR Coordinator within the Division to promote effective use of ADR.
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I will now describe how the Division is organized. The Division is divided into nine litigating sections, supported by an Executive Office:
The Environmental Defense Section defends legal challenges to federal agencies' rulemakings, regulatory decisions, and permit actions under federal statutes that protect the public against pollution. Because federal agencies generally have the same obligations as private parties to comply with the environmental laws, the Section also represents agencies sued by states and citizens groups for violations of environmental laws, and defends agencies in cost recovery actions under the federal Superfund cleanup program. This section also brings affirmative cases to enforce federal wetland protections.
A recent example of this Section's work concerns claims for cleanup costs at the Iron Mountain Mine Site, north of Sacramento, California. A century of mining activities has resulted in major, ongoing releases of acid mine drainage. The company that owns the site, which is also a defendant in a cost recovery action by the United States, counterclaimed against the United States and alleged that the United States is liable for all of the cleanup costs. The Section recently secured a district court ruling that the United States is not liable for the cleanup, saving American taxpayers an estimated $200 million.
The Wildlife and Marine Resources Section is responsible for both civil and criminal cases arising under fish and wildlife conservation statutes. Litigation under these statutes occurs in three different contexts: defense of federal agencies whose programs are challenged as inconsistent with federal conservation statutes; civil enforcement, usually to enjoin persons from violating federal conservation statutes; and criminal prosecutions.
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This Section's portfolio includes our efforts to crack down on international wildlife smuggling. Each year, illegal wildlife shipments valued at approximately $5 billion are traded from country to country. Wildlife smuggling is estimated to generate more profit than illegal arms sales, and it constitutes a worldwide black market second in size only to the drug trade. Wildlife smuggling depletes the national treasures of countries across the globe, and we have launched several effective initiatives to curtail this activity.
The General Litigation Section defends agencies sued under statutes that govern management of National Forests and other public lands, and under the National Environmental Policy Act. The Section also litigates claims filed by Indian tribes against the government and defends against claims in the Court of Federal Claims.
The Environmental Enforcement Section is responsible for civil judicial enforcement of most of the pollution abatement statutes and rules that regulate discharges into the Nation's air and water and that govern pesticide operations, hazardous waste, and drinking water. The Section also has primary responsibility for compelling site cleanup and recovering federal cleanup costs under the federal Superfund program, activity that is funded through EPA's Superfund budget. For example, last year this Section used ADR to obtain a consent decree resolving claims by and against the United States, the State of New Jersey, and 89 private parties for the cost of cleaning up toxic waste in Bridgeport, New Jersey at one of the most technically challenging contaminated sites in the country. The settlement avoided years of litigation and provides more than $221 million for past and future cleanup actions.
Firm and fair enforcement helps ensure that our citizens can breathe clean air, drink pure water, and enjoy our Nation's natural resources; that law-abiding businesses have a level economic playing field on which to compete; and that those who fail to comply with the law know they will be penalized. In fiscal year 1997, our civil enforcement efforts led to substantial injunctive relief and more than $55 million in civil penalties.
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The Environmental Crimes Section plays two primary roles: First, the Section acts as a resource for U.S. Attorneys, the FBI and the EPA, and state and local investigators and prosecutors. The Section provides trained and experienced prosecutors to assist in resource-demanding trials; offers advice and expertise to Assistant U.S. Attorneys and agents in their cases; provides training to improve the environmental criminal enforcement program; and works with U.S. Attorneys' Offices on coordinating committees and on task forces with state and local law enforcement counterparts. Second, attorneys from this section investigate and prosecute criminal violators of federal environmental statutes.
The Indian Resources Section litigates on behalf of Native Americans to carry out the United States' trust responsibility. Recent victories include a landmark Navajo-Hopi settlement, which was implemented by Congressional legislation and we hope will resolve a centuries-old, highly charged land dispute.
The Land Acquisition Section handles the acquisition of property by the process of eminent domain for Congressionally authorized public purposes. For example, over the last several years, Congress has funded the acquisition of land for new federal courthouses in many parts of the country. The Division has litigated and resolved claims involving some of the more significant acquisitions, including the courthouse site in St. Louis.
The Appellate Section handles appeals in cases originating in the litigating sections, and assists the Solicitor General when the Division's cases reach the United States Supreme Court.
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The Policy, Legislation, and Special Litigation Section provides counsel to the Assistant Attorney General, has responsibility for correspondence and Freedom of Information Act matters, is involved in some litigation, and serves as the Division's ethics advisor, legislation coordinator, and Alternative Dispute Resolution coordinator.
II. THE DIVISION'S 1999 BUDGET REQUEST
A. Historical Context: 1995–98 GLA Appropriations
The Division receives its annual appropriation from the General Legal Activities (GLA) portion of the Justice Department's appropriation. In addition, the Division is provided a separate allocation by EPA from its Superfund appropriation. In FY 1998, pursuant to the direction of Congress, EPA will provide approximately $30 million for Superfund-related work. An identical amount has been requested by EPA for FY 1999, a request reflected in the President's budget.
The Division's GLA funding remained flat at approximately $58 million from 1995 to 1997. The failure to provide for mandatory increases, such as increases in salaries and benefits, resulted in a de facto resource cut in 1996 and 1997 of $7,000,000 or about 12 percent. In 1998, we received only the mandatory cost of living increase, bringing our GLA budget to about $60 million, which did not offset the cuts imposed in 1996 and 1997. Thus, through 1998 we continue to operate under a de facto 12 percent cut. To offset that loss, we have instituted serious budget restraints in our litigating sections and reduced personnel. In addition, we have been unable to provide vital litigation support contractor assistance for some of the massive cases which we previously supported.
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B. Litigation Needs
Notwithstanding various austerity and restructuring measures taken in response to these budget cuts, we face a predicament. While our workload and cases have not decreased, the complexity and significance of the cases we are litigating have risen significantly. As noted above, in cases funded from the GLA appropriation, about 65 percent of our attorney time is spent on non-discretionary cases, defensive and condemnation litigation designed to protect Congressional programs and the public fisc. Moreover, recent cuts in the budgets of our client agencies have reduced their ability to provide us with litigation-related support, thereby increasing our duties and workload.
Litigation demands in fiscal year 1999 will include massive litigation in which the plaintiffs seek to impose liability on the government for up to $2.2 billion in cleanup costs at 28 contaminated sites across the country. The plaintiffs in these cases allege that the United States is responsible for cleanup costs due to the contracting activities of many federal agencies during World Wars I and II. These cases could constitute the first in a new wave of litigation in which corporations attempt unfairly to shift the entire burden of cleanup costs to the federal government, potentially exposing the government to more than $10 billion of new liability. Because many of the federal wartime agencies named in the complaints are now defunct, and because the federal agencies with responsibility are not providing meaningful support to the litigation effort, Division attorneys must serve as agency program staff, agency counsel, and trial lawyer in these cases. Litigation support also will be essential to defending against this non-discretionary litigation, which will require, among other things, assessing more than 10 million pages of documents. Any judgment in these cases will be paid out of the Judgment Fund.
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C. The President's FY 1999 Budget Request
The President has requested $67,266,000 for 480 positions for the Environment Division within the Justice Department's GLA appropriation for fiscal year 1999. The increase is necessary to offset mandatory increases and pay for anticipated additional litigation needs, principally in defending federal agencies in the new cases described above.
CONCLUSION
The work of the Division is both challenging and complex. It is vitally important to the implementation of Congressional programs and priorities, to the protection of the public fisc, and to the advancement of the public interest.
I am happy to answer any questions you might have.
Mr. GEKAS. We turn to Mr. Patchan.
STATEMENT OF JOSEPH PATCHAN, DIRECTOR, EXECUTIVE OFFICE FOR THE U.S. TRUSTEES, U.S. DEPARTMENT OF JUSTICE
Mr. PATCHAN. Thank you, Mr. Chairman, Mr. Nadler and Members of the Subcommittee.
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Congress created the United States Trustee Program to permit the separation of the judicial and administrative functions of the bankruptcy system and to establish one accountable agency to oversee the wide-ranging administrative aspects of that system. The Program was recently recognized by the National Bankruptcy Review Commission in its report as being ''an indispensable part of the bankruptcy system.''
The Program has worked hard to ensure the integrity of the bankruptcy process through the appointment and supervision of approximately 1,800 private bankruptcy trustees and by overseeing the administration of cases which this past year reached almost 1.4 million filings. We have contributed to a more efficient bankruptcy system.
In Chapter 11 today approximately 27 percent of all cases reach plan confirmation, a rate that is almost double that of a decade ago, and over 90 percent of all Chapter 11 cases are disposed of within two years.
In Chapter 7, the Program has reduced the backlog of old cases. In 1992 4,000 Chapter 7 cases were over 10 years old. Through improved oversight the number is down today to less than 170 cases. Cases are being administered faster, which means less cost and a greater return to creditors.
The Program also pursues the proper enforcement of the law and defends the system against those who would seek to abuse or defraud it. One way we combat abuse is by employing Section 707[b] of the Bankruptcy Code. In the 11,000 problem cases we identified last year approximately 1,400 motions to dismiss those cases were filed. In addition, many other cases among those 11,000 were voluntarily converted to Chapter 13 or the case was dismissed after we indicated that we intended to proceed with process under Section 707[b].
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But abuse is not limited to debtors. It can also be on behalf of creditors. Recently it was found that certain large national creditors regularly obtained reaffirmation agreements from debtors where agreements were not filed with the court as required by the Bankruptcy Code. Cooperative investigations by the U.S. Trustee Program, U.S. Attorneys, and other Federal and state authorities resulted in multi-state agreements that will provide millions of dollars in restitution to debtors.
Abuse is also a problem at the periphery of the system. Congress passed Section 110 of the Bankruptcy Code to regulate petition preparers and curb bad practices that misled some debtors. We have in the past two years brought some 1,600 actions against 850 bankruptcy petition preparers and 96 percent of those actions were successful.
On the criminal side the United States Trustees refer possible criminal violations to the U.S. Attorneys. We have worked throughout the country to create local working groups of prosecutors and United States Trustees to promote greater understanding of the bankruptcy process. We coordinate with authorities to put together evidence, reconstruct case files and assist in the actual prosecution of cases in some instances when asked. The Program also conducts and participates in bankruptcy fraud training throughout the country educating private trustees, law enforcement officials and others in recognizing the indicia of bankruptcy fraud.
The Program is making progress, considerable progress in improving trustee oversight. In May, for example, we will conduct mediation training for United States Trustees and Chapter 13 standing trustees. This will facilitate our efforts to mediate through ADR any budget expense disputes with standing trustees.
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The Administration's FY-99 budget request, which is spelled out in more detail of course in the written statement, provides the continuing resources necessary to enhance our case administration and bankruptcy fraud efforts. Our money does not come from the public fisc. It comes from user fees.
A critical part of the request is the funding to upgrade our automation system. It will provide the technology needed to develop bankruptcy statistics. The program is well situated to produce statistics of the innards of bankruptcy cases. We in the U.S. Trustee Program, Congress certainly, academics, practitioners, economists and future bankruptcy commissions will be able to know a lot more about who is filing bankruptcy, why they are filing, what is the total value of assets and other questions. We have asked also for a relatively small amount to formalize our bankruptcy training and locate it at the Department of Justice's new Advocacy Training Center in South Carolina.
Mr. Chairman, the pending Bankruptcy Reform Bills will undoubtedly add to the work of the Program, but we do not have within our budget any aspect of that additional work upon our Program.
I thank you for the opportunity to appear and discuss these matters.
[The prepared statement of Joseph Patchan follows:]
PREPARED STATEMENT OF JOSEPH PATCHAN, DIRECTOR, EXECUTIVE OFFICE FOR THE U.S. TRUSTEES, U.S. DEPARTMENT OF JUSTICE
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Mr. Chairman, I appreciate the opportunity to appear before the Subcommittee to discuss the work of the United States Trustee Program.
Congress established a nationwide United States Trustee Program (''USTP'') in 1986 to accomplish two major reforms of the bankruptcy system. One was the separation of the judicial and administrative functions of bankruptcy case administration. These functions were merged under the previous system resulting in perceptions of cronyism, insider abuse, and unfairness. The second reform was ensuring that the wide-ranging administrative aspects of the system, namely the performance of debtors and private trustees, would be committed to one accountable agency.
As a young organization in a burgeoning system, the Program has worked diligently to fulfill Congress' expectations. Although the nature of the United States Trustee's role inevitably draws some criticism from the ranks of those targeted by our actions, the majority of participants and outside observers have concluded that the Program provides the proper balance and oversight needed in today's bankruptcy system. In its report to Congress on October 20, 1997, the National Bankruptcy Review Commission called the United States Trustee Program ''an indispensable part of the bankruptcy system.'' This mirrors the conclusion of the National Academy of Public Administration's Study in May 1995 which reported that the United States Trustee Program ''was established to improve bankruptcy administration and to increase the public's confidence in the bankruptcy system. The overwhelming weight of testimonial evidence supports the conclusion that the Program has achieved this primary mission.''
Today, the United States Trustee Program is responsible for appointing and supervising the conduct of approximately 1800 private bankruptcy trustees and for supervising the general administration of the almost 1.4 million cases filed this past year under chapters 7, 11, 12 and 13 of the Bankruptcy Code. In carrying out its duties, the Program serves as neutral party seeking to enforce the law, ensure the integrity of the bankruptcy system, and to protect the interests of debtors, creditors and the public in a fair, efficient system of bankruptcy administration
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The need for integrity is particularly resonant in bankruptcy because the bankruptcy system depends on honesty and full disclosure by debtors, creditors and professionals in order to resolve disputes and to distribute money and property. The bankruptcy system has the largest case load in the federal court system and touches the lives of millions of Americans. Debtors are expected to be forthright in their disclosures; private trustees are expected to be open and honest in their administration of trust property; attorneys and other professionals are expected to be free from conflicts of interest; creditors too are expected to comply with the requirements of the Bankruptcy Code. In order to preserve the integrity of the system, the Program insists on full disclosure, and pursues those who conceal their ties by whatever means are available to us, both civilly and criminally. This means full disclosure of property and financial transactions if you are a debtor, full disclosure of conflicts of interests if you are a professional, and full accounting for all money and property administered by private trustees. In brief, our role is to illuminate matters and relationships within bankruptcy processes.
The Program also works to preserve the integrity of the system by pursuing the proper enforcement of the law. If a debtor is ineligible for relief or fails to comply with his obligations, we may seek to dismiss the case or to oppose the debtor's discharge. If it appears that an attorney has charged excessive fees, we either ask the court to review those fees or we file a motion in opposition. If we believe the law has been incorrectly interpreted, we seek to appeal the decision.
One principle area in which the Program has helped protect the integrity of the bankruptcy system is in its efforts to combat abuse. The United States Trustees continue to review debtors' cases for appropriate circumstances in which to bring a motion to dismiss cases for substantial abuse pursuant to 11 U.S.C. 707(b). These motions involve a consideration of the debtor's total circumstances including, of course, the debtors' ability to repay creditors. Most recently, for example, the United States Trustee for the Western District of New York prevailed in getting a chapter 7 case dismissed under 707(b) which involved a debtor physician who earned $400,000 a year and sought to maintain an extravagant lifestyle and retain substantial exempt retirement funds. The debtor has appealed the case to the United States Court of Appeals Second Circuit. Similar cases involving substantial abuse are now pending before the Tenth and Eleventh Circuits.
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While abuse is most commonly thought of in terms of debtors, it can take many forms. A year ago December, the United States Trustee in Boston, J. Christopher Marshall, found that Sears, Roebuck and Co. was obtaining reaffirmation agreements from debtors but not filing them with the court as required by the Bankruptcy Code. As a result, debtors were making payments on debts that had been discharged by the court. The initial inquiry started in Boston with a few cases but quickly grew to national proportions. Sears has since entered into consent judgments with the Federal Trade Commission, and the Attorneys General of all 50 States and has settled a class action, all of which calls for at least $125 million to be repaid to affected customers, and $35 million paid to the States plus $5 million for consumer education. The Boston office was actively involved in the negotiations and continues to monitor the reaffirmation process in court proceedings. Other national retailers have been found to be engaged in similar practices. Two weeks ago, the United States Trustee in Seattle, Jan Ostrovsky, announced that Federated Department Stores had agreed to a multi-state settlement worth $14.64 million arising from its improper debt collection practices. The investigation into Federated's practices was conducted jointly by the Washington State Attorney General's Office and the United States Trustee. Pursuant to the settlement, Federated agreed to pay $5 million to customers, forgive $6.9 million in improperly reaffirmed debt and contribute $240,000 to an education fund.
Abuse can also be committed by those who operate on the periphery of the system. For example, the Program has been very active in the area of ''petition mills'' that disproportionately prey on minorities and the poor in our inner cities. Fraudulent petition mills draw customers by claiming that they can easily get rid of debts or stop evictions and foreclosure. People are induced to file bankruptcy. Some did not realize they had filed bankruptcy; others would not have needed bankruptcy if they had received proper counseling. In the Bankruptcy Reform Act of 1994 Congress imposed stringent new requirements on all non-lawyers who prepare bankruptcy petitions for compensation and established new penalties for those individuals who negligently or fraudulently prepare bankruptcy petitions. 11 U.S.C. section 110. During the period from November 1994 to December 1996, United States Trustees filed approximately 1600 actions against approximately 850 petition preparers. Favorable results, some of which included substantial monetary refunds to debtors, were obtained in 96% of all actions pursued to final decision.
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The United States Trustee Program also devotes significant efforts to the problem of bankruptcy fraud. The sheer number of bankruptcy cases poses an obvious challenge, but at same time, highlights the continuing need for aggressive efforts to identify and address fraud. For the period 1996 through September 30, 1997, approximately 170 cases of bankruptcy fraud that were referred by the United States Trustees have been successfully prosecuted. These cover both small and large cases and help to serve as a deterrent for those who may be contemplating bankruptcy fraud.
On December 17, 1997, for example, the United States Attorney Nora M. Manella and United States Trustee William T. Neary announced twenty defendants had been charged with bankruptcy fraud and related charges. The defendants ranged from corporate moguls hiding millions of dollars to individuals who filed false statements and used fake social security numbers. These indictments resulted from the efforts of a strong task force in the Central District of California that meets regularly and involves the United States Trustee working in coordination with the United States Attorney and a number of other Federal and state investigative agencies.
Finally, the United States Trustees take steps to ensure that cases get administered promptly, effectively, and fairly. Today, approximately 27% of all chapter 11 cases are being confirmed, a rate that is about double the rate of a decade ago. More than 60% of all chapter 11 cases are either converted, dismissed or confirmed within the first year of filing; over 90% of them are disposed of within 2 years. The United States Trustees have been instrumental in helping to move these cases through the system. United States Trustees meet with debtors shortly after a case is filed to make sure the debtor knows what is expected in chapter 11 and to gather information about the general condition of the debtor's financial situation. Monitoring the progress of the case and the debtor's financial condition, the United States Trustees move promptly to get the case out of chapter 11 if the debtor is not complying with the Bankruptcy Code or is unable to reorganize.
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The Program has also taken steps to reduce the backlog of open chapter 7 cases. Reducing the backlog of old cases is critical given that ''at almost every level of case size, the longer a case [takes] to close the smaller the percentage of total receipts paid to creditors,'' and the ''larger [the] percentages of receipts [paid] for professional fees.'' U.S. General Accounting Office, Bankruptcy Administration: Case Receipts Paid to Creditors and Professional, July 1994, at 16–17. The results of the Program's efforts have been substantial. In 1992, there were approximately 4,000 chapter 7 cases that had been lingering in the system for over 10 years. Today there are less than 170 cases that are over 10 years old.
We attribute much of our success in reducing the backlog of chapter 7 cases to a vigorous regime of oversight whereby we audit and evaluate trustees, follow up on deficiencies, ensure that old cases are closed promptly, and initiate action when private trustees fail to comply with their obligations. United States Trustees also regularly review all semi-annual reports filed by trustees, and all final reports and final distribution reports in chapter 7 asset cases. We evaluate cases to determine whether a motion to dismiss for substantial abuse should be filed under 11 U.S.C. 707(b) or whether a complaint to bar the debtor's discharge should be pursued, and review a range of other matters affecting the proper administration of chapter 7 cases.
In chapters 12 and 13 of the Bankruptcy Code, the Program has also undertaken significant actions, primarily with respect to the roughly 200 standing trustees who are appointed to administer these cases.(see footnote 1) The Program is charged by statute with establishing compensation levels and reviewing standing trustee expenses to ensure debtor funds are used only for actual, necessary expenses.
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In 1997 the Program promulgated two rules designed to improve the efficiency and integrity of the bankruptcy process.
One rule creates standards governing the qualifications for appointment as a standing trustee and establishes standards of conduct required of a standing trustee. The rule became final June 2, 1997. Among other provisions, the rule prohibits standing trustees from hiring relatives and from engaging in dealings with themselves and related parties. To minimize disruption, existing spouses were ''grandfathered'' in while other requirements are to be implemented over a period of time to allow for a transition.
The other rule formalizes administrative review procedures regarding the suspension and termination of future case assignments to panel and standing trustees. The rule became effective November 3, 1997, and enables a trustee to seek review by the Program Director of a decision of a United States Trustee to suspend or terminate case assignments. If not satisfied with the decision of the Director, the trustee may seek judicial review in the district court under the Administrative Procedure Act.
We want to stress the importance of the United States Trustees' appointment and oversight of private bankruptcy trustees. All chapter 7 panel trustees and chapter 12 and chapter 13 standing trustees go through background and credit checks, periodic reviews and audits, annual evaluations, and have regular contact with the Office of the United States Trustee. By all accounts, including those who testified before this Subcommittee last October, the United States Trustees have improved the caliber and professionalism of the corps of private trustees. When problems arise, the nature of our oversight process provides trustees with advance notice about the problems or deficiencies in their administration of cases. Before a decision to terminate case assignments is made, case trustees are usually given an opportunity to address those concerns with the United States Trustee. We recognize that trustees may not always agree with the United States Trustee's decisions, therefore, the new rule formalizes a procedure by which trustees may seek swift, fair review from the Director, and gives them the ability to challenge those decisions in district court.
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II.
The Administration's FY 1999 request for the United States Trustee Program totals $131,144,000. The request includes enhancements in several areas:
$4,489,000 and 100 positions to address the increase in bankruptcy filings that we anticipate will occur over the 1998–1999 period in chapters 7 and 13;
$1,050,000 and 20 positions to support our work in regard to bankruptcy fraud;
$2,005,000 to carry out the Program's automation initiatives;
$500,000 for a bankruptcy training center initiative; and
$145,000 and three additional positions at the Program's headquarters.
None of this money comes from the public fisc. It comes as user fees paid by debtors as part of their filing fee and in chapter 11 cases as quarterly fees. The FY 1999 increases will assist the Program in meeting its mission of protecting and preserving the integrity of the bankruptcy system through its long-range goals of providing administrative support to move cases effectively and efficiently through the bankruptcy system, maximizing the return of estate assets to creditors, and ensuring that parties adhere to the standards of the law.
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INCREASED WORKLOAD
Bankruptcy filings have increased at unprecedented rates.(see footnote 2) The bankruptcy boom has had a most substantial effect on the Program's workload. Since the Program's nationwide expansion, its staff has grown by 26 percent. The graph shown in Attachment A displays the growth in filings compared to the growth in the Program's staff, using FY 1988 as a base year. Over the same period, filings have grown by 126 percent and it is projected that filings will continue to grow over the 1998–1999 period, although at a reduced pace than the rate over the past two years. See Attachment B. This initiative is tied to our long-range goal of ensuring that cases move efficiently and effectively through the bankruptcy system.
BANKRUPTCY FRAUD
The bankruptcy fraud initiative responds to the growing number of requests from bankruptcy judges, private trustees, national creditor organizations and the concerns expressed by members of this Subcommittee that more needs to be done to identify bankruptcy fraud and ensure that its perpetrators are sanctioned.
The initiative will provide 20 new positions for the Program's bankruptcy fraud efforts to assist the Offices of the United States Attorneys and the Federal Bureau of Investigation in their efforts to investigate and prosecute fraud in the bankruptcy system. The initiative addresses the Program's long- range goal of ensuring that parties adhere to the standards of the law and that Program staff more effectively police for embezzlement, fraud, and other abuses. While the fraud initiative primarily addresses the criminal side of the Program, it will also assist our staff's efforts on the civil side for civil enforcement, where appropriate, to prevent abuse and misuse of the bankruptcy system.
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AUTOMATION
This initiative will allow the Program to upgrade its automation systems, meet Year 2000 goals, and redesign our case management system to provide more flexibility to capture, manipulate, retrieve and analyze data.
Our current automation technology dates back to the mid-1980's and is many years away from meeting the needs of the Program and others in the bankruptcy system. Our existing systems lack the capacity to meet increased bankruptcy workload demands such as the need for statistical information, performance evaluation, file sharing or electronic communications, all of which are necessary in this age of instant communication and analysis.
The Program began its automation overhaul in FY 1996 and 1997 using base resources and the increase of $1.2 million provided in the 1997 Appropriations Act. If we are to complete this effort, additional funding is necessary. We believe automation is one of the most important investments that can be made for the future of the Program.
BANKRUPTCY TRAINING
The requested increase will formalize and provide a home for the Program's bankruptcy training that traditionally has been undertaken on a periodic basis, with volunteers producing course materials in their spare time. Our proposed training initiative will support the development of an ongoing bankruptcy curriculum, and will focus on expanding the training we provide for Program staff, and for private trustees, and it will serve as a vehicle for implementing changes necessitated by new directions in legislation and policies. Systematic training and professional development will enable us to continue to do more with less: it will improve productivity, it will enhance our ability to act with consistency, and it will assure our ability to exercise discretion with confidence.
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We have reached an agreement with the Executive Office for United States Attorneys (EOUSA) that will permit us to use the classrooms and other facilities at their National Advocacy Center in Columbia, South Carolina. Co-location of our classrooms with those of the United States Attorneys makes economic sense as well as good policy sense. It will enhance the Department's cooperative training efforts in the bankruptcy arena.
EOUST HEADQUARTERS STAFF
The budget request includes an increase—three positions and $145,000—for the Program's headquarters staff. These positions will be placed in our Office of General Counsel, our Office of Review and Oversight, and our Office of Research and Planning. The increase will allow us, from a support standpoint, to address the additional workload that is occurring in the field, put in place a strategic planning process and meet the requirements of the Government Performance and Results Act.
CONCLUSION
Calendar year 1997 marked the beginning of the Program's second decade as an established, nationwide player in the bankruptcy system. As we enter this decade, we see a number of challenges ahead not the least of which are contained within the report of the National Bankruptcy Review Commission, and in the bankruptcy bills that have been introduced in this House as well as the Senate. Many of the recommendations, if enacted, will effect the manner in which the U. S. Trustee Program operates. The budget before you does not include resources for any of these new proposals.
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Thank you for the opportunity to appear before you today. I would be pleased to answer any questions you may have.
57220a.eps
57220b.eps
Mr. GEKAS. Thank you, Mr. Patchan.
For the benefit of the Committee again the witnesses very kindly have submitted to the notion that we will supply them with interrogatories, written questions to flesh out this hearing rather than to hold them here for two or three hours pending the outcome of the floor action and then return.
So whatever questions you might have, and I have a dozen questions for Ms. Bucella, for instance, whether there are 96 new positions or 96 new vacancies, given the fact that we have vacancies. For Ms. Schreier whether the marijuana charges on the tribal situation reach tribal court or whether they enter the U.S. jurisdiction. For Ms. Schiffer the split budgets always have bothered me between EPA and so forth. And for Mr. Patchan, and these are just my questions, so I'm hoping that other questions might be submitted in writing, on the reaffirmation problem, the Sears case, et cetera.
So with the thanks of the Committee we dismiss you now and we trust that you will be receiving some written communications.
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[The questions to be submitted and responded to are printed in the Appendix.]
[The statement of Seth P. Waxman, Solicitor General follows:]
PREPARED STATEMENT OF SETH P. WAXMAN, SOLICITOR GENERAL OF THE UNITED STATES
Mr. Chairman and Members of the Committee: Thank you for inviting me to present testimony regarding the Office of Solicitor General in connection with the Committee's hearing on the Department of Justice's Fiscal Year 1998 Authorization bill.
I. THE SOLICITOR GENERAL'S DUTIES
When Congress created the position of Solicitor General in 1870, it expressed high ambitions for the Office: the Solicitor General is the only officer of the United States required by statute to be ''learned in the law,'' 28 U.S.C. Section 505, and the Committee Report accompanying the 1870 Act stated: ''We propose to have a man of sufficient learning, ability, and experience that he can be sent . . . into any court wherever the Government has an interest in litigation, and there present the case of the United States as it should be presented.''
In modern times, the Solicitor General has exercised responsibility in three general areas.
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1. The first, and perhaps best-known, function of the Solicitor General is his representation of the United States in the Supreme Court. The late former Solicitor General Erwin Griswold captured the nature of this responsibility in observing:
The Solicitor General has a special obligation to aid the Court as well as serve his client. . . . In providing for the Solicitor General, subject to the direction of the Attorney General, to attend to the ''interests of the United States'' in litigation, the statutes have always been understood to mean the long-term interests of the United States, not simply in terms of its fisc, or its success in particular litigation, but as a government, as a people.
This responsibility, of course, includes defending federal statutes challenged as unconstitutional. The Solicitor General also defends regulations and decisions of Executive Branch departments and agencies, and is generally responsible for representing independent regulatory agencies before the Supreme Court.
The Supreme Court practice of the Solicitor General includes filing petitions for review on behalf of the United States. In this regard, as the Supreme Court has stated:
This Court relies on the Solicitor General to exercise such independent judgment and to decline to authorize petitions for review in this Court in the majority of the cases the Government has lost in the courts of appeals.
The Solicitor General also responds to petitions filed by parties unsuccessful in the lower federal courts in criminal prosecutions or civil litigation involving the government. Where review is granted, in a case in which the United States is a party, the Solicitor General is responsible for filing a brief on the merits with the Court and he or a member of his staff presents oral argument before the Court. The Solicitor General also files amicus curiae, or friend-of-the-court, briefs in cases involving other parties where he deems it in the best interest of the United States to do so. Although most amicus filings occur only after review has been granted, the Solicitor General also submits amicus briefs at the petition stage when invited by the Court to do so or, in rare instances, when Supreme Court resolution of the questions presented may affect the administration of federal programs or policies. The Solicitor General, as a rule, participates in oral argument in those cases in which the government has filed an amicus brief on the merits.
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2. The second category of responsibilities discharged by the Solicitor General relates to government litigation in the federal courts of appeals, as well as in state, and sometimes even foreign, appellate courts. Authorization by the Solicitor General is required for all appeals to the courts of appeals from decisions adverse to the United States in federal district courts. The Solicitor General's approval is also required before government lawyers may seek en banc, or full appellate court, review of adverse decisions rendered by a circuit court panel. Additionally, government intervention or participation amicus curiae in federal appellate courts (as well as state or foreign appellate courts) must be approved by the Solicitor General. In addition, once a case involving the government is lodged in a court of appeals, any settlement of that controversy requires the Solicitor General's assent.
3. In the third category of responsibilities are decisions with respect to government intervention in cases where the constitutionality of an Act of Congress ''affecting the public interest'' has been brought into question at any level within the federal judicial system. In such circumstances, 28 U.S.C. Section 2403 requires that the Solicitor General be notified by the court in which the constitutional challenge has arisen and be given an opportunity to intervene with full rights of a party on the constitutional question.
The various decisions discussed above for which the Solicitor General is responsible are arrived at only on the basis of written recommendations and extensive consultation among the Office of the Solicitor General and affected offices of the Justice Department, Executive Branch departments and agencies, and independent regulatory agencies. Where differences of opinion exist among these components and agencies, or between them and the Solicitor General's staff, written views are exchanged and meetings are frequently held in an attempt to resolve or narrow differences and help the Solicitor General arrive at a final decision. Where consideration is given to an amicus curiae filing by the Government in non-federal government litigation in the Supreme Court or lower federal appellate courts, it is not uncommon for the Solicitor General or members of his staff to meet with counsel for the parties in an effort to understand their respective positions and to explore interests of the United States that might warrant its participation.
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II. ORGANIZATION OF THE SOLICITOR GENERAL'S OFFICE
The Office of the Solicitor General has a staff of 50, of which 26 (including the Solicitor General) constitute its legal staff and the remainder serve in managerial, technical, or clerical capacities. Of the 26 attorneys, four are Deputy Solicitors General, senior lawyers with responsibility for supervising litigation matters in the Supreme Court and lower courts within their respective areas of expertise. Seventeen attorneys serve as Assistants to the Solicitor General. Sixteen are assigned a ''docket'' of cases presenting a wide spectrum of legal problems under the guidance and supervision of the Deputies. The seventeenth, the Tax Assistant, is a senior lawyer who devotes himself almost entirely to litigation arising under the Internal Revenue Code. The remaining four lawyers are recipients of the Bristow Fellowships, a one-year program open to highly qualified young attorneys, generally following a clerkship with a federal court of appeals' judge. Bristow Fellows assist the Deputies and Assistants in a variety of tasks related to the litigation responsibilities of the Office. All of the attorneys in the Office have outstanding professional credentials.
The authorized strength and budget of the Office of the Solicitor General have remained relatively stable in recent years. For Fiscal Years 1998 and 1999, the Office of Solicitor General has requested only base-level funding. For Fiscal Year 1998, its authorized strength is 50 workyears, with a budget of $6,302,000. About 90% of the Office's budget pertains to nondiscretionary items. For example, approximately 70% is devoted to personnel and personnel-related costs, 10% to GSA rent, and 5% to printing. To offset otherwise rising costs, the Office has realized savings by moving from reliance on outside printers to an in-house desktop publishing operation.
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III. OFFICE WORKLOAD
The following statistics may provide a helpful way of measuring the Office's heavy workload given the relatively small staff of attorneys. During the 1996 Term of the Supreme Court (July 2, 1996 to June 27, 1997), the Solicitor General's Office handled more than 2800 cases in the Supreme Court. We filed full merits briefs in 68 cases considered by the Court (and presented oral argument in 64 of those cases), which represented 75% of the cases that the Supreme Court heard on the merits in that Term. We filed 30 petitions for a writ of certiorari or jurisdictional statements urging the Court to grant review in government cases, 443 briefs in response to petitions for certiorari filed by other parties, and waivers of the right to file a brief in response to an additional 2243 petitions for certiorari. In response to invitations from the Supreme Court, we also filed 17 briefs as amicus curiae expressing the government's views on whether certiorari should be granted in cases in which the government was not a party. The above figures do not include the Office's work in cases filed under the Supreme Court's ''original'' docket (cases, often between States but involving the federal government, in which the Supreme Court sits as a trial court), and they also do not include the numerous motions, responses to motions, and reply briefs that we filed relating to matters pending before the Court.
During this same one-year period, the Office of the Solicitor General reviewed more than 2300 cases in which the Solicitor General was called upon to decide whether to petition for certiorari; to take an appeal to one of the federal courts of appeals; to participate as an amicus in a federal court of appeals or the Supreme Court; or to intervene in a federal district court. Thus, during this one-year period, the Office of the Solicitor General handled well over 5100 substantive matters on subjects touching on virtually all aspects of the law and the federal government's operations.
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IV. CONCLUSION
In carrying out the foregoing responsibilities, my staff and I have productively and efficiently adhered to the time-honored traditions of the Office of Solicitor General—to be forceful and dedicated advocates for the government, as well as officers of the Court with a special duty of candor and fair dealing.
Mr. GEKAS. With that, the Subcommittee is adjourned.
[The Subcommittee adjourned at 10:40 a.m., subject to the call of the Chair.]
A P P E N D I X
Material Submitted for the Hearing Record
| U.S. Department of Justice, |
| Office of Legislative Affairs, |
| Washington, DC, July 22, 1998. |
Hon. HENRY J. HYDE, Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
DEAR MR. CHAIRMAN: Thank you for the opportunity to testify before the Subcommittee on Commercial and Administrative Law of the House Judiciary Committee on oversight of the Executive Office of United States Attorneys, the Attorney General's Advisory Committee, the Environment and Natural Resources Division and the United States Trustees.
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Enclosed are the responses to the written questions submitted by Representative Gekas. I apologize for the delay in this response. If you have any questions, please do not hesitate to contact me.
Sincerely,
| L. Anthony Sutin, Acting Assistant Attorney General. |
RESPONSES TO QUESTIONS FROM REP. GEORGE W. GEKAS
HOUSE SUBCOMMITTEE ON COMMERCIAL & ADMINISTRATIVE LAW
Donna A. Bucella
Director
Executive Office for U.S. Attorneys
U.S. Department of Justice
Question 1:
How many employee position—particularly attorney position—vacancies currently exist throughout the United States Attorneys' offices?
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ANSWER:
As of the second pay period of this year, which ended on January 31, 1 998, a total of 572 FTE positions were vacant in the United States Attorneys' offices (USAOs) nationwide. Of these, 100 are attorney FTE slots. By the end of the year, however, we will have filled all attorney vacancies and will have 302 unfilled support and student vacancies.
Question 2:
Are these normal position vacancy rates?
ANSWER:
Our current vacancy rate, although reasonable for such a large organization, is somewhat inflated because of a recent Congressional allocation and because of an unexpected attrition rate last year.
The current vacancy rate is in part attributable to the 177 new FTE that Congress appropriated in late November for Fiscal Year 1998. The 1998 allocation process did not begin until the first of December; therefore, the allocation of the new positions to the districts did not occur until the end of January. Both Congress and the President recognize that filling new positions is a time-consuming process. Accordingly, the President's budget requests and Congressional allocations for new positions are on half-year funding cycles in the first year. We are on track with hiring and filling positions as planned.
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For many years, our average vacancy, or ''float,'' rate was approximately six percent and was offset by additional allocations. Several years ago, however, the number of employees leaving our organization fell drastically. As a result, we had to be much more conservative in our allocations to the field. We successfully used this conservative strategy for several years. However, in the past year, the departure rate unexpectedly increased, contributing to the current vacancy level.
Another important factor is that the United States Attorneys' offices to have a congressionally mandated FTE ceiling. The rules regarding use of FTE sometimes prevent offices from filling positions where flexibility in FTE use is required.
Question 3:
Are the funds appropriated for these positions being allocated for uses other than personnel costs? For example, for equipment, office space, travel, etc.
ANSWER:
The United States Attorneys' appropriation provides for very little discretionary funding. More than 85 percent is used for salaries and space rental. We always give priority to filling allocated positions. The United States Attorneys are in need of infrastructure improvement, however, and, when available, excess payroll funding is sometimes used to support these kinds of improvements. These much needed improvements may include complex technology in support of litigation or updating computers to improve the process of collecting debts, fines, and forfeitures.
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Question 4:
Could you provide the subcommittee with information for the past two fiscal years showing a comparison of the number of full time positions that were filled, and what, if anything, was done with the funds not used for such unfilled positions?
ANSWER:
At the end of 1996, we had 302 unfilled FTE, all of which were for student and support positions. At the end of 1997, we had 410 unused FTE. Surplus payroll dollars were used to purchase and install a video teleconferencing system within the USAOs; to purchase part of the computer and of lice automation equipment needed by the United States Attorneys' offices; to cover unexpected litigation expenses in high priority cases; and to pay higher-than-expected FTS bills for installing and updating complex technology.
Question 5:
It is our understanding that the United States Attorney's office District of Columbia may have experienced a shortfall in it recent operating budgets. If that was the case, can you tell us how serious was this short fall and why did it occur?
ANSWER:
In 1996, the USAO for the District of Columbia experienced a $200,000 shortfall in its budget for employee benefits. This shortfall represented less than one-half of one percent of the district's budget. The Executive Office for United States Attorneys immediately covered this deficit from underspending on benefits in other districts' budgets. Because benefit calculations are difficult to make, beginning in 1997 EOUSA pays all benefits centrally. In 1997, the United States Attorney's office for the District of Columbia ended the year with a $379,000 budget surplus, primarily due to vacant positions.
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Question 6:
The United States Attorney's office for the District of Columbia has implemented a pilot program called the Community Prosecution Program, which I think is being proposed on a wider basis for DOJ this year. How has this worked in D.C.? Will this program continue to provide funds for prosecutors for a period longer than was contemplated by the so-called Cops on the Beat program?
ANSWER:
The Community Prosecution pilot project began in June 1996 in the United States Attorney's office for the District of Columbia. This successful project expands prosecutors' traditional role beyond the courtroom and into the community. Community Prosecution attorneys work with police and citizens to identify threats to community safety and devise strategies to prevent and reduce crime. Simultaneously, the community has become increasingly involved in working with the prosecutors to solve and prosecute crimes in the neighborhood. We are very pleased with the accomplishments of the D.C. experiment and are eager to see it continued and expanded to other sections of the city. As with the Cops on the Beat program, the Community Prosecution Program will continue to exist and expand as long as allocations are available to support it. The program is not currently scheduled for Department-wide expansion.
Question 7:
With recent attention to gender and race relations in the workplace, what policies and programs do your offices in place to ensure that any inappropriate or illegal activity in this area is handled swiftly and fairly?
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ANSWER:
EOUSA manages an active Equal Employment Opportunity (EEO) program and all offices follow the EOUSA and Department of Justice EEO policies and programs. Immediately on notification of any inappropriate or illegal activity, USAOs proceed as follows:
The office seeks advice on the matter from the EOUSA Legal Counsel's office.
If appropriate, management conducts an informal internal inquiry regarding the matter.
If inappropriate or illegal activity is found, management takes immediate action to correct the situation and, if appropriate, disciplines the individual who engaged in the inappropriate or illegal activity.
Through a progressive system of discipline, employees who have engaged in such misconduct are subject to discipline ranging from admonishment to suspension or discharge.
Allegations of serious employee misconduct may also be referred to the Office of the Inspector General for possible investigation.
When immediate action is required while investigation and/or the disciplinary action proceeds, an employee may be placed on administrative leave during the pendency of the matter.
If employees believe they have been discriminated against, they have the right to file a discrimination complaint. An impartial EEO counselor from outside the employee's office will obtain information and attempt to resolve the matter within 30 days. Where appropriate, formal mediation may be attempted. If the matter is not resolved, the employee may file a formal discrimination complaint. If the complaint is accepted for investigation, an impartial EEO investigator from outside the employee's office witnesses, obtain additional information, and prepare an investigation report. After reviewing the report, if EOUSA finds discrimination has occurred, immediate corrective action is taken and additional efforts are made to resolve the complaint. If EOUSA does not find that discrimination has occurred, the employee is provided a copy of the report and informed of the right to request an administrative hearing before an Equal Employment Opportunity Commission (EEOC) administrative judge, or to receive a final decision without a hearing from the Department of Justice Complaint Adjudication Officer, or to file a complaint in the appropriate U.S. district court. If the employee does not agree with the decision of the administrative judge or the Complaint Adjudication Officer, the employee may file an appeal with the EEOC Office of Federal Operations or file a complaint in U.S. district court.
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EOUSA policy requires that all USAO and EOUSA employees receive annual training on issues related to equal employment opportunity and diversity in the workplace. United States Attorneys and EOUSA representatives worked to create a new EEO video, ''Making Diversity Work,'' which we will distribute to all United States Attorneys' offices along with discussion guidelines. All employees are required to watch the video and to receive annual training on EEO issues, including race relations and sexual harassment. Training on EEO issues is also provided to managers and supervisors at various training seminars and conferences conducted by EOUSA's Of lice of Legal Education.
Question 8:
The U.S. Attorneys' offices throughout the country are, in effect, the front line of DOJ. The U.S. Attorneys, their assistants, and personnel in those offices are seen on a day-to-day basis by more Americans than any other personnel of the Department. Are you comfortable with the diversity of these offices in terms of gender, race, disability, and related categories, especially in the supervisory ranks?
ANSWER:
The United States Attorneys' offices and the Executive Office have an outstanding record of maintaining a diverse workforce that is representative of the individual communities served. At the end of Fiscal Year 1997, the Executive Of lice and the United States Attorneys' of rices had 8,905 full-time permanent employees. Of that number, more than 60 percent of the employees are female, and 25 percent are minorities. Among the attorney workforce, 32 percent are women, and 15 percent are minorities. However, we believe we can do better, and we will do better, to increase diversity in our workforce by enlarging the pool of minority applicants. We have, for example, attended minority bar association conferences specifically to recruit applicants and obtain resumes. These resumes are provided to all United States Attorneys' offices.. We also maintain an applicant referral service through which applicant resumes are forwarded to various United States Attorneys' designated by the applicant.
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Question 8A:
Does your office have a system for tracking the recruitment, hiring, and promotion of persons to ensure diversity in the U.S. Attorneys' offices? For example, could you provide the subcommittee with a diversity assessment profile of the U.S. Attorneys office for the District of Columbia?
ANSWER:
The Executive Office annually reviews the degree of its own diversity and that of the United States Attorneys' offices and provides that information in various reports to United States Attorneys' offices.. The reports contain information on the recruitment, hiring, and promotion of employees categorized by gender, race/national origin, and disability. This information is found in databases maintained by the National Finance Center and is easily retrievable.
Individual United States Attorneys' offices maintain their own statistics regarding the diversity of their workforce. The District of Columbia United States Attorney's of lice maintains its information in a database that can readily provide statistics and reports.
Question 9:
What is the status of the National Advocacy Center, and is it working as intended?
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ANSWER:
The construction of the National Advocacy Center (NAC) is substantially complete. The first class was held April 23, 1998. Except for the landscaping, which has been delayed because of wet weather, the contractor completed the facility on time and within the $32.4 million budget.
The NAC staff will operate in FY 1999 with an annual budget of $14.8 million and a staff of 36 permanent employees, complemented by nine Assistant United States Attorneys on detail. No NAC program increases have been requested.
Question 10:
The Department is proposing the expansion of the Weed and Seed program, begun under President Bush. What is your assessment of how that program is operating? Should it be expanded even more?
ANSWER:
United States Attorneys offices have played an important role in the Weed and Seed program since it began in 1991. They have found the program an effective tool to bring communities and law enforcement together for the purpose of improving the quality of life in urban areas, opening the lines of communication between community residents, business owners, and area youth, and building a strong infrastructure to restore economic opportunities to residents. In 1997, more than $800,000 was used to support Weed and Seed activities such as training, Drug Education for Youths (DEFY) Camps, and conferences sponsored by USAOs using their Weed and Seed funds. More than $270,000 is obligated to date for the same type of activities.
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The Weed and Seed Program has expanded from the 13 original sites to approximately 178 sites (either designated or pending official recognition). The program begins as a self-help initiative in which community residents, using community donations and with the USAO's guidance and assistance, organize to formulate a strategy and then submit an application for official designation of a Weed and Seed site. The Department commits funds only after the application is accepted and the site is recognized.
The USAOs, through their LECC coordinators, also help to bring a variety of federal, state, and local law enforcement agencies, as well as community leaders and organizations, together to develop a cooperative plan of action. An example of the success that can be achieved through this sort of community activism on the part of a USAO is the Winston-Salem Weed and Seed site in the Middle District of North Carolina. With the direct and consistent involvement of the USAO in a task force targeting drug activity and violent crime in a large apartment complex, narcotics violations were reduced by 75 percent between 1993 and 1996. In addition, the apartment complex is under new management, a tenant association election is planned, and new businesses are opening.
The Weed and Seed Program has been tremendously successful in bringing together all the elements needed to revitalize communities and reduce crime. In other words, Weed and Seed is a strategy that works, and one that has potential to expand to many more communities in need if additional resources are made available.
Lois Schiffer
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Assistant Attorney General
Environment & Natural Resources Division
U.S. Department of Justice
Question 1:
Our Subcommittee had a hearing last fall at which EPA testified that they had consulted with the Justice Department on a major rulemaking—the ozone and particulate matter air quality standards. Then they sent us a letter saying, ''No, we did not consult with the Justice Department.'' I think everyone assumed that EPA would consult with DOJ on major legal issues, but they don't. Yet you are defending them, I assume, in the litigation that they've spawned. And, as you point out, much of your docket is defensive. Why should EPA got free litigation services from DOJ when they have been haphazard with the law in making these rules?
ANSWER:
The Department of Justice is the litigator for the United States. The Department does not ordinarily provide formal advisory opinions, except through the Office of Legal Counsel, nor does the Environment and Natural Resources Division (ENRD) ordinarily provide formal advisory opinions to client agencies about rulemakings, although the Division does sometimes consult with agencies on issues related to rulemakings. ENRD did not provide a legal opinion to EPA regarding the substantive issues addressed by the rulemaking to which you refer. ENRD did participate in the interagency review of the ozone and particulate matter air quality standards. EPA has an Office of General Counsel, whose attorneys provide legal advice to the agency.
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ENRD is presently defending the air quality standards in litigation. The Department of Justice represents the EPA and other executive agencies to ensure that the United States takes consistent legal positions in court. Because this matter is pending in litigation, it is inappropriate for me to comment further.
Question 2:
I'm intrigued by some of your requests for additional budget authority (1999 Budget Summary; pg 59–60). You ask for additional resources to defend The Administration's proactive approach of ensuring a sustainable economy and a sustainable environment through ecosystem planning. You are the government's lawyers, and you understand the meanings of words. Why have you not identified specifically and factually what you are requesting funds for?
ANSWER:
The Department is requesting a budget increase of 3 positions, 2 FTE work years and $174,000 for defensive civil litigation related to ecosystems. This will cover:
one attorney and one paralegal to work on:
— new fisheries management cases arising under the newly amended Magnuson Act (Magnuson-Stevens Fisheries Conservation and Management Act, October 1996) and
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— new Endangered Species Act cases stemming from a Supreme Court decision granting standing to those suffering economic harm (Bennett v. Spear, 117 S.Ct. 1154 (1997)) and from this Administration's reforms promoting habitat conservation plans that permit economic development in a manner that also protects species;
one professional Real Estate Appraiser to handle a backlog of appraisals for our eminent domain cases.
This information is contained in the FY 1999 Department of Justice Congressional Authorization and Budget Submission, at pages E–42 through E–44 of the General Legal Activities Account.
Question 3:
One of the items for which you have requested additional budgetary authority is the Joint Center for Strategic Environmental Enforcement. I am not familiar with that project and would like to know what it is and what your mandate was to undertake that project. What is to stop the Joint Center from becoming a free-ranging federal law enforcement outfit, and what might be the effect on the independence of your lawyers if the Department of Justice has an interlocking relationship with a federal agency (EPA)?
ANSWER:
The Department is requesting $488,000 to establish with EPA a Joint Center for Strategic Environmental Enforcement, using underutilized EPA office space at the federal complex in Lakewood, Colorado. The Joint Center will work to find environmental criminals who operate outside the system and bring them into compliance with the law. The goals of the Center are to 1) help ensure a level playing field for law abiding companies; and 2) increase coordination and consistency in environmental enforcement across the nation. Meeting these goals will help carry out the Department's mandate to enforce the criminal provisions of the environmental statutes.
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The Center will consolidate and analyze regulatory data currently stored in 70 separate EPA databases and will provide a central clearinghouse for prosecutors, investigators, and regulators of information on environmental compliance by individuals and businesses on a nationwide basis. This collection and analysis of data will allow the Center to identify and prosecute criminals who move from community to community. Such fly-by-night operations not only pose a serious threat to the public and the environment, but, by failing to comply with the law, they also gain an unfair competitive advantage over companies that spend money to ensure that they are in compliance.
The Center will also increase national coordination and consistency. When a business or individual is discovered in one state committing a serious environmental violation, the Center will be able to determine if that same business or individual is engaging in the same activity at another location. This will enable the Center to either prevent the commission of another violation, or detect such a violation if it has already occurred.
EPA is one of many client agencies that refer cases to the Department of Justice. Working with EPA at the Joint Center is one example of an effective cooperative relationship between agencies to make efficient use of limited resources. Before the
Department brings any enforcement action, whether civil or criminal, it independently reviews the referral and makes its own determination that an action should be brought.
Question 4:
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In the Justice Department's Strategic Plan (Aug. 1997; required by the Results Act), the DOJ's stated goal of ''Safeguarding America's Environment and Natural Resources'' has several Performance Indicators that are entirely subjective, ''Appropriate cooperation and training . . . '' ''Appropriate representation of government agencies . . . '' The ''number significance and quality of enforcement actions brought . . . '' Performance Indicators are supposed to tell us if you have done what you set out to do, so using indicators that are matters of opinion won't work. Are you going back and doing some real thinking to come up with concrete, measurable indicators of your results?
ANSWER:
On September 30, 1997, the Attorney General formally issued the Department of Justice Strategic Plan for 1997–2002, as required by the Government Performance and Results Act. This is a general plan for the entire Department with broad goals and objectives. Since the Department issued the plan last year, both this Division and the Department as a whole have continued to work to comply with the Results Act. In February 1998 the Department completed a Summary Performance Plan which sets forth both goals and indicators for fiscal year 1999, including goals and indicators for the Environment and Natural Resources Division. The indicators include such factors as the number of convictions in our criminal cases. In addition, on April 6, 1998 ENRD officials briefed House Judiciary staff on GPRA goals and performance standards and provided all relevant reports and plans.
Question 5:
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Would you please explain what ''environmental justice'' is? And please tell us if the Department of Justice permits the use of race, ethnicity, or national origin in any way when deciding how or where to enforce the environmental laws.
ANSWER:
''Environmental Justice'', as specified in Executive Order 12898, issued by President Clinton on February 11, 1994, deals with the question of whether minorities and low-income people bear a disproportionate burden of exposure to environmental harms (such as toxic air pollutants, soil contamination, or unsafe drinking water) and any resulting health effects. Environmental justice emphasizes the importance of public participation in agency decision-making about environmental policies or activities that affect a community. In 1994, the President issued an Executive Order which requires agencies to make environmental justice a -priority and address disproportionate burdens on low income and minority populations. The Environment and Natural Resources Division (ENRD) is working with federal agencies to implement this Order.
In the Department's environmental enforcement actions, we pay attention to environmental justice issues when they arise and make special efforts to communicate with the affected communities to ensure that they understand the enforcement processes and to solicit their views about the nature of any settlement. ENRD does not use data on race or income as a way to target enforcement actions.
Question 6:
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What does the Justice Department do when it comes across a case where a regulation is not clear enough to provide guidance or where an agency adopts a new, previously unknown interpretation of a regulation or law and then seeks criminal or civil enforcement? Do you resist or refuse to enforce in such situations? What should your policy be?
ANSWER:
In making a decision about whether it is appropriate to bring a penalty action against an entity that has violated a regulation, we consider what the violator knew or should have known about the meaning of the regulation. In making the determination about what the violator knew or should have known, the Department may consider a variety of factors including, for example, industry practice or the existence of either published or unpublished guidance regarding the proper interpretation of the regulation.
Most civil enforcement actions brought by the Department involve violations of clearly applicable legal standards found in the law or regulations. In some instances, regulated entities request, and agencies provide, guidance to help interpret the agency's regulations. These interpretations or guidances may get circulated, or otherwise become widely known, throughout a regulated community.
Question 7:
Environmental regulations pose a unique problem because they often apply to land or resources that are widely owned, but the regulatory regime is of the same type we use for highly regulated and sophisticated industries. What do you do when you come across an alleged environmental violator who did not know of the regulations and who did not even know they could be the subject of the regulation?
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ANSWER:
A number of industries and businesses—such as aviation, pharmaceuticals, or those involving hazardous wastes and pesticides—involve activities that could cause significant harm to human health, safety or the environment. EPA and other agencies expend considerable resources on compliance assistance to prevent violations of the laws and ensure that regulated entities are aware of the laws. At the same time, enforcement is an important tool for achieving compliance with laws, and in environmental matters, as with many other areas of the law, ignorance of the law is not a sound defense to compliance.
Agencies choose to impose penalties and other sanctions in part to deter future violations and to help ensure that violators do not gain a competitive advantage over law-abiding entities. When the Department brings enforcement actions, we are open to settlements that achieve equitable outcomes. In determining the amount of penalties we seek, if any, we take into account, among other things, the severity of the violations, the defendant's ability to pay, good faith efforts to comply, and efforts to prevent future noncompliance.
Joseph Patchan
Director
Executive Office for the U.S. Trustees
U.S. Department of Justice
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Question 1:
In February of 1996, the Attorney General announced ''Operation Total Disclosure,'' which was intended to be a comprehensive and cooperative effort by United States Trustees and other agencies in the Department of Justice to combat bankruptcy fraud and crime. What was accomplished by Operation Total Disclosure? What is the current status of this effort?
ANSWER:
''Operation Total Disclosure'' was a multi-agency effort involving the United States Trustee Program, United States Attorneys, the Federal Bureau of Investigation, and the Criminal and Tax Divisions of the Department of Justice. This nationwide law enforcement initiative is aimed at prosecuting people who illegally conceal assets, file fraudulent bankruptcy petitions, or otherwise abuse the bankruptcy system.
Operation Total Disclosure also encouraged the formation of local bankruptcy task forces usually composed of personnel from Offices of the U.S. Trustee, U. S. Attorneys, Federal Bureau of Investigation, and other law enforcement agencies. In addition, Operation Total Disclosure established a continuing nationwide bankruptcy fraud training program.
The criminal investigations initiated by United States Trustees under Operation Total Disclosure resulted in increased referrals for prosecution. In 1996, United States Attorneys obtained indictments in 118 cases involving 131 defendants in 43 districts and yielded a conviction rate of approximately 71 .
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Although most of the prosecutions under Operation Total Disclosure have ended, the initiatives begun under this operation continue. United States Trustees continue to work with task forces, and encourage the formation of task forces in those districts lacking them. United States Trustee Program employees have also benefitted from fraud training and increased cooperation with United States Attorneys and the Federal Bureau of Investigation.
Question 2:
The Program's budget request for fiscal year 1999 seeks an additional $1.5 million to establish a national team of specialists to investigate bankruptcy fraud. What have been the efforts and accomplishment of the Program in ferreting out and detecting fraud to date? What will this initiative accomplish?
ANSWER:
A central role of the United States Trustee Program is to preserve the integrity of the bankruptcy system by investigating bankruptcy fraud and abuse. In addition to combating abuse through remedies such as dismissal 11 U.S.C. 707(b), the Program refers matters to the United States Attorney for prosecution. The success of Operation Total Disclosure (see question 1) highlights the important role United States Trustees play in combating fraud through their unique role as ''gatekeepers'' of the bankruptcy system.
The Program, however, must also devote its limited resources to supervising the administration of bankruptcy cases and promoting the efficiency of the bankruptcy system. The budget request will provide 20 positions for experienced attorneys and forensic accountants exclusively dedicated to combating fraud and abuse. These positions will improve the Program's current efforts, and enable the Program to create strategies and dedicate resources to combat specific problems such as health care fraud, identity crimes, and abuse of exemptions. The positions will also be available to assist the FBI in investigating cases, and United States Attorneys in prosecuting cases, that otherwise would not be prosecuted because of resource limitations.
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Our recent successes in combating fraud and abuse include:
S.D. California: Carl Ohm, six-month sentence, and Joanne Ohm, three years probation, for failing to state a $30,000 gift to their son within one month before filing bankruptcy (3/31/98);
D. Massachusetts: Wendy Golenbeck, Cheryl Stein, and Susan Otis, indictment charging concealment and conspiracy to conceal from bankruptcy creditors the ownership of a home on Cape Cod (3/18/98);
D. Rhode Island: William Musard, 12 months, and Marilyn Musard, 6 months home confinement, for understating their net worth by concealing $44,000 in assets and fabricating loans and asset sales (3/13/98);
D. Alaska: Robert Rubick, 58 months (the longest sentence ever imposed in the District of Alaska in a white-collar crime case), for concealment of assets including buried cash and diamonds, a big game trophy collection, a hunting lodge, a Land Rover, and two elephant tusks resulting in a $2,334,000 loss to his Chapter 7 bankruptcy estate (3/6/98);
E.D. Pennsylvania: Kathleen Roy, 4 months incarceration, 4 months home confinement, and 3 years supervised release for concealing $50,348 divorce settlement (3/6/98);
C.D. California: Michael Knighton, guilty plea to eight counts of bankruptcy fraud and use of a false social security number concerning a scheme to misdirect a corporate debtor's accounts receivable (2/27/98);
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C.D. California: Robert D. Winter, guilty plea to two counts of bankruptcy fraud and one count of tax evasion, and Susan Winter, guilty plea to one count of tax evasion, involving the failure to report income from improper use of funds belonging to a corporate debtor (2/24/98);
D. Massachusetts: Virginia Labrecque, 5 months community confinement and 2 years supervised release, for concealing approximately $100,000 (2/20/98);
S.D. California: Harvey and Shirley Bloom indicted for bankruptcy fraud involving the concealment of assets (1/5/98);
S.D. California: Joseph and Charles Cowser indicted for bankruptcy fraud involving false statements regarding company's receipt of computer equipment (1/5/98);
C.D. California: Indictment of 20 individuals for various acts of bankruptcy fraud (12/17/98);
C.D. California: Arrest of Bernard Gross for a scheme to defraud financial institutions in foreclosure scam and bankruptcy fraud (12/10/97).
Question 3:
Does the Program evaluate the cost-effectiveness of its fraud detection/prosecution efforts? For example, is there any analysis detailing the cost of the Program's fraud detection and prosecution efforts and the amounts recovered as a result of those efforts?
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ANSWER:
The Federal Bureau of Investigation reports that in Fiscal Year 1997 bankruptcy fraud prosecutions have resulted in court orders for $18,928,464 in restitution and $499,924 in fines; $1,851,922 in recoveries; $260,000 in forfeitures; and $20,255 in seized property. The Department has not undertaken a costbenefit analysis of its fraud detection and prosecution efforts. Bankruptcy crimes victimize the integrity of the entire bankruptcy system and, in addition to providing substantial recoveries, detection and prosecution serve an important deterrent effect. We believe any cost-benefit analysis would fail to take into account adequately the deterrent effect of prosecutions and thus would not adequately reflect the value of the Program's efforts in this area.
Question 4:
The Director of the United States Trustee Program, at a hearing before this Subcommittee in July of 1996, testified that the program was the ''first line of defense for the bankruptcy system's integrity.'' In fact, the Director, in his written statement submitted in connection with the February 25, 1998 Authorization Hearing before this Subcommittee, stated that the program insists on ''full disclosure of property and financial transactions'' by debtors. Nevertheless, many in the bankruptcy community, including creditors and judges, claim that fraud and abuse are rampant in bankruptcy cases and that no one is ''guarding the hen house.'' The consumer creditor lobby asserts that United States Trustees are not doing enough to get abusive Chapter 7 cases dismissed. On the other hand, the consumer debtor lobby claims that United States Trustees do not file very many of these motions because there just is not that much abuse. Please comment on both of these assertions. Approximately, how many motions to dismiss Chapter 7 cases for substantial abuse under Section 707(b) were filed the United States Trustees last year?
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ANSWER:
The definition of abuse often turns on one's viewpoint. A creditor's perspective, for example, may diverge from that of a debtor. Some creditors may believe that acts such as the use of state exemptions or selection of chapter 7 are abusive, while a debtor may view certain collection efforts prior to bankruptcy as abusive. Although the Bankruptcy Code attempts to balance these different viewpoints, the choices made in the Code will not satisfy everybody.
United States Trustees, case trustees, creditors, debtors, and bankruptcy judges all share the responsibility to ''guard the hen house.'' United States Trustees have taken and will continue to take a primary role in attacking fraud and abuse. In addition to filing objections to discharge or referring cases for criminal prosecution (see our responses to questions 1, 2 and 5), United States Trustees continually review chapter 7 bankruptcy cases for abuse under 11 U.S.C. 707(b). In 1997, the Program investigated approximately 11,000 chapter 7 bankruptcy petitions that on the surface might have been abusive; of those cases, United States Trustees filed approximately 1400 motions to dismiss under the substantial abuse provisions of section 707(b). Approximately 235 of the cases were still pending as of the end of 1997, 625 were settled (usually by conversion to chapter 13), 470 were granted, and 70 were denied. Of those motions actually decided by a bankruptcy judge, 87' were granted. In those cases with questions but no motion to dismiss, the debtors provided satisfactory explanations or voluntarily converted or dismissed their cases.
Based upon our review of individual cases and our successes in criminal prosecution and dismissal under section 707(b), we do not believe that fraud and abuse, under current law, is rampant. Current law, however, sometimes hampers our ability to pursue cases that may be abusive to a layperson. For example, United States Trustees are often hampered by the language of section 707(b) which only allows dismissal where granting discharge in a chapter 7 case would be a ''substantial'' abuse. This term is not defined and is subject to varying interpretation by the courts. Many courts do not consider ability to pay creditors alone substantial abuse, but decide these cases depending upon a totality of the circumstances. Congress, including this committee, is currently addressing the issue of a debtor's ability to pay debts, along with other areas of concern such as serial filing and the use of generous state exemptions. We hope to work with the committee and interested members as you consider how to prevent abuse of the bankruptcy system.
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Question 5:
What efforts does the United States Trustee Program undertake to evaluate Chapter 7 cases to determine whether a complaint objecting the debtor's discharge under Section 727 of the Bankruptcy Code should be filed? Approximately how many objections to discharge were filed by United States Trustees last year?
ANSWER:
An objection to discharge may be filed by any party in interest, including a United States Trustee. Facts supporting a denial of discharge are usually not apparent from the face of a bankruptcy petition and schedules. Generally, however, United States Trustees file an objection to discharge upon a referral from a chapter 7 trustee. Although a case trustee has a duty to object to discharge, 11 U.S.C. 704(6), trustees often do not have the resources to justify filing suit. In those cases, United States Trustees will often file the suit themselves, or assist the trustee in prosecuting the case. Objections to discharge are usually fact-intensive, and often require significant resources to prosecute. The United States Trustee Program does not compile statistics on the number of discharge objections filed by United States Trustees.
Question 6:
According to one of the charts in the United States Trustee Program budget request, the number of bankruptcy filings per United States Trustee ''employee'' is estimated to be nearly 1,300 for 1998. Given the fact that the Program has 219 attorneys, this ratio would roughly be more than 7,000 cases per attorney. With this many cases assigned to a program attorney, how can he or she effectively ferret out bankruptcy abuse and fraud while performing all the other statutory duties that they must perform?
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ANSWER:
The Program employs a number of strategies to effectively use its limited resources. A primary strategy involves the use of Program employees other than line attorneys, such as bankruptcy analysts and paralegals to review financial reports, case reports, and pleadings to spot problems. Many of the 100 Assistant United States Trustees also carry an active case load.
While Program employees, including attorneys, are involved in every chapter 11 case, they do not necessarily examine every chapter 7, 12, or 13 case. In chapter 7, 12 and 13 cases, the case or standing trustee who examines the debtor at the first meeting of creditors required by 11 U.S.C. 341 is generally the first person aware of potential fraud or abuse. Trustees are instructed to report any problem or questionable matter to the local Office of the United States Trustee for investigation and appropriate action.
The Program's efforts in combating fraud and abuse are also supported by the local bankruptcy task forces created under Operation Total Disclosure, and could be augmented by dedicated Program employees if our FY 99 budget request for the persons is granted.
Question 7:
The latest statistics show that the number of Chapter 11 cases that are filed now account for less than one percent of all bankruptcy cases filed. Yet, approximately two-thirds of the Program's funding is derived from filing and quarterly fees paid by chapter 11 debtors. Legislative efforts, such as H. R. 3150, would put small business Chapter 11 debtors on a fast track, which would further shorten the time these debtors could remain in Chapter 11. In light of the decreasing number of Chapter 11 cases being filed, is it likely that the Program may face a revenue shortfall in the near future?
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ANSWER:
Yes. If Chapter 11 filings continue to decline or if legislative changes affect the time that a case remains under administration, quarterly fees will decline and the Program will face revenue shortfalls. Although they account for less than one percent of all filings, chapter 11 quarterly fees generate approximately 60 percent of the Program's annual funding. Chapter 11 filings appear to be most influenced by interest rates, regional economic conditions, legislative changes, and marketplace phenomenon. Chapter 11 filings have declined by about 60 percent over the last six years, due to the healthy economy, low interest rates, increased chapter 13 debt limits, and an increased number of out-of-court workouts. The following chart displays Chapter 11 filing trends by quarter from 1983 through 1997:
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Chapter 11 filing levels are difficult to predict, although in hindsight they can be explained to some degree. It now appears that chapter 11 filings will continue to decline. This will have a significant impact on the Program's funding in the short term. In the longer term, it is likely that the economy will weaken somewhat, interest rates will rise, and chapter 11 filings will increase, although not to pre-1993 levels.
It is important to note that the Program's funding structure was established when chapter 11 filings totaled 24,490 and represented almost 5 percent of the total bankruptcy filings. The decline in filings has been mitigated by changes to the chapter 11 quarterly fee structure, and to a lesser degree by increases in filings in chapters 7 and 13. While the Program only receives $30 for every chapter 7 or 13 case filed, the sheer numbers of those cases have produced some increases in Program revenues.
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Current revenue projections do show a possible revenue shortfall by the end of this fiscal year because of the decline in chapter 11 filings. Language in the FY 1998 Appropriations Act allows the Program to draw from funds available in the United States Trustee System Fund (currently about $90 million) to cover the shortfall in FY 1998. However, if chapter 11 filings continue to decline, as is expected in the short term, subsequent fiscal years will experience more dramatic shortfalls. This will result in a major dilemma for the Program, because we will be unable to support our current staffing levels. Any staffing reduction will in turn adversely affect our ability to address the current caseload, review cases for fraud and abuse, and adequately assist the bankruptcy courts.
We therefore urge the Congress to reassess the Program's funding mechanism to avoid depleting the Fund and prevent diminution of the Program's effectiveness in overseeing the administration of bankruptcy cases.
Question 8:
Among their many responsibilities, the United States Trustees have the duty to supervise the administration and progress of Chapter 11 cases. Frequently, this duty translates into the need to file motions under Section 1112(b) of the Bankruptcy Code to move these cases along. As United States Trustees become increasingly vigilant in these efforts, more Chapter 11 cases will be dismissed or converted to cases under Chapter 7. Given the Program's economic dependency on Chapter 11 filings, is there any conflict of interest that might arise between the Program's pecuniary needs and its duty to supervise the administration of these cases?
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ANSWER:
We are not acting under a conflict of interest. The Program actively monitors chapter 11 cases and intervenes in cases that are not progressing toward effective reorganization. The Program's efforts in weeding out these cases are not affected by the Program's reliance on chapter 11 cases as a source of funding. In fact, chapter 11 cases are being disposed of (by plan confirmation or dismissal/conversion) at increasingly faster rates as reflected in the following charts, even though total filings, and therefore revenue, have decreased. The Program is committed to ensuring that chapter 11 cases advance through the system.elow, even though total filings, and therefore revenue, have decreased. The Program is committed to ensuring that chapter 11 cases advance through the system.
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Question 9:
One of the Program's budget items includes a request for approximately $2 million to update the Program's computer network system and case management database. Congress in 1986 passed the Bankruptcy Judges, United States Trustees, and Family Farmer Act which made the United States Trustee Program virtually nationwide and permanent. It also directed that within one year after the Act's effective date the Executive Office for United States Trustees, in consultation with the Administrative Office of the United States Courts, establish an electronic case management demonstration project in three federal judicial districts. The project was to have run for two years and produce a database accessible by the United States Trustees, the bankruptcy courts and clerks, governmental agencies as well as nongovernmental entities on a user-fee basis. In addition, the system was suppose to provide unlimited access, at no charge, to the Congress. For each case filed, the database was to have contained a complete list of the following:
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the debtor's creditors and their debts by type
the debtor's assets with their ultimate disposition in the bankruptcy case
a summary of the debtor's income and expense statements
a record of all motions filed in the case
the amount of money distributed to creditors
What ever happened to this project that the Executive Office was to have undertaken more than ten years ago? How do we know whether the money that the Program requests in its 1999 budget will actually produce a better database?
ANSWER:
Shortly after passage of the 1986 Act, the Program attempted to establish a joint project with the Administrative Office for United States Courts (''AOUSC ''). The technological limitations at the time, however, made such an effort costly and unattractive to contractors in the private sector. In November 1988, the Department issued a request for proposals to begin design of the Electronic Case Management System (''ECMS''). In spite of spending almost $700,000 for initial development from Program base resources—funds were never appropriated for the ECMS project—no contractors submitted bids. Accordingly, the Administration recently recommended that this requirement be eliminated. Attached is a copy of the April 12 memorandum and draft legislation to repeal the provision that was sent to the Leadership of both Houses of Congress by Andrew Fois, Assistant Attorney General for Legislative Affairs at the Department of Justice. This memorandum explains in more detail the history of the ECMS project.
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The Program, however, has cooperated with the AOUSC to develop its own case management database that meets certain requirements of ECMS. In support of its case management system, the Program currently downloads data from over 90 percent of the bankruptcy courts nationwide.
The funds requested in the Administration's FY 1999 budget request will be used to convert the Program's antiquated case management database to a more flexible and user-friendly system that is Year 2000 compliant. The system being developed will be state-of-the-art and will permit the Program to query the database on a variety of criteria using information downloaded from the courts and other sources. Extensive use of the Internet and its expanding technology will also provide the opportunity to gather and publish data for all to use.
The funds requested in FY 1999 will also fund participation in the Justice Consolidated Office Network. This office automation network will eventually connect Program offices nationwide. It will also allow Program offices to connect to the Department's other components, such as the United States Attorneys. The ability to communicate and share files electronically between Departmental components will improve coordination with the U. S. Attorneys and others in tackling bankruptcy fraud.
Question 10:
In the past, bankruptcy trustees have complained of micromanagement and the lack of due process by United States Trustees, among other concerns. Back in October of last year, the Subcommittee held a hearing on Mr. Goodlatte's bill, BAR. 2592, which would provide for judicial review of certain decisions made by United states Trustees pertaining to their supervision of bankruptcy trustees. This bill is still pending. In September of last year, the United States Trustee Program promulgated its final rule setting forth procedures for the suspension and removal of panel and standing trustee-. What has been the experience under this final rule to date and what other efforts has the Program undertaken to address the trustee's complaints?
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ANSWER:
The Department's final rule, 28 CFR 58.6(i), provides a structured mechanism through which trustees can obtain meaningful agency review. The rule requires a United States Trustee to issue written notice of the reasons for a trustee suspension, removal, or non-renewal, and provides an opportunity for the trustee to obtain review of the decision by the Director of the Executive Office for United States Trustees. The Director must issue a decision within 45 days, and in the interim the trustee's suspension, termination, or non-renewal is held in abeyance unless special reasons exist. The rule ensures that such action will occur only when appropriate and supported by the record. Any trustee dissatisfied with the Director's decision may obtain judicial review in the district court pursuant to the Administrative Procedure Act.
The rule is effective for decisions made by United States Trustees after November 3, 1997. Since then the Director has received three requests for review that fell under the purview of the rule. The Director has reversed the decision in one of these cases, and has affirmed another. The third case became moot when the United States Trustee voluntarily restored a suspended panel trustee to active rotation. In addition, the Director voluntarily applied the rule to seven requests for review in actions that occurred prior to the effective date of the regulation. Of these seven cases, three were affirmed, one reversed, and two were modified to reduce the sanction that the United States Trustee had imposed. The trustee withdrew the request in the remaining case.
We continue our liaison contacts and meetings with private trustee representatives and work toward amicable resolutions of issues and problems as they may arise. For example, we are developing a alternative dispute resolution procedure to resolve disputes with standing trustees about budget issues (see Question 11).
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Question 11:
The Goodlatte bill would also provide for judicial review of Chapter 13 trustee budgets and expenditures. Has the Program considered issuing a rule that would provide an administrative grievance procedure similar to the final rule issued last year with regard to the suspension and removal of trustees?
ANSWER:
The Program has focused its efforts on developing a procedure for mediating budget disputes with chapter 13 standing trustees. This has been done in cooperation with a group of standing trustees who had significant input into the process. Under the proposal, a panel consisting of one United States Trustee and one chapter 13 standing trustee will mediate budget disputes. To facilitate this process, joint mediation training is scheduled for United States Trustees and standing trustees for May 29–30.
We believe that expense disputes are prime candidates for informal resolution rather than litigation. Chapter 13 trustees are not obligated to pay expenses from their own assets but receive compensation from debtor trust funds to pay for all actual and necessary expenses. Standing trustees act as fiduciaries of the debtor trust funds and are held to the highest standards of loyalty. Mediation will promote the prompt and amicable resolution of disputes that arise in the course of setting a standing trustee's compensation, and will prevent or diminish the hardening of positions often seen in litigation.
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In addition, the primary reason the Program promulgated a rule on suspensions and removal of trustees was to provide trustees with the ability to seek judicial review. See e.g;, Clifford v. Pena, 77 F.3d 1414, 1417 (D.C. Cir. 1996)(agency can facilitate judicial review by creating a standard in a rule). Absent the rule, trustees would not be able to obtain judicial review. E.g;, Joelson v. United States, 86 F.3d 1413 (6th Cir. 1996)(trustee termination committed to agency discretion and cannot be reviewed). This barrier does not exist with regard a trustee's ability to seek judicial review of the Program's expense decisions because the statute sets forth a standard of review. 28 U.S.C. 586(e)(1)(''actual, necessary expenses''). Our experience with the mediation proposal, however, may support future promulgation of a procedural rule to address expense disputes.
Question 12:
The Program currently operates through 21 regions across the nation. In 1995, the National Academy of Public Administration recommended that the Program eliminate its regional offices. Recently, there has been some discussion about reducing the number of regions to correspond to the number of federal judicial circuits. By eliminating more than one-half of these regional offices, would there not be a substantial savings to the Program?
ANSWER:
In November 1994, the National Academy of Public Administration (NAPA) was commissioned by the Department of Justice to evaluate the strengths and weaknesses of the United States Trustee Program's current structure and the feasibility of improving Program performance by recommending an alternative administrative and management structure. NAPA's report to the Attorney General in May 1995 credited the Program with improving case administration by imposing higher standards of accountability on private trustees and with developing an effective management control system to promote uniform and professional standards. It also recognized that the Program had achieved its primary mission of increasing public confidence in the bankruptcy system.
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At the same time, NAPA recommended a number of operational changes in the Program. These recommendations included revising the Program's regional structure, consolidating offices, increasing the use of outside contractors, adjusting the Program's fee structure to rationalize chapter 11 quarterly fees, changing the current system of case monitoring and administration activities, and improving automation links to courts and private trustees.
In May 1995, following the NAPA review, the Attorney General asked the Program's Director to take a fresh look at the United States Trustee Program and to develop an alternative organizational structure based on the lessons learned in the Program's first eight years and the need to adopt the most economical and efficient managerial configuration.
The Program's recommended changes to its managerial configuration were incorporated into the Administration's fiscal year 1997 budget request. Included in the FY 1997 budget request was a proposal to reduce the number of United States Trustee regions from 21 to 11 and streamline operations by reducing regional staff. Because reducing the number of United States Trustee regions required substantive legislation, the FY 1997 budget submission recommended delaying implementation of that component of the restructuring plan until the National Bankruptcy Review Commission had an opportunity to review and comment upon it.
The restructuring initiative in the FY 1997 budget proposed to reduce the number of United States Trustee (''UST'') regions from 21 to 11, making them generally the same as each of the federal judicial circuits (with the exception of the DC circuit, which would be aligned with the Program's Region 4) or some similar configuration. The Program's current configuration generally follows circuit lines on the east coast, but the merger of regions in other parts of the country would be necessary to comport with circuit alignment. The table above sets forth the correlation between UST Regions and the Federal Judicial Circuits.
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The Program's structure places a United States Trustee in charge of a defined geographic or judicial area. That structure allows the Program to successfully operate very small offices, many with less than five staff members, thereby providing broad service to the bankruptcy courts which sit in more than 300 locations nationwide.
Bankruptcy courts traditionally have been placed locally. They in turn closely reflect local legal culture and practice. The UST's discretion, judgment, and capacity to adapt policies to local conditions underpin the Program's independence that is critical to properly defending the public interest and the integrity of the bankruptcy system.
Unlike the United States Attorney model which places one of these senior policy level positions in every judicial district, the UST model in the 1997 budget recognized that bankruptcy administration could be successfully carried out with a smaller number of these senior level positions. When Congress expanded the U.S. Trustee Program nationwide in 1986, it established 21 such positions. We believe the Program has progressed to the point where it can now operate with as many U.S. Trustee positions as there are judicial circuits.
In proposing the revised managerial configuration included in the FY 1997 budget request, the Program believed a circuitbased structural model was preferable to total elimination of the U. S. Trustee regions because:
It aligned the United States Trustee regions with the federal judicial court structure which the USTs must work within.
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It was readily accommodated by the current Program structure, which has 5 large regions that are currently aligned with specific judicial circuits, (e.g., regions 1, 2, 3, 4, and 21).
The proposal maintained a strong executive level presence in the field, dedicated to ensuring that the offices are well managed and take appropriate positions in litigation and in regulating private trustees.
It helped to provide a more equitable distribution of the workload by increasing the size of some of the smaller existing regions. It also provided increased flexibility to meet existing crises or sudden swings in case filing patterns within the defined regional areas.
Bankruptcy case filings regularly reflect economic and employment changes and tides that cover at times wide areas and at times highly localized areas.
The revised circuit structure included in the FY 1997 budget allowed for an orderly transition, as the Program recommended that the circuit alignment be phased in as the appointments of existing U.S. Trustees expired.
Cost savings associated with the proposal total approximately $2 million annually—the amount of the salaries and benefits associated with the 10 United States Trustee positions that would be eliminated as a result of reducing 21 regions to 11 to match the current judicial circuit structure and some savings in non-personnel categories, e.g., space rental and travel. Savings associated with the elimination of regional personnel have for the most part already been achieved. Regional positions were eliminated as part of the FY 1997 budget process.
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Question 13:
To increase the Program's revenues, has any thought been given to the recommendation of the National Academy of Public Administration to remove the Chapter 11 quarterly fee cap and allow for proportional payments at the higher end of the fee schedule?
ANSWER:
The Program did submit a proposal in its FY 1997 budget that adopted one of the Academy's fee restructuring schemes. Congress approved the proposal, which resulted in a restructuring of almost the entire quarterly fee schedule and doubled the fee for those debtors in the highest category. While this has resulted in additional revenue for the Program, the decline in chapter 11 cases, if it continues, may offset the additional revenue gained by fee schedule change. The Program is considering fee structures that would rationalize fees paid by various chapter debtors to remove or reduce the Program's disproportionate dependency on chapter 11 fees.
Question 14:
What cost-saving initiatives has the Program undertaken in recent years? For example, in the Program's 1997 budget request, the Program stated that it was exploring the feasibility of video-conferencing to enhance communications capacity while reducing travel time and costs. What is the current status of this and any other efforts?
ANSWER:
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The Program has experimented with video-conferencing and found it to be useful for training purposes and small meetings. At this point, it does not appear cost-effective for the Program to install its own video conferencing system; instead, the Program uses existing facilities in the Department when available. We expect to increase our use of video conferencing to reduce the cost of travel, although we have already undertaken steps to reduce travel.
Many of the Program's cost-saving measures are tied to automation such as the efficient use of email systems and improved data gathering capabilities. In addition, the Program's future ability to electronically download reports from private trustees and others will improve productivity.
The Program's efforts in implementing the Administration's National Performance Review goals have resulted in cost savings as well. For example, delegation of purchasing authority to field managers using Government VISA cards has streamlined the purchasing process by eliminating several levels of review and saving the government money. This effort has improved service and reduced the payment of interest on late invoices.
| U.S. Department of Justice, |
| Office of Legislative Affairs, |
| Washington, DC, September 1, 1998. |
Hon. HENRY J. HYDE, Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
DEAR MR. CHAIRMAN: Please find enclosed answers to additional follow-up questions from the House Judiciary Committee's hearing on the Department of Justice Reauthorization. Answers are included that respond to questions from Rep. Meehan. I apologize for the delay in this response.
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If you have any questions, please do not hesitate to contact me.
Sincerely,
| L. Anthony Sutin, Acting Assistant Attorney General. |
RESPONSES TO QUESTIONS FROM REP. MARTIN T. MEEHAN
HOUSE SUBCOMMITTEE ON COMMERCIAL & ADMINISTRATIVE LAW
Donna A. Bucella
Director
Executive Office for U.S. Attorneys
U.S. Department of Justice
Question 1:
I know that U.S. Attorneys and task forces in which they are integrally involved have been spearheading efforts to combat hate crimes in our communities, particularly following the President's Hate Crimes summit late last year.
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I also understand that representatives from each of the U.S. Attorneys' offices were in Washington last Wednesday to attend a day-long conference on hate crimes with Attorney General Reno and Acting Assistant Attorney General for Civil Rights Bill Lann Lee.
Can you elaborate on the matters discussed at the conference, the progress made and challenges faced thus far on the front lines of fighting hate crime, and the need—if any—for additional federal legislation to strengthen your hand in this fight?
ANSWER:
In support of the Department of Justice Hate Crime Initiative, the Department sponsored a hate crimes conference on February 18, 1998, for more than 200 law enforcement representatives from the U.S. Attorney's offices, the Federal Bureau of Investigation, and the Bureau of Alcohol, Tobacco and Firearms. Presentations and panel discussions concentrated on hate crime task force development, legal and legislative overviews, and community resources for addressing the problem of hate crimes.
The centerpiece of the Department's Hate Crime Initiative is the formation of local hate crime working groups in each federal judicial district to be spearheaded or joined by each United States Attorney's office. The working groups will consist of federal, state, and local law enforcement, as well as community leaders and educators. Major issues discussed at the conference centered around the formation of local working groups, community outreach, data collection and analysis, the problem of under reporting by victims and law enforcement agencies, prosecution and enforcement, legislative initiatives, and current hate crime law.
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At present, United States Attorneys are organizing working groups throughout the country to discuss hate crimes and ways to combat them. Several United States Attorneys' offices have already conducted conferences and hosted working group meetings to address enforcement issues relating to hate crimes.
Regarding the prosecution of hate crimes, current federal hate crimes laws are inadequate in two significant respects. First, they provide no protection to victims of hate crimes committed on the basis of sexual orientation, gender, or disability. Second, even for categories of hate crimes that are covered by current federal law—those bias crimes committed on the basis of race, color, religion, or national origin—the principal federal hate crimes statute requires proof not only of the defendant's prohibited bias motive, but also of the victim's participation at the time of the crime in one of a limited number of ''federally protected activities.'' Together, these two aspects of the current statutory scheme greatly limit the ability of federal law enforcement to step in and fight hate crimes where state and local law enforcement officials are either unable to unwilling to do so in the first instance. The amendments to 18 U.S.C. 245 introduced in November 1997 by Senators Kennedy and Specter would address these problems while still respecting the proper balances in our constitutional system.
Question 2:
Can you point to some examples where the input of U.S. Attorneys—perhaps conveyed through your office—has had a tangible impact on the policy initiatives of Main Justice?
ANSWER:
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In recent years, United States Attorneys, through the Attorney General's Advisory Committee and the Executive Office for United States Attorneys, have had a tangible impact on a number of significant Department of Justice policy initiatives. Some of the issues presented in those initiatives have included:
Contact with represented persons and the proposed Model Rule 4.2 (governing contacts with represented persons) that the Department negotiated with the Conference of State Supreme Court Chief Justices;
Rule 16 of the Federal Rules of Criminal Procedure and attempts to change the discovery rules applicable in federal criminal prosecutions;
Proposed changes to the federal civil and criminal rules governing voir dire;
The Department's Giglio policy, which established procedural requirements for obtaining and disclosing impeachment information on federal agent witnesses;
The development and revision of the Principles of Federal Prosecution, which provide guidelines for the conduct of federal criminal investigations and prosecutions;
Drug interdiction and immigration issues presented by the Department's Southwest Border Initiative, which focuses on a coordinated response along the Southwest border to address drug trafficking and immigration violations in that area;
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Issues of concern to Native Americans, particularly those involving violent and juvenile crime and gambling on Indian reservations;
In the wake of recent domestic terrorist attacks and other violent acts targeting public institutions and facilities, the development and implementation of crisis response plans for the 94 United States Attorneys' offices, and coordination with the Federal Bureau of Investigation concerning its crisis response plans;
Community crime prevention and improvement programs such as Weed and Seed, COPS, and D.A.R.E. that have moved United States Attorneys into a leadership role in partnerships with local officials, agencies, and organizations to make the streets safer for citizens and enhance their quality of life;
Development and implementation of Alternative Dispute Resolution initiatives and education. This was of particular importance because of the burden on our available resources for civil defense litigation;
Development of the 911 compliance initiative to increase 911 operators' conformity with requirements of the Americans With Disabilities Act;
Review of the Department's Pro Bono Policy and expansion of it to allow greater pro bono opportunities for Department of Justice attorneys.
In many of these and numerous other areas, the AGAC has played a pivotal role in articulating the concerns and positions of the United States Attorneys. The AGAC, through its various working groups and subcommittees, gathers information, and examines issues. The AGAC presents issues important to the United States Attorneys to the Attorney General for her consideration, along with a thoughtful and thorough analysis and recommendation for proposed action.
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Question 3:
Which is the more significant obstacle that U.S. Attorneys' offices face in combating child pornography and predatory behavior associated with the Internet and computer on-line services: insufficient personnel and support resources or an inadequate federal statutory scheme for offenses and penalties?
ANSWER:
With respect to resource needs, for FY 1999, the U.S. Attorneys requested 36 positions, 18 FTE, and $3,630,000 to address computer crimes, including electronic transmission and receipt of child pornography. The use of national on-line computer services and the Internet presents unprecedented opportunities for the wide distribution of child pornography and for the exploitation of children who use the Internet. The increasing proliferation and sophistication of national and international computer crime, including trafficking in child pornography, will require government agencies to devote more resources to the investigation and prosecution of these crimes. For example, the Federal Bureau of Investigation, which has three National Computer Crime Squads in major high tech regions, has requested resources to establish two additional squads. Any increase in investigative resources will require a commensurate increase in prosecution resources from United States Attorneys' offices. These types of cases put tremendous demands on our available technical resources.
The Department supports some of the pending legislative proposals in the child pornography area. We will provide our specific comments as those proposals are considered and will be happy to work with the Congress to strengthen the law in this area.
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Question 4:
Do you know how long it takes for a typical U.S. Attorney's office to dispense with a typical employment discrimination case?
ANSWER:
Employment discrimination cases generally take between six months and two years to resolve. Many factors account for the time variances, including: the nature of the claims; the number of witnesses; the nature of the damages claimed; the nature and length of the underlying administrative process and resulting administrative record; the manner in which opposing counsel conducts discovery; and the court's calendar.
Employment discrimination cases subject to the Civil Rights Act amendments of 1991 permitting jury trials and compensatory damages clearly take longer to conclude than they would have prior to the amendments. The nature and amount of discovery, as well as the sheer length of case presentation, is significantly increased as a result of these changes to the law. The availability of compensatory damages has made it more difficult and time-consuming to settle these cases, and fewer cases are being resolved by summary judgment. In addition, the increased volume of these cases in United States Attorneys' offices sometimes impedes their prompt resolution. Since the passage of the 1991 amendments, employment discrimination filings have increased 59 percent (from 1,059 complaints in 1991 to 1,684 complaints in 1997).
Question 4A:
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Why would the provision of greater civil defense resources result in an increase in the number of jury trials resolved in favor of the U.S. in employment discrimination cases?
ANSWER:
Additional civil defensive resources will allow for more complete and thorough preparation of cases that result in jury trials, thereby increasing the likelihood that verdicts will be rendered more favorably to the United States. However, the goal of the United States is not just to win jury trials in employment discrimination cases. The government is primarily concerned with determining the merit of claims of unlawful discrimination in the government workplace, resolving valid claims fairly, and discouraging the filing of fraudulent discrimination claims. Additional civil defensive resources will, of course, enhance our ability to meet these goals and to reach a satisfactory resolution of these cases prior to trial. Specifically, having more attorneys available to handle the non-discretionary civil defensive caseload in the United States Attorneys' offices would allow more time for analyzing discovery and administrative materials, investigating the facts of the case, preparing stronger dispositive motions, and negotiating complicated settlement issues.
Joseph Patchan
Director
Executive Office for the U.S. Trustees
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U.S. Department of Justice
Question 1:
To what extent do you attribute the striking increase in consumer bankruptcy filings over the past few years?
ANSWER:
We have not done an independent study of this matter. As you know, various other reports have attributed the increase to a variety of causes, including high levels of consumer credit card debt and a relaxation in some parts of the country of the stigma of being a debtor. Unfortunately, we currently lack the data to provide a clearer picture of what is driving the increase.
Question 2:
You note in your written testimony that U.S. Trustees bring motions under Section 707(b) of the Bankruptcy Code to dismiss bankruptcy filings where the debtor had the ability to repay his or her creditors. Do you believe that additional federal legislation is necessary to help to spur U.S. Trustees to weed out all cases where a debtor has the ability to repay a substantial portion of his or her debts?
ANSWER:
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As we indicated, we are active in filing motions under Section 707(b) where there is evidence of ''substantial abuse.'' We are currently studying the question whether additional federal legislation is necessary, working together with other Department of Justice components and Federal agencies.
Question 3:
Obviously, the successful functioning of the bankruptcy system rests on whether debtors fully disclose the extent of their income, assets and financial transactions. Is less-than-full disclosure or outright fraud by debtors a considerable problem in today's bankruptcy system? And would the adoption of legislative initiatives to restrict eligibility for Chapter 7 relief lead to increased fraud or non-disclosure on the part of debtors?
ANSWER:
We believe that less-than-full disclosure and outright fraud are problems in today's bankruptcy system. As indicated above, we are studying with other Federal agencies the question whether additional federal legislation is necessary to address this problem.
Karen Schreier
U.S. Attorney for the District of South Dakota
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Vice Chairman
Attorney General's Advisory Committee
Question:
Ms. Schreier, you paint a very disturbing picture of juvenile crime on Indian reservations in South Dakota. Certainly, the emergence of gangs on reservations and more frequent possession of firearms by young people is a recipe for disaster.
Yet the city of Boston faced a similar crisis a few years ago but has since made significant strides in controlling juvenile crime. It did so by adopting a combination of cutting-edge anti-crime strategies ranging from Operation Night-Light probation monitoring to crime gun tracing to community-coordinated after-school educational, vocational and recreational opportunities. Indeed, I recently joined Attorney General Reno and U.S. Attorney Don Stern at a juvenile crime forum in Boston, at which time the Attorney General once again proclaimed that city's anti-crime efforts to be a ''national model.''
In your opinion, to what extent would a similar strategy cut down on serious and violent juvenile crime in Indian Country?
ANSWER:
Anti-crime strategies are more difficult to implement on Indian reservations than in a defined urban environment. Due to the limited federal funding of tribal courts in the past, none of the nine Indian reservations in South Dakota have tribal court probation officers. As a result, there are no local probation officers who can ride with the tribal police to participate in a project like operation Night-Light probation monitoring. The primary success of operation Night-Light has been the result of the cooperation between probation and the police. Many of the Indian communities in South Dakota are in areas of high unemployment and high poverty. These communities do not have the financial resources to implement community-coordinated after-school educational, vocational and recreational opportunities. As grants become available in these areas, my office has been notifying the tribes of grant opportunities.
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The Boston anti-crime model has been highly successful in an urban environment. With additional financial resources to build the infrastructure for a juvenile tribal court system, including probation officers and placement alternatives, combined with resources for after-school opportunities, I believe this model would also be effective in reducing juvenile crime in Indian country.
(Footnote 1 return)
Depending on the number of cases that are filed, the United States Trustee will appoint one or more standing trustees in a district to handle all the chapter 12 or chapter 13 cases filed in a certain area.
(Footnote 2 return)
In the Program's history, the only year that filing increases have exceeded the 1996 and 1997 filing rates was 1986, when filings increased by 32%.